Source of article Litigation Strategies.

There’s this legend that persists about pretrial jury research. No one knows how it started. Those who first told the tale have probably litigated their last and have gone on to emeritus status. The legend persists and it begins with, “There is a tool so fearsome and dear that only the rich and the brave ever even inquire about using it. It’s called the “Focus Group” and is so lethal that one must only use it  just before trial and then only when the consequences of failure are dire.”  Except for a few folks, almost every trial attorney I know has at one time or other either heard the legend or retold it to the clinking of ice and rising smoke of a sacred Cohiba.  Partners, Stake Holders and Acolytes nod their heads in silent and knowing agreement. The legend persists mythically, for like the dragon’s lair, most knights avoid confirming weather the Lizard King actually breathes fire.

Jury research is a valuable tool for understanding and developing your case in every stage of preparation. Below are a few benefits of conducting  jury research in preparation for settlement conferences and mediation. The core benefit of such preparation is to identify in advance how the elements and narrative of the case will play with the fact finders rather than to float your case out merely on the strength of your ardent advocacy. Here are some more arrows for the pre mediation quiver:

  • Doing the research early in discovery and ongoing allows you to find and fix problems in the case long before it’s crunch time.
  • You’ll learn just what jurors want to know and what they make of what they learn.
  • You’ll find out how to target discovery in a manner that addresses what the jurors want to know.
  • You’ll develop congruent and persuasive case themes and narratives that bind your facts and evidence into a readily digestible story.
  • Disclosing the fact of your research during mediation shows your superior level of preparation and that can provide a psychological advantage from the start.
  • The research results will pre-arm you with a clear understanding of the strengths and weakness of your opponents case which can aid you in countering issues in the mediation.
  • Use your research to let the opponent know that you have discovered and targeted their vulnerabilities.
  • Your research can survey prevalent attitudes and expectations that will play out in the juror deliberations.  You can use that information to persuade your opponent that you have learned from your research how to take best advantage of what helps you and best advantage of what hurts him.
  • Use what you’ve learned about the jurors sentiments regarding damages to drive higher settlements or stick a pin into grandiose dollar demands.
  • Rely upon professionally designed and valid litigation research rather than your “gut feeling” or the strength of your chest pounding.

Jury research, in order to be reliable and valid, needs to be carefully designed with an eye to the standards of social science research. Validity can be adversely affected by poor sampling of the venire in recruitment and sample size, disclosures to the jurors that result in “satisficing” responses intended to give the attorneys what they apparently want, poorly conceived and conducted presentations (especially of the opponent’s case), and the inherent bias of the sponsoring attorney who is never able to give equal shrift to both sides of the case.

The “talking points” that emerge from pre trial/mediation research are powerful adjuncts to your case preparation and take your advocacy to higher levels of proficiency and preparedness for your clients. Sponsor pre trial/mediation research early in case development. It is an investment that pays off in efficiency, relevance and the horsepower of your case advocacy.

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