Source of article Litigation Strategies.

Much of what you need to know about your venire is out there. It’s reliable. It’s enlightening. It’s free.

Preparing your case for trial involves packaging, that is, arranging your case fact pattern, exhibits, and witnesses within a framework and narrative that is readily understandable and readily merges with the values and expectations of your jurors. Any case can enormously profit from the qualitative results from pre trial jury research. The very best approach is professionally conducted focus group/mock trial research, but not every case can support the resources required for this effort.  In this entry, I’ll suggest a readily available, reliable and utilitarian alternative: National and Regional Polls.

Demographic profiles alone are dismally inaccurate in predicting the behavior or attitudes of any one particular individual. Such is the credo of jury consultants, marketing mavens, political pollsters, etc. Survey and polling data as analyzed according to demographic features cannot and will not predict how Joe Sixpack will vote on your jury. Polling has decent reliability and predictive validity when predicting the behavior or values of large populations, but not any single individual within the population.

Does that mean that attending to the patterns in the national or regional polling data is a waste of time? Far from it. Polling data is useful in imagining venire values and attitudes and in preparing a general deselection template based upon polling results from the general population. What national and regional polling data can prepare you to do is to make probabilistic determinations of what will be readily accepted, or not accepted within the venire and also aid in composing your voir dire and making  jury strike profile determinations.

You can generally rely upon the survey experts of national and university polling groups to apply the standard of care in population sampling, question design and measurement metrics. These polls can generally be accepted as reliable and valid measures of the issues being examined.

Survey professionals create reliable measurement metrics that reflect the relative weight of knowledge or attitudes of interest  that are further broken into demographic categories of Age, Gender, Income, Education, Political Affiliation, etc. That is, the demographics reflect a generalizable inference regarding the relative personal interest (values & motivations), knowledge base (education and occupation), and attention (application of time and knowledge resources) that accomplish better or poorer scores in the areas of interest to the researcher and to the trial attorney.

There are hundreds of useful polls and surveys readily available for free and on line.  In addition to the Pew Polls, there are the Harris Poll, the Gallup Poll, the Rasmussen Report,  just to name a few.  Major broadcasters like CNN  and major publishers like the Washington Post will sponsor or conduct polling. Many Universities regularly engage in regional or even national polling relevant to the trial attorney.

How to best use polling data?  Think profiles. Here are two examples.

In the most recent Pew Research Center News IQ survey the survey mavens of Pew take the “current events awareness” pulse of a representative sample of the adult American population. A survey such as this provides a very rich source of useful deselection profiling information for the trial attorney.

In an older, but very useful survey, the Pew Research Center Survey on Luxuries and Necessities reveals just what folks think they must have and what they won’t live without.  In polling such as this, trial attorneys can get a read on tangible elements of day to day life that can inform and guide the framing of damages arguments.

This News IQ survey provides the attentive user with some patterns and  indications about ‘what kind’ of juror is attending to, understanding and retaining information about the current economic events, for example. Individuals attend to those things that are personally or professionally salient, have some utility, advance or express their interests, and reflect their abilities and aptitudes. The relative scores of each demographic category reflect the success of individuals within these categories to apply their attributes and successfully absorb, comprehend and apply their acquired knowledge.

Information like the Pew Research Poll on Luxuries and Necessities is hugely valuable. The research shows that the public has absorbed technological conveniences into their day to day life and now considers them necessities to live an average life. These findings serve as a reminder that the opposite of that old saying about the Mother of Invention, is also true: invention is the mother of necessity.

Arguing the present and future needs of a harmed and disabled plaintiff, this data presents a solid picture of what is tangible and necessary for now and provides for a great example of how technology that has yet to be developed should be accommodated in the damages as it will be necessity in the future.

Polling data can be used to infer and extrapolate underlying values, attitudes, preferences and the like as they differentially apply to different demographic cohorts. For example, the News IQ data above shows that males, over 50, college grads, earning over $75K annually and affiliated with the Republican Party have the highest scores on the News IQ.  One can infer a greater attention to current economic and political events, economic self interest, application of more developed reasoning skills, etc. The trial attorney would then consider how these features might facilitate or frustrate your case theory and verdict.

The astute trial attorney is also always cognizant of cognitive errors such as the representativeness heuristic: where you wrongly assume commonality between a person and a group they appear to fit into. Knowing that the data does not predict the behavior or attitudes of any one individual, even if within the group defined, further voir dire is critical, of course.

In summary, national and regional polling on the full spectrum of attitudes, behaviors and beliefs representative of the population and therefore the venire panel is a virtual gold mine of pre trial jury information useful in framing your case and defining your deselection profile. Make yourselves familiar with the larger polls. Follow the jury consultants on Twitter (JuryVox, Anne Reed, and TheJuryExpert) that post jury related polling data and commentary on a regular basis. Become an educated consumer of this service that aids you in your pursuit of justice and a just verdict in trial.