These days, when information can change hands as easily as a snap of a picture or the click of a button, we are often asked, “What can Litigation Insights do to ensure my client’s confidentiality in mock trials?” We can certainly understand the importance of this question as it can have a major impact on any case, but the good news is, there are many ways to preserve confidentiality.
For each research project that we conduct, Litigation Insights follows a set of evolving standards we have put in place over the past 20 years to maximize client confidentiality and minimize client concern. While we tailor our approach based on each client’s individual needs, there are some fundamental steps we take to protect confidentiality. (Please see our previous blogs here for additional information regarding the questions clients should ask about confidentiality.)
Keeping Jury Research Confidential
As professionals in the legal industry, trial consultants are well aware of the importance of maintaining client confidentiality. Like law firms, we conduct conflict checks, employ extra levels of IT security and take various other steps to safeguard client information. However, when we conduct jury research, our task becomes much harder.
- Choosing the Right Location. There is no question, the best place for pre-trial research is right there in the trial venue. The demographics, local influences and attitudes that shape a jury will be more easily replicated if mock jurors are recruited from the actual trial jurisdiction. However, there are some very good reasons to change to an alternative venue; and one of those reasons is confidentiality. Whether it be that the jurisdiction is too small and everyone in town knows your client personally, or there has been a massive amount of local publicity in the venue and it is hard to believe an impartial resident is left in the jurisdiction, Litigation Insights can work with you to find a comparable surrogate jurisdiction where there will be less concern over mock juror confidentiality.
- Being Discreet. Jury research projects, by their nature, involve a lot of different players, anywhere from the recruiter to the facility/hotel staff to the videographer. It is important for all of those players, no matter who they are, to both understand the terms of their confidentiality and agree to abide by them. While it makes the most sense not to divulge any confidential information to these parties (discretion is first and foremost), sometimes, depending on their role, sharing some information cannot be avoided. In these instances, having these players sign confidentiality agreements is essential.
- Hiring Reputable Recruiters. Mock jurors are usually recruited through market research recruiters, and it is important to deal with reputable companies that will scrupulously adhere to your screening requirements. For example, we generally require that potential jurors have never participated in a jury research project. Among other things, this helps avoid the possibility that a juror may have served as a mock juror for the other side.
- Screening Rigorously. In addition to screening for demographics that are representative of the venire, we work with our clients to develop a comprehensive list of names to be read to potential jurors during the screening process. This includes parties, witnesses, law firms and lawyers. Anyone who knows or is familiar with any of these names is automatically excluded, as are people who work in various fields such as law, marketing and journalism.
- Checking and Rechecking. When jurors arrive onsite, they are rescreened and fill out a comprehensive background questionnaire. These questionnaires are reviewed by our consultants on site to identify anyone who might have slipped through the screening or might have a heightened interest in the case. For example, while representing a manufacturer in a toxic contamination case, we would probably not seat a juror who had a very bad experience with a chemical manufacturer.
- Employing Confidentiality Agreements. Of course, the key to protecting a client’s confidentiality in a mock trial or focus group setting rests with those members of the community who are recruited to provide their feedback. All of our mock jurors sign a detailed confidentiality agreement. In addition, during orientation we painstakingly go through the agreement with the group. We explain the gravity of violating confidentiality and remind them they are legally bound to uphold their agreement.
- Disconnecting. It is not only an exercise in separation anxiety, but it is also an excellent way to protect clients’ confidentiality. In this digital age where most everyone has what is essentially a personal computer with a camera in their pocket or purse, smart phones are a significant confidentiality concern! That’s why for the past six years we collect every mock juror’s phone (and any other device with a wireless/cellular signal and/or camera) before they hear a single shred of evidence. Of course, we return the phones/devices at the end of the day, but we take this step to help panelists avoid temptation.
- Gaining Commitments. And then to serve as reinforcement, and to show jurors how committed we are to confidentiality, we explain it again before jurors leave and require them to verbally declare that they will abide by their confidentiality commitment on video before the cameras are turned off.
- Limiting the Dissemination of Information. While providing actual case information is important to obtain accurate results, there are ways to minimize its dissemination. For example, at the end of a research exercise, any documents provided to jurors should be collected, along with any notes they took.
- Changing Names (Sometimes). One way to further protect a client’s confidentiality is to change the names of the parties and/or attorneys for presentation purposes. At face value this seems like a good way to safeguard confidentiality; to avoid having a juror go home and Google for more information about the dispute or try to contact one of the parties. However, the downside is that changing names can sometimes be problematic and difficult to implement. Documents may need to be changed or redacted, witness clips may need to be edited and inevitably a slip of the tongue will occur during presentations, which can cause jurors to question the authenticity of the project.
Is Doing Mock Trials or Focus Groups Worth the Risk?
At the end of the day, no trial consultant can guarantee absolute confidentiality will be maintained, but the value of testing your case before a representative sample of mock jurors cannot be overstated. With proper planning and help from an experienced litigation consulting firm, your confidentiality concerns, and those of your client, can be managed and you can both walk away from the jury research project with the confidence that numerous steps were taken to maintain confidentiality.
By: Jennifer Nemecek, Consultant and
Patricia Steele, J.D. – Senior Consultant