You hire the jury consultant. You do the test. You learn a lot. Then, the consultant recommends a follow-up test.
Your immediate reaction might be, “Of course you think there should be multiple tests; you’re the jury consultant….” We get that. But lest you worry that we’re just pursuing our own self-interest on your dime, we’d like to take this opportunity to explain exactly why we encourage follow-up tests. Whenever we do so, the reasoning comes down to finding the best way to meet your specific research goals and advance your case strategy.
Different Types of Jury Research
Jury research designs generally fall into two categories – inductive research and deductive research. The type of research you choose depends on the questions you want answered, and where you are in the litigation lifecycle. While you can get a deeper look into these two jury research types in a previous blog, here’s a short rundown:
Inductive research, like Focus Groups, tends to be conducted during the earlier stages of litigation. It uncovers potential jurors’ implicit assumptions, questions, and reactions to your case facts – both positive and negative. It also explores their prejudices and expectations. The value of inductive research isn’t in offering insight into jurors’ verdict decisions, possible damages ranges, or opinions about specific witnesses; rather, its value lies in the way it helps you focus and structure your case. You’ll know right away – potentially as early as discovery, depending on when you conduct the research – what general themes are likely to resonate, what facts are most important, what questions you’ll need to clearly answer, and what false assumptions you’ll need to correct. No time wasted pursuing a faulty strategy.
The deductive research umbrella covers designs like Mock Trials and Deliberation Groups. These are for actively testing out case themes and strategies, gaining an understanding of what reasoning jurors use during their decision-making, and, if desired, eliciting evaluations of key witnesses. Such projects not only track how jurors react to your case (and your opponent’s) as it unfolds, but also allow you to watch jurors as they discuss and deliberate to a verdict. Deductive research is particularly good at providing feedback about the vulnerabilities and ambiguities in your case, how to mitigate those before trial, and how to frame your themes to better connect with jurors.
The Benefits of Multiple Jury Studies
Multiple Inductive Tests
Ever wish you could take back some of your witness’ deposition testimony? Did it end up being confusing, unhelpful, or damaging? Did it fail to mesh with your eventual case strategy and themes? Unfortunately, once your witnesses are deposed, you’re stuck with it. So, a major reason you’d benefit from inductive research early in the litigation process is to hone your themes and understand your strategies and shortcomings in advance of deposition; that way, your witnesses can incorporate this information, offering continuity between the deposition and your arguments. Multiple inductive tests allow you to dive deep into specific issues and hone your themes even further.
Inductive Followed by Deductive
With this common combination, an inductive test first focuses your case and offers major themes to develop (often, a juror’s own articulation can become the perfect theme idea!); then, a deductive test evaluates those themes in an adversarial format, where jurors deliberate to a verdict at the end of the day. As a result, you’ll discover how well jurors assimilate your themes and whether there might be an even better way to present them. This combination builds a powerful foundation for your themes and case strategies.
Multiple Deductive Tests
To develop the most persuasive narrative, become fully aware of your strengths and vulnerabilities, and enter trial (or settlement) with an understanding of your case value and exposure, multiple deductive tests are the key. Retesting allows you to fine tune your strategies and themes so you can reach jurors as effectively as possible.
Here’s a real-life example: In one instance, despite being accused of breaching a multi-million-dollar contract, our client believed they had a winnable case. The mock trial results, however, clearly suggested otherwise. In an effort to improve their position, we recommended a second test in which we would change up the defense strategy. While their initial strategy was to respond to each plaintiff claim head on, it made the client look defensive in the eyes of the jurors. So, the second time around, our client instead took an affirmative approach to explaining why it cancelled the contract, citing the plaintiff’s many operational failings in delivering the promised machinery on time and under budget. In this second mock, our revised strategy showed significant improvement in favor of our client’s position. The case was taken to trial and the jury came back with a defense verdict consistent with our second mock trial results. Now, if the client had stopped after the first mock trial, it would have spent a lot of money settling the case. But by conducting a second mock trial – a cost significantly less than settlement – they gained foresight into the benefits of adjusting their case strategy and ultimately saved themselves a whole lot of money.
Bonus: Adapt to Different Venues
Multiple tests are particularly advisable when you have (or expect) multiple cases of the same type down the line – especially when those cases are in different venues. Different areas of the country often have different values and mores. Themes that work in one area don’t always work in others. Multiple tests allow you to tailor your themes and arguments in such a way that they can be assimilated by the jurors in your actual trial venue.
Bonus: Economies of Scale
It’s worth noting that follow-up projects are usually less expensive to conduct. The consultants are already filled in, and many of the questionnaires and other materials have already been created. The fact that the test designs, results, and recommendations are building upon an already-strong foundation means you’re not being hit with nearly the same costs as if you performed multiple one-off tests.
Rest assured, at Litigation Insights we are always keeping your research goals in mind. If we believe that the best way to reach those goals is by conducting multiple tests, we’re going to tell you that. But, if we think multiple tests will only offer diminished returns, we’ll tell you that as well. At the end of the day, we’re focused on helping you present your best possible case and achieve the best results.
By: John Wilinski, M.A. – Consultant