The Sample
Statistical sampling is a key component of the scientific process. Failure to use a random method of juror sampling invalidates the whole jury research process. Unfortunately, most research organizations fail to procure a random sample therefore producing unscientific results. Common practice within the industry is to place a newspaper ad in the classified section, ask for referrals from participants or use temporary agencies. All three of these methods fail to produce a valid sample of jury eligible citizens. The classified ad for example, self selects for those actively looking for jobs or wanting to change occupations. No wonder these participants are more likely to be unemployed or underemployed than generally found in the venue. Unfortunately, the effects these poor sampling methods have on outcomes cannot be ascertained and therefore results can be misleading.
Many of our competitors take short cuts to save money. For example, participants are re-used or referrals are obtained. Both of these methods, although inexpensive, produce biased jurors. The only way to have a scientifically viable panel is to randomly sample research subjects for each engagement.
Random sampling is more time consuming and expensive, but it is unquestionably worth the extra effort and expense. We randomly sample local residents using random-digit dialers, over the course of several days and different time periods. We believe the sample is the single most important factor affecting the validity of jury research. Until the court starts placing ads for jurors in newspapers or asking for referrals or hiring temporaries, we will continue to randomly sample ours.
Iterative Testing
Iterative, or phased, simulation has an impressive history when applied to high-risk projects. From large-scale military maneuvers to delicate surgical procedures, simulation has been used successfully to plan, prepare and carry out operations. The key ingredient to effectively applying simulation in any endeavor is three-fold: Understanding problems, adapting (making changes), and re-testing after incorporating lessons learned.
In the past legal teams used simulations as one-shot affairs--the jury panel or panels deliberated after one presentation and the attorneys based their trial strategy on the outcome. However, this approach fails to take advantage of the key feature of properly designed simulation—repetition. By conducting research in a series, arguments and visual aids can be refined and reshaped based on the previous research results, then re-tested in front of a different panel.
By correctly applying simulation to case evaluation, research outcomes that may be unrepresentative or even anomalous due to uncontrolled variables such as case presentation or group makeup, are minimized and are therefore not erroneously applied to trial or settlement strategy. Additionally, the trial team receives more specific and complete feedback than is available from a one-time focus group or mock trial. Best Evidence has devised a cost efficient research protocol that fully takes advantage of the logic of simulation, which we tailor to the individual needs of each client.
Total Cost
The value of jury research is determined by the team‘s ability to put the information learned to good use. Traditionally, mock trials and focus groups have been conducted late in the case cycle and in reaction to problems. What is discovered can have only marginal effect on outcomes and allows only superficial changes to be made to the case story, because at this stage it is too late to “turn around the ship.” The value of the research is limited because underlying structural problems remain in the case. Best Evidence performs research serially, starting early in the case cycle to uncover and address such problems head on. What mock jurors tell us about the case can be used to direct discovery and frame the case for mediation and trial. Instead of hoping for a better outcome at trial, strategic changes can be made early on and actual results observed. Our research protocol allows us to test early and inexpensively, to re-test using what is learned, and to improve outcomes dramatically. Having the opinions of randomly-sampled mock jurors guide activity throughout the case cycle provides more real value than a late-stage mock trial or the opinion of so-called “jury experts.”