As most litigators know, jurors’ attitudes and opinions often influence how they filter the facts of a case. It is through these lenses that jurors develop their perceptions of the parties and their corresponding motives, which ultimately shape the verdict outcome. The party who can synthesize the case into a compelling story that jurors can comprehend—and feel satisfied adopting—will have an advantage at trial.
Jury research is used to develop and refine such a story, a thematic narrative that resonates with jurors and arms defense supporters to advocate on behalf of your client in deliberations. It involves learning in advance how jurors will simplify the case in their effort to evaluate which of the two competing cases to accept. Because jurors’ own experiences and predispositions will inform this evaluation, it is crucial to ascertain their emotional and cognitive responses to the plaintiff’s claims, as well as their reactions to the overarching themes and arguments in your case.
But not all jury research is the same. There are multiple design structures, each with advantages and disadvantages depending on your research goals and the stage of your litigation. To maximize the benefits of research, here are the top considerations:
Focus Groups: Advantages and Disadvantages
An inductive research model (i.e., focus group) is more appropriate when your goals include eliciting insights into jurors’ comprehension of the case issues and how they view the case story, as well as revealing potential case themes—often using jurors’ own words—based on their understanding of what “really happened.” Focus groups peel back each layer of jurors’ preexisting views little by little, uncovering their assumptions, questions, and reactions. They explore jurors’ personal experiences and concerns while revealing their prejudices and expectations.
Using this model allows jurors to tell us not only what questions they need answered, but why those answers are important, helping us further guide discovery and the initial development of your case themes and strategies. It can even help determine what types of witnesses jurors will expect to hear from, and what they will need to hear from those witnesses to be persuaded. Therefore, inductive research is best utilized earlier in the litigation lifecycle, as it offers foundational guidance as the case progresses.
For example: in a water contamination case, the plaintiff was seeking remediation. However, early in the focus group discussions, the mock jurors quickly asked, “How many people are sick?” Their reactions told us that we needed to neutralize this automatic assumption of human harm with a theme that clearly explained up front that there would be no evidence of injuries or illness in this case. A simple question led to a vital case theme, all based on discovering a knowledge gap that had been taken for granted.
While you can learn a lot of valuable information from a focus group, if you want to learn more specifically about how advocacy affects jurors’ decisions (including the range of damages), a deductive research design—complete with jury instructions and deliberations to a verdict—may be the better option.
Deliberation Groups and Mock Trials: Advantages and Disadvantages
A deductive model (i.e., mock trial or deliberation group) is more suitable when your primary goals include evaluating the strengths and weaknesses of both the plaintiff and defense cases. This includes receiving feedback on arguments, evidence, witnesses, themes, and the rationale behind jurors’ damage assessments. Deductive research better approximates how jurors hear information at trial, and as a result, better examines the influence of group dynamics within the deliberation room as jurors negotiate to reach a verdict. It is also especially useful in developing the jury profile for use in jury selection, as it better identifies the strongest advocates for each side. For these reasons, a deductive model is best pursued once the major components of your case have been established, such that your key narrative components (and even corresponding graphics) can be workshopped and refined.
The difference between a deliberation group and a mock trial comes from how the cases-in-chief are delivered to jurors. In a deliberation group, attorneys present each side through an argumentative narrative, incorporating exhibits, evidence, and witness deposition transcript or video clips, if available. In a mock trial, the evidence is presented more like it would be in trial—from a series of witnesses. Witnesses can be live or presented as longer deposition videos, but the attorneys deliver their argumentation only in openings and closings.
If a deliberation group or mock trial is designed appropriately to maximize its external validity, drawing generalizations from the data is appropriate. And while no research is designed to predict what will happen at trial, deductive research can help you answer which case themes are working or not working, how jurors respond to your witnesses, what range of damages jurors deem appropriate, and the profile of the potential jurors you will want to de-select at trial.
Other Considerations: Number of Jury Panels
Many factors influence the number of jury panels used for a research project. The main factors to consider are the test design (inductive vs. deductive), whether a range of damages will be assessed, and the timing of the research exercise, as well as the overall budget.
It is important to remember that jury research is based on social-science research methodology. The number of panels used in a research project has strong implications for two significant methodological principles: the reliability and the generalizability of the results.
While a focus group is centered around receiving broader juror opinions and is therefore slightly less beholden to these principles, ensuring the results are reliable and generalizable is critical to a mock trial or deliberation group. A lack of reliability runs the risk of creating a false positive (a misguided belief in the strength of your position), which is an even more dangerous situation for your client. The more jurors there are providing feedback and the more verdicts you receive, the more you will be able to trust the results of your research.
Multiple deliberating panels are especially important when a goal of the research is to assess damages; because two groups will often arrive at different verdict decisions, a third group often proves invaluable as a “tie-breaker.” Further, generalizability (also known as external validity) refers to the ability to apply the research results to a real-world setting. The generalizability of your results will depend on the mock jury panel demographics and sensibilities mirroring the actual jury panel as closely as possible. Obtaining a larger cross-section from a population similar to that of the trial venue increases the likelihood that your data will accurately reflect the attitudes of the actual jury pool.
We find that using three panels of 10 to 12 jurors each is appropriate for most deductive designs, but a couple of additional factors can affect what is feasible. If the deductive research is conducted very close to trial, sometimes it is not possible to recruit enough quality jurors to fill three juries. In such instances, two jury panels is acceptable. And, of course, client budget is always a consideration. While using three juries remains the best option, one potential cost-reducing solution is to adjust the size of each panel—e.g., to three groups of eight jurors each, instead of 10 to 12.
Although focus group participants do not typically deliberate or offer a range of damages, they do engage throughout the day in group discussions with a moderator. These discussions may occur among a single, larger group or in separate, smaller “breakout” groups. Using one large panel can be appropriate here; however, focus groups tend to be more manageable using two, 12-person panels, because with larger groups it can be difficult to hear from every juror in the time allotted for discussions.
Other Considerations: Juror Recruiting
Everyone knows that good food starts with good ingredients, and the same goes for jury research. The recruitment of mock jurors can make or break the quality and reliability of the research results. Careful steps must be taken to recruit jurors who will match the real jury pool after hardships are considered, rather than recruiting from unemployment agencies, church rosters, university students, and the like. Jurors in court have to take off work during the weekday, so paying mock jurors well can increase the likelihood that the recruits will match the actual jury pool make-up.
Screening mock jurors during the recruiting process is very important, as the main goal is to avoid participants with ties to the parties, witnesses, companies, or anyone else involved in the case. When potential participants are called, they complete a rigorous screening process that disqualifies anyone who has notable knowledge of or connections to the case. Jurors with too much interest in the case at hand may struggle to keep confidentiality, despite their best intentions.
Jury research is a useful tool throughout the litigation lifecycle; its proper usage simply requires an understanding of your options. Early inductive research can reveal key themes and communication gaps, allowing trial teams to weave their case story using jurors’ own words. Deductive, verdict-driven research can then provide important information about remaining case vulnerabilities and allow attorneys to capitalize on the case’s strengths, further honing the thematic narrative. Those deductive designs also provide invaluable, statistical jury profiles for use in supplemental jury questionnaires, voir dire development, and your strike strategy during jury selection.
This article was originally prepared for the American Bar Association’s 2023 Litigation Section Annual Conference.