Exciting News!

Dear Followers of the The Jury Box,

It is with great excitement and anticipation that I write today to tell you all that I have recently accepted a position with TrialGraphix, the nation's premier full-service litigation consulting firm. The company website can be found at trialgraphix.com.

TrialGraphix, as its name would imply, is known for unparalleled design and execution of courtroom graphics and animation. Many of you know my views on the importance of visual learning among jurors, so I am thrilled to be associated with a firm at the cutting edge of that field. Now, I can not only make recommendations to my clients about demonstratives, but I can offer those clients the talent and resources at TrialGraphix to make those demonstratives come to life.

TrialGraphix is also at the forefront of trial technology, providing the expertise and technical solutions for any litigator's courtroom needs.

Of particular interest to me -- and you, too, I hope -- is TrialGraphix's long track record as one of the country's most respected jury consulting firms. One reason I agreed to join TrialGraphix is the tremendous respect I have for the jury consultants who are already there. I can't wait to work with them and to introduce them all to you.

For those of you who have worked with me in the past, rest assured that I remain committed to serving the needs of my existing clients. I will be running the jury consulting practice in the New York City office, which is a big change for me, but I will be in Boston often. This position provides me with the best of both worlds: the opportunity to continue to serve my New England clients and the potential to help future clients all over the country.

Since I have subscribers to the Jury Box from all over the country (and even other parts of the world), I want you to know that there is probably a TrialGraphix office near you. The company has offices is San Francisco, Los Angeles, Chicago, Houston, Minneapolis, Miami, Washington and New York. By all means, feel free to contact me directly with any jury issues that come up, but know that we have experience working in every state.

I plan to continue to publish the Jury Box Blog in much the way I have always done so. I apologize for the recent dearth of posts, but I have been quite busy preparing for my new job. I expect that the logo will change to reflect my association with TrialGraphix, but otherwise it will remain pretty much as is. I hope to get some of my new colleagues to contribute guest posts for time to time, especially in the courtroom graphics and trial technology fields.

Thank you all for your continued support of the Jury Box Blog and, by all means, look me up the next time you are in The Big Apple!

-Edward

Heat, Humidity and Trial Consulting: What Services Lawyers Use Where

What we've learned so far

To review, I posted a short survey about trial and graphics consultant usage by trial attorneys. I encourage those who have not yet taken the survey to check it out here. In my previous two posts (Post 1, Post 2), I reviewed some general trends in the data. While the number of respondents (42) precludes any concrete conclusions, the data are at least suggestive.

More experienced attorneys were more likely to report having used trial consulting and graphics consulting services at some point in their careers. This is not surprising since a lawyer who has tried a large number of cases is likely to have run across at least one along the way that warranted the hiring of a jury expert or graphics professional. In addition, litigants in high-stakes cases, where the hiring of outside consultants seems most likely, typically choose to place their cases in the hands of experienced litigators. Similarly, large firms generally assign their largest cases to their most experienced lawyers.

The second major finding is that civil defense attorneys are more likely to hire trial and graphics consultants than are their colleagues who handle plaintiffs' cases. Many of the criminal defense attorneys who participated in the survey reported having used a trial consultant, but this result is likely skewed by the large number of them who had taken advantage of my Pro Bono services. Many fewer of them reported having employed a graphics consultant.

Who Wants What When?

I was not surprised that civil defense attorneys were the primary consumers of trial consulting services. They typically have an insurance company bankrolling litigation and are more likely to have corporate clients. So, the deep-pocket, repeat-player litigants tend to be on the defense side of the ledger. 

I also expected to find that civil defense attorneys used a different mix of trial consulting services than did their plaintiff counterparts. This was not born out by the data. Consider the following graph. You can click on any graph to view it much larger.

Because civil defense attorneys make up such a large fraction of my sample, these absolute numbers are a bit deceiving. To correct for this, I converted these data into percentage of the relevant sample. The reconfigured graph is below.

Those plaintiff attorneys who reported using trial consulting services were just as likely to report running mock trials (a big ticket item) as were civil defense attorneys. One possibility is that once the stakes cross a critical threshold, a plaintiff attorney thinks just like a defense lawyer. That is, there is an "all or nothing" mentality to trial consultant usage. The other possibility is that many plaintiffs' attorneys are unaware that trial consultants provide a suite of inexpensive services, as well as conducting large pre-trial research projects. That is, a plaintiff attorney might know that she can hire a consultant to run a mock trial for $30,000, but she might not know that she can hire one to help draft voir dire questions for $1,000. This is a question for further study.

Note the frequent usage of both case evaluation and jury selection services by criminal defense attorneys. This is, once again, the product of this category of respondents being dominated by attorneys who have received pro bono assistance from me, which has taken the form of case evaluations and jury selection help. It remains an open question whether these are the services most often employed by criminal defense attorneys more generally.

Where is all the action?

When breaking the sample into regions, things got a bit dicey. With only a few dozen lawyers completing the survey, it was simply not possible to sensibly explore which regions' litigators used precisely which services. I did look into using only civil defense attorneys to investigate regional differences, but what few trends emerged mirrored those present in the full sample. I illustrate below trial and graphic consultant usage by region, without attention paid to specific services.

In considering these graphs, it is important to keep in mind the mix of attorneys represented in each region. The West, Mideast and South regions are comprised of 1/2 to 2/3 civil defense attorneys. The New England region sample is dominated by criminal defense attorneys and only contains two civil defense attorneys. The Midwest sample is entirely civl defense attorneys.

With all these caveats, are there any comparisons to be made, at all? Well, it is instructive to look at the responses of attorneys in the Mideast and South regions. The sample sizes are comparable, as are the distributions across legal specialties. Note, however, how much more likely a lawyer from the Mideast region is to report that she had never used either a trial or graphics consultant. There is one young lawyer from New York who reported extremely high usage rates for both trial and graphics services, as well as a strange mix of case types. If one drops this observation as unreliable, the differences between the two regions become even more pronounced.

Anecdotally, I know Florida, Georgia and Texas to be hotbeds of trial consultant activity. There are, however, several trial consulting firms with offices in the tri-state region (near New York City). As such, I am a bit surprised by these dramatic differences.

What next?

I designed this little survey to gather some preliminary information and motivate further study. I think that it has served to accomplish that task. I know that the Research Committee of the American Society of Trial Consultants has plans to conduct a broader and deeper study of these issues in the near future. To that end, if you have suggestions for questions to ask, lawyers groups to approach for participation or groups that would be interested in the results, please let me know. I will forward along all correspondence to the Research Committee.

While a data dude at heart, I know the value of qualitative research, too. So, if you have any questions about this survey or comments about my analysis, please do get in touch. Tell me your story. Share your concerns.

In the meantime, I will leave the survey open for further respondents. If I get enough additional data, I'll post an update here on my blog.

To those of you who took the time to complete the survey, "Thanks very much for your help."

-Edward

Different Strokes for Different Folks: Consultant Usage varies by specialty and experience

Digging Deeper in the Data

In my last post, I reviewed some general trends in the data from my survey of trial and graphics consultant usage by trial attorneys. As I mentioned in the last post, the survey is completely confidential and only takes about 2 minutes to fill out. Several lawyers responded to my invitation and followed this link to participate in the survey. As such, the data I review today includes a few more observations. The more the merrier, so please take the survey if you have not yet done so!

In perusing the data, I noticed a few interesting trends. These relate to how long a respondent has been practicing law, what kind of cases she handles and where her office is located. I now turn to some of these trends.

Youth vs. Experience

One might expect that young lawyers would be more likely to hire trial and graphics consultants because these folks have grown up in the "high-tech" era. Everything in their lives has been accompanied by fancy graphics and animation. These young lawyers also went to law school after the adoption of the interdisciplinary approach to legal education. A lawyer under 50 years of age is more likely to have been taught by dual-degree professors and might, therefore, have a greater appreciation for the value of psychology and other social sciences in litigation.

As illustrated in the graphs below, this expectation is not born out in the data.

Trial Consultant Usage by Attorneys

More than 15 years experience    Less than 15 years Experience

Graphics Consultant Usage by Attorneys

More than 15 years Experience       Less than 15 years Experience

Trial lawyers with more than 15 years of experience were much more likely to report having employed a trial consultant or graphics consultant than their younger colleagues. So, what do we make of these results?

I think that there are a few factors at work here. First of all, a more experienced litigator will have handled a larger number of cases. As such, she is more likely to have come across some case along the way that seemed to require the expertise of an outside consultant, with respect to either jury or graphics issues.

Second, more experienced litigators tend to handle the higher stakes cases. This is both because litigants with a lot on the line seek out experienced litigators and because large firms assign their highest stakes cases to their most experienced lawyers. These high stakes cases are the ones for which lawyers see the most justification for incurring the expense of a trial or graphics consultant.

Exactly one respondent indicated that she uses a trial consultant in more than half of her cases. She is also the one lawyer who said she uses a graphics consultant more than half the time. This litigator has been practicing for less than five years, supporting, at least anecdotally, the "new breed of lawyer" hypothesis.

Cost Conscious Courtroom Counsellors

In the previous section, I raised for the first time the influence clients can have on their attorneys' trial strategy decisions. The survey sample is made up almost entirely of three kinds of trial lawyers, with different kinds of clients. More than half of the respondents handle predominantly civil defense cases. The remainder is roughly evenly divided between plaintiffs' attorneys and criminal defense attorneys. The differences in reported trial and graphics consultant usage among these three groups is quite remarkable.

Trial Consultant Usage by Attorneys by Primary Practice Area

Civil Defense         Civil Plaintiff           Criminal Defense

Civil defense attorneys are very often hired by insurance companies, who are the ultimate deep-pocket, repeat players in the judicial system. Handling thousands of trials annually, insurance company risk managers understand the value of pretrial research, witness preparation and well-designed jury selection strategy. A litigator might not be inclined to reach out to a consultant for advice, figuring that she has all the tools she needs to win a case. When an insurance company claims supervisor tells that litigator to run a focus group study, she does as she is told. From a personal perspective, I know that many civil defense attorneys call me because an insurance company has told them to "get your jury guy on the phone and set up a mock trial." Under such an arrangement, the litigator incurs none of the cost associated with hiring a consultant.

By contrast, most plaintiffs' attorneys reported having never used a trial consultant. This should not be surprising, given that their clients tend to have less money to work with. In addition, many plaintiffs, having never been involved in a trial before, have unrealistic expectations about the cost of litigation. A plaintiff attorney is under enormous pressure to keep costs down. The financial situation facing a plaintiff attorney tends to differ from that of the defense attorney on the other side of the aisle. Many plaintiffs' attorneys are solo practitioners or members of very small firms, handling mostly small cases. When a high stakes case does come along, such an attorney faces severe cash flow problems financing the litigation. While such a lawyer might very much want to hire a trial or graphics consultant, she might simply not have access to the funds to do so. I know that many of us in the trial consulting community have attempted to implement creative fee structures to make our services more available to plaintiffs' attorneys.

The graph representing trial consulting usage by criminal defense attorneys is probably quite misleading. I head the New England Team of the pro bono initiative of the American Society of Trial Consultants (ASTC). In this capacity, I have been running free clinics for criminal defense attorneys here in Massachusetts. I know that 3 of the 5 criminal defense lawyers who report having used a trial consultant are folks I have personally helped as part of this pro bono initiative. I would need a much larger, and geographically diverse, sample to know how common it is for criminal defense attorneys to use trial consultants.

By comparison, the data on graphics consultant usage should be more reliable.

Graphics Consultant Usage by Attorneys by Primary Practice Area

Civil Defense            Civil Plaintiff          Criminal Defense

The discrepancy between civil plaintiff and defense attorney resource usage is even more pronounced with respect to graphics consulting. A quarter of civil defense attorneys reported hiring a graphics consultant for more than 20% of their cases. By contrast, three-quarters of plaintiffs' lawyers report never having hired anyone to design or produce courtroom graphics.

The one young lawyer, who indicated that she uses trial and graphics consultants in more than half of her cases, handles both criminal and civil defense cases.

From What to Where

We have now discovered differences in consultant usage among lawyers who handle different types of cases. Civil defense lawyers make much more use of trial consultants and graphics consultants than do their less well financed colleagues. We also know that in some areas of tort law, the defense wins 90% of jury trials. It would be purely speculative to connect this success rate with use of trial and graphics consulting services, but it is suggestive enough to warrant further study.

Fortunately, with the exception of criminal defense attorneys, the lawyers who completed this survey are distributed throughout the country. This will provide me an opportunity to explore whether there are regional variations in trial and graphics consulting usage. I will have to be mindful, however, of the trends I have uncovered with respect to seniority and practice area. If the lawyers in one region seem to hire a lot of graphics consultants, I will need to make sure that it is not simply because they are all civil defense attorneys.

Finally, I wish to explore whether there are any systematic variations in the types of services for which attorneys hire consultants. Is it mostly for jury selection in one region and mock trials in another? Do certain types of attorneys hire consultants to help with witness preparation more than others? I will address these questions, along with geographic variations, in my next post.

Trial Consultant Usage All Over the Map

The Survey at a Glance

Several weeks ago, I was in conversation with a colleague about the different approaches taken by various lawyers with respect to using trial consulting services. Some lawyers don't see any use for our expertise, or believe that their clients just can't afford to use us. Some lawyers employ the occasional consultant to run jury research, but really want a project manager more than an expert in jury behavior. There are many lawyers who will call in a trial consultant for the occasional case when she experiences uncertainty regarding a particular jury issue. Finally, there are a handful of lawyers who work with a trial consultant on virtually every case, finding their expertise to be well-worth the investment.

I commented, rather off-handedly, that I thought there were probably lots of regional differences. I think that differences in procedural rules (e.g. attorney conducted voir dire, ad damnum usage) and legal culture result in their being jurisdictions where litigators make great use of trial consulting services and others where attorneys rarely hire trial consultants.

I soon realized that this was a testable hypothesis. So, I went off to SurveyMonkey.com and crafted a short survey to investigate which litigators hire trial consultants (and courtroom graphics consultants) and which ones don't. I included questions about how long each respondent has been a lawyer, what kind of cases she handles, and where her office is located.

The survey is still live and I will be analyzing the data long into the future. So, if you are a trial lawyer, and you have not yet filled out the survey, please do so here. It only takes about 2 minutes and it is completely anonymous.

Spreading the Word

As many of you know, I am extremely active on LinkedIn. I posted a notice about the survey as a discussion on many of the groups to which I belong. I also tweeted an invitation to participate on several occasions. Finally, I sent out an email to everyone on my professional distribution list (formerly used for my newsletter, before it became this blog). I would conservatively estimate that at least one invitation to participate was seen by over 500 litigators.

Well, I wasn't offering to pay respondents. I wasn't raffling off an iPod or a timeshare in Maui. Lawyers are used to billing clients for every 6 minutes of their time and they are extremely sensitive to concerns about online privacy. So, the response rate was not great.

As of today, 37 people have completed the survey. Of these, 5 indicated that they were not lawyers (although a few might work for law firms in some other capacity). 28 of the respondents indicated that they heard about the survey on LinkedIn. 8 found out through email, and 1 via Twitter. Needless to say, any conclusions to be drawn from such a small sample will be speculative in nature. I do hope, however, that the results will give us something to build upon in the future.

Preliminary Results: Trial Consulting

I was careful in the survey to differentiate between "Trial Consulting" services, which deal with the social psychology of jury behavior (jury selection, witness preparation, focus group studies, etc.) and "Trial Graphics" services, which include illustrations and animations for courtroom use. Here is a graph illustrating the frequency with which survey respondents employ "Trial Consulting" services, in terms of percentage of cases.

Trial Consulting Service Usage: Full Sample

As you can see from the figure, very few attorneys indicated that they used trial consultants for more than 20% of their cases. The interesting distinction here seems to be between those litigators who sometimes use trial consultants and those that never do. For my sample, approximately 60% of respondents indicated they had ever used a trial consultant. 

There are a couple of reasons to be skeptical of these numbers. First, I would expect that participating in the survey would be more interesting to those lawyers with some familiarity with trial consulting. As such, I thought that most of the respondents would be lawyers who had worked with trial consultants in the past. Second, the publication of the survey was heavily skewed towards people who know me in some capacity. Of those, I would expect that my clients would be particularly inclined to help me out by filling out the survey. (Based on zip codes and other survey responses, I am fairly sure that about a half-dozen respondents are, in fact, clients of mine.) In light of these factors, I believe that these results probably overestimate trial consultant usage in the general population.

I am located in Massachusetts and most of my clients are from New England. This is reflected in the large number of respondents from this region (9). That said, it is gratifying to see that the remainder of the respondents come from all over the United States. I will be discussing regional variations in the data in my next post.

Preliminary Results: Graphics Consulting

I am what I refer to as a "behavioral" trial consultant. While I advise clients on the kinds of exhibits they might employ at trial, and evaluate the utility of the graphs and illustrations they already have, I do not provide trial graphics services. As such, the responses with respect to graphics consulting are probably less skewed by the participation of my own clients. The graph below shows graphics consulting usage for the complete sample.

Graphics Consulting Service Usage: Full Sample

About half of the survey's respondents have used a graphics consultant for at least one case. I think that most of us would expect trial graphics to be used more frequently than trial consulting. The discrepancy between this expectation and my data undoubtedly arises from the participation of many of my clients. Several of these attorneys, especially those doing criminal defense work, have benefitted from my active pro bono practice. They have not had similar access to affordable trial graphics assistance.

Do the Same Lawyers use Both Services?

As I mention above, there is reason to believe that at least a handful of attorneys would make use of trial consulting services, but not graphics consulting ones. Is this a common occurrence? The graph below answers this question.

Joint Usage of Trial and Graphics Consulting Services

As a general rule, lawyers either use litigation consulting services of both types, or they don't use either. Only a few litigators reported using graphics consultants but not trial consultants. I find this result a bit surprising. While I did not ask respondents about the size of their firms, I would expect that this sample is heavily weighted towards small and mid-sized firms, whose attorneys tend to be heavier users of LinkedIn. Lawyers from large firms (many hundreds of lawyers) are unlikely to have found their way to my survey. Such firms handle huge IP and business litigation cases, in which courtroom exhibits are sophisticated and plentiful. The underrepresentation of such litigators from my sample have certainly affected the nature of my results.

Questions to be Explored

These preliminary results are certainly interesting. We have responses from many attorneys who have used a trial or graphics consultant to help with jury trials. Who are they? What kind of work do they do? Where do they practice? These are the more nuanced questions that I will be addressing in my next two posts.

In addition to surveying experience with consultants, I asked respondents about which kinds of services they had hired consultants to perform. I provided an extensive list, including jury selection, witness preparation, illustrations, animations and more. I will explore in a future post trends in the data, with respect to which trial lawyers made use of which services.

So, stay tuned! Same Bat-time, same Bat-channel.

And remember, it's not too late to contribute your own experience to the data. Take the survey here.

Plethora of reasons for defense counsel to argue damages at trial

Hey you! Pay attention!

In the latest issue of The Jury Expert, Jeri Kagel has contributed a very thoughtful article, entitled "Damages: The Defense Attorney's Dilemma." In her article, Jeri presents in stark terms the ambivalence that most civil defense attorneys experience regarding discussing damages before a jury. All of us in the trial consulting profession encounter clients who are stubborn about certain things.

"I never make opening statements." 

"I don't depose opposing experts because I don't want 'em to know what's coming." 

"I don't like my expert to use visual aids because it distracts the jury from what he's saying."

By a large margin, the most common immovable object is, "I don't argue damages at trial."
We trial consultants have read the experimental research on the topic. We have run our own studies. We know that arguing damages at trial is a winning strategy for defense attorneys. It generally has a negligible impact on the liability decision and can have a profound impact on the damage award.

Don't live in fear! Come into the light!

In fact, our frustration with our clients on this point has led many of us to write newsletter articles, editorials and/or blog posts about this very topic.

From myself, "Getting Defense Counsel to talk about damages is like conducting an intervention."

From Aaron Abbott, "New Research on Damage Awards: Do jurors split the difference?"

From Sarah Murray, "Strategies for minimizing damages in high damages cases."

From Jeffrey Frederick, "Searching for rocks in the Channel: Pretesting your case before trial."

I actually managed to convince a client to run a mock trial experiment on the question of arguing damages at trial. We had two panels who all watched the same mock trial for a day-and-a-half. We then separated them for closing arguments. To one group, defense counsel said nothing about damages. To the other, defense counsel added one paragraph, discussing the unreasonableness of plaintiff's award request, and suggesting a more appropriate figure.

Much to my client's surprise, the panel that had heard defense arguments about damages did not once discuss this fact with respect to the liability question. That is, when deciding whether the defendant was liable, not once did anyone point out that defense counsel had raised the damages issue in his closing.

The differences did emerge when we asked the two panels to calculate a damage award for the plaintiff. The panel that had heard a counter-argument on damages from defense counsel chose an award half the size arrived at by the panel that only heard plaintiff's arguments about damages. The provision of a "counter-anchor" for damage award calculations can substantially reduce the size of such an award.

Don't put off until tomorrow what you can argue today.

A significant contribution of Jeri's article in The Jury Expert is a cataloging of opportunities for defense counsel to introduce arguments about damages throughout the trial. The typical question a defense attorney confronts is, "Should I mention damages in my closing argument?" Jeri points out that this dilemma should not be so narrowly defined. Defense counsel should include questions during voir dire about how prospective jurors are likely to think about calculating damage awards. She advocates including arguments in opening statements that help "teach" jurors how to evaluate critically testimony about damages.

A more comprehensive strategy for dealing with the damages issue allows defense counsel to influence juror decisions about damages without having to resort to the "arguing in the alternative" tactic. (My client didn't do anything wrong, but if you decide he did, it wasn't really that bad.) In addition, in jurisdictions that do not permit an ad damnum (specific monetary request from the plaintiff), defense counsel can implement those strategies most appropriate to the local rules.

There is one big lesson one should glean from the experimental literature and the musings of trial consultants. Don't punt on damages. Ceding to the plaintiff total control over the way in which the jury discusses damages is a recipe for disaster.

Future Podcast on Jury Behavior and Jury Trials

I am in discussions with a major legal podcast producer to host a regular podcast on juries and jury trials. I would review the latest developments in jury research, discuss possible reforms to the jury system, and highlight the interesting implications of ongoing and recent jury trials. I would try to have at least one guest on each show and listener input will be very important.

Before I undertake this endeavor, I want to get a sense of how podcasts are used by litigators and others in the legal profession. To this end, I have posted a poll about podcast listening habits on LinkedIn. I would very much appreciate it if anyone reading this post would click the link and complete the quick poll (LinkedIn membership is NOT required). You can view the results so far after registering your response.

LinkedIn Podcast Poll (<-- Click me!)

Of course, if you have suggestions about the format of such a podcast, I am all ears. Feel free to email me, or leave a comment below, to tell me what you think makes for a compelling podcast. What makes you yawn? What makes you just shut the damn thing off? (We don't want that!) If there is a particular podcast that you really like, let me know so I can check it out.

Thanks!

-Edward

Community Attitude Surveys: Cheap, informative, effective

It was reported yesterday in the Modesto Bee that two-thirds of those surveyed already believed that Columbus Allen Jr. is guilty of killing California Highway Patrol Officer Earl Scott. Allen's defense team is attempting to use the survey in support of a change of venue motion, but the judge seems unlikely to grant the request. It is instructive to read the stream of vitriol posted by readers commenting on the article.

My god, they should of tried him the moment they arrested him... OFF TO THE GALLOWS BOY!

The evidence is clear. He killed Earl Scott. He is guilty, nothing else left to discuss, time for him to suffer and die a slow slow death.

This poor excuse for a life form was stupid enough to show up later with gunshot residue on his hands and arms. i am willing to bet he wasn't at the gun range practicing. guilty. fry him. this society is already paying for enough criminals and cannot afford them.

Of course everybody knows he's F*%&ing guilty! He murdered a CHP officer on 99 when everyone was commuting. I still remember that morning driving past that grim scene.
Why has this trial been put-off for so long? Get it the hell over with and sentence him!

Of course, this is a murder case, with lots of pretrial publicity. We should not be surprised to see strong public attitudes. In addition, the defense team has conducted the survey to achieve a very specific purpose: get the trial out of Stanislaus County. That said, a community attitude survey can be extremely helpful for civil litigation, as well.

Imagine you are defending a hospital in a medical malpractice case. Wouldn't it be useful to know whether the hospital is held in high esteem, as compared to others in the community? Are the people in this jurisdiction particularly dissatisfied with the quality of healthcare they receive? Is there an ongoing shortage of primary care physicians, causing patients to wait for appointments? Has the "torts crisis" argument taken hold in this community? These are all questions that can be answered with a community attitude survey. A survey of hundreds or thousands of people can be conducted for less money than a one-day focus group study with only a handful of subjects.

The judge in your case has authorized the use of a supplemental juror questionnaire, but she has made it clear that it is NOT going to be 75 pages long. She orders you to get your act together and submit no more than a dozen case-specific questions. How do you decide which questions to use? (After all, your trial consultant has written more than 30 truly outstanding questions for you) Commission a survey with your top candidate questions. This provides you an opportunity to analyze the responses of jury-eligible members of the community. You will undoubtedly discover that some questions just don't generate any useful range of answers. Others produce responses that don't seem to correlate with attitudes related to the case. The key is to find those questions that effectively distinguish between people who seem generally sympathetic to your case and those who do not. Now you can submit your short list of questions to the judge with confidence that they will produce results in jury selection.

Surveys have several advantages over other methods of pretrial research.

First, a survey typically involves many more subjects. This means more data and more confidence in the results.

Second, a survey can be conducted in the background while the trial team is busy taking care of other matters. There is no need to find a date on which the entire trial team, witnesses, parties and trial consultants can all be in the same place at the same time.

Third, since a survey is conducted without direct involvement of the trial team, subjects can be recruited for subsequent interviews or focus group study without the "contamination of advocacy." So, a survey can be a preliminary research step. leading to more targeted efforts.

Fourth, a survey can be tweaked as it is being conducted. Obviously, the analysis of any particular set of responses is limited by the number of subjects who were asked the same question. There is not harm, however, in figuring out halfway through that you really should have included a question about home foreclosures. The survey research company can include it for all subjects from that point forward. It is much harder to tweak a focus group or mock jury study in the middle.

While it is unlikely that an entire community will have decided on a verdict for your case in advance (although it could happen), a survey can help you identify pervasive attitudes among the people who will be comprising your jury. These attitudes will shape the lens through which jurors will be viewing your case. To stretch the metaphor a bit, you can't grind the right set of corrective lenses (your case presentation) until you know what prescription is needed.

From the ASTC Conference: Effects of the Economy on Jury Trials

I recently returned from Atlanta, where I was attending the annual conference of the American Society of Trial Consultants.

A lot of informal discussion, at the breaks, in the halls and at the bar, centered around the effects of the economic downturn on juries. What were they doing differently now?

Beth Foley chaired a session on the effect of the economy on damage awards, but the discussion freely flowed into behavioral areas other than damages. No-one really had any data, per se, unless you think of data simply as the plural of "anecdote." That said, there were some interesting conjectures offered, some of them supported by personal experiences with trial juries or mock jurors.

Welcome to jury duty, Mr. Executive Vice President for South Asian markets.
Several attorneys and consultants noted that massive layoffs of white-collar workers has resulted in executives being available for both pretrial research and actual jury duty. This is generally seen as beneficial for corporate defendants because these professionals will understand the decision-making structure of business better than typical jurors. They won't be so quick to adopt the "zero-risk fallacy" or assume that all corporate mistakes are the result of negligent conduct.

Let's not break the bank here!
Tara Trask commented that she had seen a definite upswing in arguments by research subjects pertaining to driving companies out of business. People have watched seemingly indestructible multinational conglomerates go under in the past year. This has increased sensitivity to the vulnerability of all companies. Jurors may think twice about an award large enough to bankrupt a company that provides jobs in their own community. Certainly, such arguments can no longer be dismissed out-of-hand.

I'm so mad, I could just spit!
There continues to be a lot of pent-up hostility towards big companies and firms in the financial sector. We know that jurors give vent to their desire to punish corporate defendants when calculating compensatory damages, despite instructions to only consider such factors if punitive damages are warranted. In the present environment, I would expect the desire to punish to infiltrate these values even more.

Where's the check with my name on it?
There has been a lot of discussion lately about the value of identifying jurors with a "just world" attitude towards the world. There are several versions of this perspective. The more people who feel themselves to have been "mistreated" by the world, perhaps because they have been laid off or have lost a house of foreclosure, the more potential jurors there are who will be reluctant to give a "hand-out" to someone else. The thinking is along the lines of, "Hey, times are tough. We've all suffered. You don't see anyone giving me free money, do you? Why should I bail out this guy?" I would think that any plaintiffs attorney would do well to probe for such attitudes during voir dire.

I wish I could tell you, kind readers, that we have reams of definitive data, pinpointing exactly how the current economic climate is affecting verdicts and damage awards. Alas, all we really have are some basic trends, a few anecdotes and thoughtful speculation from some pretty intelligent and experienced jury experts. I am afraid it will have to do for now.

For those of you who might be new to The Jury Box Blog, you can read a couple of pieces I have previously published on my own perspective on the connections between economic climate and damage awards here and here.