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JURY RESEARCH UPDATE |
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Jury Research Services |
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JURY RESEARCH UPDATE |
Surveys and opinion polls have become part of the American social landscape. Litigation has not escaped this phenomena. One area in which surveys are being used in litigation is in preparing for jury trials. Issues such as how jurors view the litigants, their opinions related to the litigation, their views regarding the guilt/liability of the defendant, and what the characteristics are of favorable and unfavorable jurors can be addressed by what are termed juror surveys.
Juror surveys center on conducting opinion polls in the trial jurisdiction. Jury-qualified residents are interviewed (usually by telephone) concerning their perceptions of relevant parties, opinions, decision preferences, and background characteristics. Based on samples ranging from several hundred to more than a thousand, researchers address a number of issues of concern in both criminal and civil litigation.
The following discussion illustrates various applications of juror surveys. While these applications are treated separately, juror surveys often are a hybrid of many of these applications. Three applications are considered here: testing the waters, determining verdict/issue preferences, and jury selection.
When trying a case before a jury, it is important to understand the trial climate that you face, as reflected in the views and opinions of jurors. Juror surveys allow attorneys an in-depth picture of the opinion climate of the trial community. There are several aspects of the trial climate that are of interest: opinions and values, potential themes, and perceptions of litigants.
Opinions
and values. The opinions and values that jurors hold
can affect how they view the evidence and arguments presented by the parties.
Thus, knowing how jurors feel about important opinions is key to understanding
how they will react to your case. For example, the fact that substantial
numbers of jurors in a trial community view doctors as likely to act in a
predatory manner when faced with competition (as over 50% of the jurors in
one trial jurisdiction reported) would be of considerable interest in a medical
antitrust case.
Potential Themes. Related to uncovering opinions and
values is the determination of what the best theme of the case is. Themes are
important in persuasion at trial. The theme adopted by jurors serves as a
filtering mechanism for how the evidence will be processed. Obviously,
presenting the wrong theme (i.e., one that is frowned upon by the trial
community) sets up unnecessary obstacles for the attorney to overcome. Stressing
a theme such as "the opponent is using the court system to make up for money
lost in a bad business decision" would be beneficial when a survey shows that
approximately 80% would react positively to this theme.
Perceptions of the Litigants. Finally, for those
parties that the public recognizes (either though pretrial publicity or general
familiarity), knowing the juror's image of the party is important. This image
serves as the context from which jurors will interpret the actions of the party.
As shown in Figure 1, the fact that a particular oil company was viewed by over
three-quarters of the jurors as being at least somewhat greedy did not bode
well for the interests of this company that faced a claim that its actions were
motivated by greed.
An extremely important feature of juror surveys is their ability to uncover the jurors' decision preferences in a case. Understanding this more specific, and crucial, aspect of the trial climate provides valuable information as to what the parties will confront in their cases.
Preferences
for liability or guilt. During the course of a survey,
jurors are given a brief description of the case at issue and asked for their
verdict preferences. These decision preferences provide the basis for evaluating
the jurors' initial preconceptions of guilt or liability. For example, in
a civil case involving a breach-of-contract claim, when presented with a
basic description of the case, only 16% thought that the defendant should
not have to pay any damages. Obviously, this situation does not reflect a
good position for the defendant.
Reactions
to different issues. One of the benefits of surveys is that several
different issues in a case can be examined in one survey. By providing jurors
with a case description, which is followed by several issues/facts that may
arise at trial, attorneys gain an idea as to how jurors view these different
issues. For example, surveys have shown that while the basic facts of the
case may hurt a party, supplemental facts (e.g., certain memoranda or actions
on the part of a party) can prove to be winners for the party. We have seen
dramatic shifts of more than 40-50% of jurors' verdict preferences in response
to potential issues or facts that may surface at trial. This kind of information
is crucial in preparing a persuasive presentation for trial.
Analogous v.
actual case scenarios. Juror surveys do not have to use
the actual case facts in order to provide valuable information. Obviously,
using the actual facts of the case is preferable when publicity has led jurors
to form impressions of the parties involved. However, our research has shown
that decisions made by jurors in response to analogous case scenarios are
related to how they view the actual case. In those cases where sensitivity
of subject matter is an issue, analogous case scenarios can avoid this
problem.
Change of
venue. A final application of surveys in the area of verdict assessment addresses whether a
party can receive a fair and impartial trial in the trial community. Opinion polls can play a key role
in demonstrating to the court that jurors have opinions that reflect significant prejudgment of the party's
guilt or liability. Ideally, venue surveys are conducted in the trial jurisdiction and in a comparison
jurisdiction. In this manner, the argument can be made that the interests of justice would be served
best by relocating the trial to a jurisdiction known to have jurors with opinions reflecting relatively
less prejudgment of the case.
One of the most common uses of juror surveys is to assist in jury selection, both in terms of juror profile and voir dire development. Eighty-six percent of those predicted to be pro-plaintiff in a libel case rendered plaintiff's verdicts, while 100% of those predicted to be pro-defendant rendered defense verdicts.
Juror
profiles. By collecting in-depth information on jurors' opinions, decision preferences,
and background characteristics, profiles can be developed that indicate the type of jurors who are
likely to be favorable or unfavorable to a party. In essence, juror surveys are used to ask the question:
what characteristics (usually the jurors' demographic and social-psychological characteristics, and personal
experiences) predict which jurors would be initially pro-client and anti-client, based on decision
preferences expressed in the survey? Juror profiles can be very effective. For example, Figure 2 on the
following page shows the results of survey profiles that were compared to decisions reached by jurors in
independent focus group studies. Eighty-six percent of those predicted to be pro-plaintiff in a
libel case rendered plaintiff's verdicts, while 100% of those predicted to be pro-defendant rendered
defense verdicts.
Voir dire
development. The information contained in a juror survey also
provides attorneys with guidance in developing questions to be asked on voir
dire. Knowing what questions are important to ask (e.g., components of juror
profiles and/or other questions related to the decision preferences of jurors)
leads to greater efficiency in conducting voir dire. In addition, pre- voir
dire juror questionnaires also benefit from these survey findings. When time
or space is at a premium, knowing what is and what is not important to ask
during voir dire is extremely valuable.
Juror surveys can provide a number of benefits to attorneys as they prepare for trial, including assessing the trial climate that the party faces. Failure to know important opinions and values of jurors, how they would react to potential themes, their perceptions of the parties, and their decision preferences in the case, can be costly. Finally, juror surveys also can provide valuable assistance in the task of jury selection. The development of juror profiles and useful voir dire questions enhance the effectiveness with which attorneys exercise peremptory challenges.
About the editor:
Jeffrey T. Frederick, Ph.D., is the Director of Jury Research Services for the National Legal Research Group. He has consulted with attorneys since 1975 on jury selection, case preparation, and trial presentation issues. He is a frequent speaker at continuing legal education programs across the nation. His publications include two books, Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury (ABA Press, 1995), The Psychology of the American Jury (Michie Co., 1987), and a number of articles on the topics of voir dire, jury selection, and persuasion. Those interested in information on jury research services are encouraged to call 1-800-727-6574.
LET US HELP YOU IN YOUR NEXT JURY TRIAL. We know jury trials.
We offer a broad range of services including basic case evaluation, voir
dire development, evidence and argument preparation, jury selection, focus
groups, trial simulations, and jury surveys. All service packages are tailored
to meet your litigation needs given the resources available. For more information
call Dr. Jeffrey Frederick, Director of Jury Research Services, at
1-800-727-6574.
