Using Juror Surveys in Trial Preparation
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.
What Are 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.
What Can Juror Surveys Do?
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.
Testing the waters
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.
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.