What Jury Research Can’t Do
I just had an article published in the November issue of “The Jury Expert.” It is a piece I wrote called “Jury Research for Settlement: The Price is Right?”
Not 10 hours after the publication was released, I got an e-mail from an attorney, asking about whether jury research exercises are good predictors of case value and how a study, designed to assess damages, should be structured to do so.
I cannot say how many times I have been asked questions like this. Specifically, how predictive jury research (e.g., mock trials and focus groups) is to actual verdicts at jury trial and to what extent the damage numbers we get in focus groups predict what actual damages will be at trial.
While it is not unusual for the results of a trial to be similar to the results of a jury research exercise, prediction of a verdict is not the point of the exercise. The truth is that jury research cannot reliably predict the exact outcome of a trial, especially related to damages. With this kind of small-sample research, there is typically not enough data to get real statistical reliability. Moreover, while quality research is designed to duplicate the demographic profile of a venue in jury research participants, there is no way to predict and duplicate the idiosyncrasies of the eight to 12 people who will eventually sit on a jury panel or how they will make heads or tails of damage numbers (especially related to intangible numbers like pain and suffering).
There you have it.
So, if it can’t tell you what the outcome of your case will be, what good is jury research? Well, I am glad you asked.
What Jury Research Can Do
Regarding verdict decisions, I have found that key arguments/facts that favorable jurors focus on in research are just about identical to the key arguments/facts that jurors focus on at trial. Highlighting key arguments at trial, based on the research findings, has served to strengthen the impact of that favorable evidence. At the same time, mock jurors are also helpful teachers regarding how to create a strategy around troubling evidence. Learning how favorable jurors talk about evidence unfavorable to the case allows us to follow the decision-makers’ lead when our own strategies fall flat.
Related to damages, I have found that jury research is predictive of the most important damage drivers in a case: juror emotion. In other words, jury research can give you a glimpse into the extent to which jurors will express anger and sympathy toward the litigants and whether that emotion can be heightened or mitigated to drive damage awards.
Jury research also tends to reflect how jurors perceive the tangible damage analyses (i.e., medical costs, life care plans, lost wages, etc.) presented by each side when that detailed damage information is presented at the research. In other words, plaintiff damage numbers perceived overreaching in research are typically perceived the same at trial. The same concept applies to defense damage numbers perceived as penny-pinching or uncaring. Moreover, the way that jurors use tangible numbers as anchors for their own calculations in a research exercise does provide a good idea of how jurors in a real trial will use those anchors as well.
What Jury Research Helps You Do
As a result of what folks learn about their cases through jury research, researched trials that have gone to verdict often yield more favorable results than the actual results of the research, which is the actual goal. Potential reasons are as follows:
- Trial teams make more informed decisions on whether to take a case to trial with jury research information, so the cases that are tried are typically the strongest.
- Trial teams refine their arguments/prepare their witnesses, etc. according to research findings so the case is stronger at trial than at the research.
- The juror profiles elicited from jury research gives a clearer view of characteristics of unfavorable jurors so the right people may be eliminated during jury selection.
In essence, jury research is a valuable tool to get a sense of a case from juror perspectives in terms of, inter alia, strategies that resonate or fall flat, pitfalls we may fall into, characteristics of jurors who will find against us no matter what we say, and the level of emotion elicited by a particular story. In other words, jury research does not and cannot predict what a particular jury will do or say, but it can help you know what you should do and say.
Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.
If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.
Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com
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