Chapter § 7.04 Complexities of Modern Jury Trials

• Jurisdiction: United States
• Publication year: 2020

§ 7.04 Complexities of Modern Jury Trials

[1] Strategies and Techniques for Pretrial Jury Research

Jury trials are often unpredictable and complex, but pretrial jury research, such as mock juries and mini-trials, can help reduce some of the uncertainty. It used to be that pretrial research was a “luxury” to be employed only in cases with significant monetary exposure. However, as the litigation environment has evolved, so has use of pretrial jury research for a broader range of cases. This research is especially appropriate in cases involving complex circumstances or concepts, problematic facts, and difficult witnesses. It can help determine how best to frame a case for a jury, narrow the focus of the case, perfect arguments, test themes, and provide practice for trial lawyers. The results of pretrial jury research can also be an excellent tool in settlement negotiations.

Trial consultants now offer an array of services for pretrial jury research, from half-day focus groups to full multi-day mock trials. Some consultants also offer online survey research. Today, trial consultants can tailor services to fit any budget and any goal.

There are basic steps that parties and their lawyers should take to ensure the success of pretrial jury research. First, the party should retain a consultant that can effectively evaluate juror feedback and provide insightful analysis. Then, the lawyers should work closely with the trial consultant to develop a carefully designed, goal-oriented plan for the project. A party’s failure to determine the ultimate goals of the project before designing a plan and commencing the exercise may result in a project that doesn’t answer the pertinent questions and address strategic goals. Once a comprehensive plan is developed, the lawyers must prepare thorough arguments, witness excerpts, exhibits, and other material to use in the exercise.

The timing of pretrial jury research is important as well. For example, focus groups conducted early in litigation can streamline themes of the case and assist in directing discovery. Usually, this type of exercise is conducted within a day or less and often requires less preparation; yet, it can yield important feedback, ultimately saving the party money. Research conducted closer to trial, whether by mock jury or mini-trial, may allow for practical testing of comprehensive, detailed arguments, and demonstrative exhibits and graphics. Research conducted at this juncture can also provide an excellent arena for testing live witnesses in front of mock jurors and collecting extensive data for an ideal juror profile. We expand on many of the themes below.

[2] Types of Pretrial Jury Research

Lawyers and trial consultants can design pretrial jury research in many different ways—most designs are derivatives of traditional surveys, focus groups, or mock trials. An effective consultant can help tailor the research to specific goals, for the allocated resources, and to answer the ultimate and pertinent questions in the case. Here are some of the more common types of pretrial jury research:

[a] Focus Groups

Focus groups generally fall within one of two models, and consultants confusingly call them different things. For this discussion, we will call the two designs a “mock jury” and a “mini-trial.” First, a mock jury is one of the most popular project designs as it usually takes less...