MOCK TRIALS AND FOCUS GROUPS: LETTING GO OF CONTROL AND TAKING IT BACK AT THE SAME TIME

One of the biggest frustrations trial teams and client representatives feel in a mock trial or focus group is the lack of control as they sit and observe the juries deliberate and discuss their case. Jurors get confused, misunderstand and misuse evidence, the legal instructions, and even the process. It can be painful to watch. We like to set these expectations from the start.

I often greet client observers in the observation war room with some variation of the following: “You have done your job, presented the issues in the way you wanted, to test what you wanted, but make peace with what is about to happen…buckle up and enjoy the ride that is the jury decision-making process. We are learning from them, understanding what is confusing, and finding out what is too complex. We are learning about their motivations – what motivates jurors to attend to certain issues, evidence, and themes. We observe how animated jurors can get as they choose to be an advocate for one side or the other and how they use language, themes, evidence, and witness testimony when they argue with their fellow jurors. We are learning what issues are pressure points and how they are used to sway fellow jurors.”

That said, we recognize the frustrations. Although this may seem an odd segue, this relates to how we have been consulting in the COVID-19 social distancing period that we all find ourselves in. As a Tsongas team, we committed ourselves to come out of this challenging experience stronger than before. As such, we dove in and developed a robust and methodologically sound remote participant jury research model. We also wanted to enhance both the feeling and practicality of the trial team and client’s control in the mock trial and focus group war room.

So even as you cede a good deal of control once the jury begins their deliberations, Tsongas has designed an application we’ve named The Advantage that gives you control of the juror data collected throughout the day of the research project. The Advantage puts you and us in more immediate control of the findings as they come in. As real-time results are populated into The Advantage dashboard, those in the war room will be able to identify relationships between leanings, biases, behaviors, and jurors’ characteristics, both at individual and collective levels. The application will allow those in the war room to cut the data in many ways, identifying groups and sub-groups of jurors by combining multiple variables so that potentially significant relationships between types of jurors and their attitudes and experiences can be revealed instantaneously. Control is now literally at your fingertips.

Stakeholders in the jury research will be able to drill down deep into the specific juror background information, accessing their extensive attitudinal and experiential attributes, and navigate through a powerful but intuitive process to deepen the understanding of high-risk juror characteristics.

In addition, the collective development of insights, strategy, and tactical recommendations for litigation and trial is now even easier and more robust. For those of you who have done research with us, you probably recall the white sheets of paper strewn across the war room, being filled with the collective insights of the team. Now, this process will be done electronically, where those involved in the research can collectively document their observations on a shared screen. The wisdom and insights from the real-time collective, creativity and discussion are immediately captured and shared.

With The Advantage, witness credibility evaluations are now enhanced. The witnesses’ ratings on key elements of credibility – both quantitatively through vivid charts of Likert scale data and through the display of qualitative “characterizations” of witnesses and parties in the case – will be immediately available for observation and analysis. In addition, the credibility scale data can then be used in the post-data analysis to identify more meaningful results by comparing the actual witnesses’ scores of such things as “sincerity,” “competence,” and “likability” with the deep pool of witness credibility data we have collected over the years. This will allow all to evaluate the meaningful results by assessing where the actual scores relate to the Bell Curve; for example, how many standard deviations from the mean a witness may be on each individual credibility element.

Allocation of responsibility and damages will also be immediately available to those in the war room. On The Advantage dashboard, not only the what but the, why behind the allocations are now at the fingertips. Damage analysis through Box and Whiskers chart is a click away, allowing us all to understand the core of the damages awarded and to identify the outliers and atypical responses, both high and low.

Tsongas is excited to roll out The Advantage and let you discover all that it has to offer. In our last four projects, users were delighted. As cases are on-going, their names and affiliations are not supplied. They told us:

• “The dashboard was very intuitive.”

• “Thank you…The findings from our project were the difference-maker. I also had a meeting with … our outside counsel on the other lawsuit, and he is so impressed with your help developing trial themes, he’s going to use you for his other cases. Your work product is just excellent.”

• “Excited to see the leanings data come in, watching the charts all change once I refreshed the data.”

• “Very easy to follow.”

• “Superslick.”

• “I liked being able to cut the data in so many ways throughout the day.”

• “I could very easily compare the jurors’ characteristics with their leanings which was very valuable. It was easy to refresh the Dashboard after each presentation to view the juror data and the basis for their pro-plaintiff or pro-defense leanings. By the end of the project, the Dashboard had compiled all of the juror feedback along with juror demographics which led to informed discussions and observations.”

• “The Dashboard is very easy to use, has all of the data in one place, is refreshed throughout the day, and provides easy access to more detailed information by drilling down in each category. It is a powerful and easy-to-use tool.”

The trial team has great control over the inputs to a jury and mock jury. The jury research allows the assessment of those inputs and gives meaningful feedback on the strategy. The lack of control when the mock jury deliberation is proceeding – pretty real world – remains, but new tools of control are available so that we can immediately begin the important appreciation of the data. More control of the data and its visualization, more control of the analysis – how the data is cut and arranged, and more powerful tools of collection, observation, and evaluation intend to restore more control to those in the mock trial or focus group projects. It is about controlling what you can control and in more powerful, observable, and practical ways.

We hope to have the chance to share this Advantage with you and your clients soon. We have been determined to come out of the COVID-19 period stronger as a team and as a partner to our clients. We think these innovations do that in a big way.