THE PITFALLS OF ATTORNEY-CONDUCTED JURY RESEARCH

The author David Sedaris once said, “Writing gives you the illusion of control, and then you realize it’s just an illusion, that people are going to bring their own stuff into it.” Recognizing that what he finds funny and interesting may not be what others find funny and interesting, he has started a process in which he “tests” his writing in front of live audiences before publishing. It’s similar to an attorney conducting pre-trial research. He finds that reading aloud to an audience helps him identify strengths and weaknesses in his writing. He will read a short story dozens of times, refining it based on audience reaction after each reading. This practice has obviously proved successful, as his works regularly become best sellers. While as a mock jury consultant I believe that having a sounding board for your ideas is almost always a great idea, there are downsides to conducting your own pre-trial research, which usually takes the form of a small gathering of friends, family members, and colleagues, who listen to a summary of the case and provide feedback. The primary danger is that you may make strategic decisions based on flawed data. In attorney-conducted research, the people providing the feedback are usually biased. Friends and colleagues may not provide the critical or unfavorable feedback that your case needs. It will be understandably difficult for your audience to remain objective, because they either already know too much about the case or because they know which side you represent. In the end, attorney-conducted research may simply be an exercise in “confirmation bias.” David Sedaris’ test audience is probably also predisposed to favor his writing, but these are the people who may or may not ultimately buy his book, and in that respect his “focus group” process is less flawed. Engaging a mock jury consultant to conduct pre-trial research offers a number of advantages. First, jury consultants often have more experience with jurors (both mock jurors and actual jurors) than many attorneys do. This is simply because so few cases in an attorney’s career will go to trial, whereas mock jury consultants spend most of their time assisting on trials and mock trials. This experience allows jury consultants to offer insights about which particular themes and styles will resonate. Second, jury consultants can add an objective voice to the research. They are typically trained in social science and understand how to conduct pre-trial research in a way that eliminates biased feedback. The methodology of the research is crucial, as we’ve written before. Great effort is taken to ensure that the participants approximate jurors that you may actually see in court. Furthermore, jury consultants analyze the results of the research objectively. That is not to say that mock jury consultants are not interested in their client winning at trial, but in pre-trial research it is more important to view the case and the research results objectively when providing feedback. We are obviously big proponents of testing your case, but conducting your own research may have diminishing returns. If you choose to conduct your own research, whether due to budgetary constraints or due to overconfidence in the merits of the case, process the results with a grain of salt.