February 2012 Bar Bulletin
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February 2012 Bar Bulletin

Garbage In, Garbage Out: Common Mistakes in Pre-Trial Research

By Jonathan M. Lytle

 

Two teams of attorneys — one defense and one plaintiff — independently conducted their own focus groups and brought their results to the mediation table. In both groups, the majority of participants found the defendant negligent. However, the plaintiff-run focus group awarded damages that were 20 times larger than the defense-run focus group.

Given that all participants heard about the same case, how can this be? Which results are "true" and reflect what the actual jury will decide? The answer, most likely, is neither.

Two common types of small-group, pre-trial research are focus groups and mock trials. Although focus groups and mock trials have many similarities, focus groups are generally shorter in duration and less complex in scope.

Focus group research involves brief presentations of a case to a panel of surrogate jurors. The presentations can be tailored to focus on a few specific themes, facts, key witnesses, demonstratives or arguments. In contrast, mock trials usually involve more extensive presentations of the case, including key testimony, exhibits, demonstrative evidence and arguments.

The purpose of pre-trial research is to discover the range of attitudes, beliefs and experiences that jurors will bring with them into the courtroom. By studying a representative group's response to a case, attorneys are able to understand the underlying emotional and psychological motivations of potential jurors.

Oftentimes, critical viewpoints or reactions that otherwise would not have been anticipated by the trial team are identified during pre-trial research projects. In understanding these motivations, a trial team is better prepared to address and plan for how a jury will absorb the information presented at trial.

Yet, small-group, pre-trial research is only as effective as the way it's conducted. Unfortunately, many attorneys do not utilize trial consultants who are trained in the methodologies that ensure quality results. Attorneys who carry out their own research may save on expenses, but will surely sacrifice quality information in the process. Here are five common mistakes made in pre-trial research:


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