Designing Winning Strategy: The Value of Discovery-Phase Jury Research
When is the ideal time to conduct jury research?
That’s a trick question, because there are two major categories of jury research, when it comes to design and timing. First, the more familiar mock trial. Second, discovery-phase focus group research. Discovery-phase focus group research is emphatically not a mock trial, nor is it a substitute for one. Which is best? And do you need both?
Discovery-phase focus groups are done early in a case – during the discovery process. This early jury research is generative: it is designed to uncover the questions, beliefs, and frames of reference that all types of potential jurors will likely bring to case. The insights from discovery phase focus group research are used to help develop a compelling case theory and narrative, including themes, metaphors, and analogies to support it.
Both discovery phase focus group research and mock trial research are valuable when conducted at the right time. Focus group research conducted close to trial can be as unsatisfying as mock trial research too early before the case strategy has been developed testing prematurely.
Mock trial research is designed to test a developed trial strategy through argumentative case presentation with a mock jury deliberation of key issues. To get the most out of a mock trial, key depositions need to be taken and evidence developed enough to present compelling case presentations for each side. Mock trial insights and strategy recommendations are used to refine and adjust the trial strategy. Where the data allows, mock trial research can yield a juror profile of the attitudes and characteristics of jurors who are likely to favor the plaintiff, and those who are likely to favor the defendant.
When we conduct mock trial research, we are testing the case – usually a few weeks or months before trial. By this stage, depositions are largely completed, and the case facts have been developed. Waiting until your case is ready for trial, however, precludes the opportunity to design a juror-centered trial strategy from the ground up.
In contrast, discovery-phase research helps you understand basic human motivations when it comes to the big-picture subject matter and fact pattern your case presents. The goal is to uncover attitudes, beliefs, and experiences that potential jurors will likely bring to your case before you design your trial strategy. The outcome? Better persuasion.
It’s Not Too Early
While you might not know the nuances of your case, you do know the subject matter and can put your hands on a few key documents. Early discovery-phase research is designed with your limited knowledge in mind: we start broad by exploring the attitudes, experiences, and assumptions that potential jurors bring to the key issues in the case, and then go deeper into case issues. In an insurance coverage dispute, for example, we want to understand how jurors understand insurance, their experiences with insurance companies, their experiences with reading policy language, and their beliefs about contracts, before getting their reactions to the specific contract language at issue. In a trade secrets case, we need to broadly understand jurors’ experiences with employment, confidential or proprietary information, and how secrets should be maintained. We want to explore jurors’ ideas about confidentiality and what burdens the various players have to keep things secret.
The Power of Leverage
There is a physics to your trial strategy’s effectiveness: the farther from trial, the more potential to influence outcome. Through the power of leverage, early inputs can have profound impact at your trial (or favorable settlement). In contrast, as we get closer to trial and most everything becomes set, it gets increasingly hard to make needed adjustments. The power of leverage is such that there is incredible value in understanding decision makers early in the trial process and let those insights guide and shape discovery. In contrast, it can be hard to move the needle at the close of discovery.
Identifying insights early in discovery allows persuasive themes to be incorporated into the trial strategy in a variety of ways. Once you know what sparks jurors to lean towards your client, then you can:
- Test a general theory of a case: Before you use it in discovery, to prepare your witnesses, and to test your case theory.
- Work your general theory and themes into the depositions you take and defend: It’s frustrating to discover a new and persuasive theme that emerges from mock trial research because its full implementation is limited. Witnesses have to pivot and use it for trial testimony without the benefit of it being their go-to theme during deposition. Cure this problem with early focus groups.
- Explore how to navigate problematic evidence and frame the issues effectively: Prepare how to build your arguments about the “warts” of your case before early hearings and depositions. Early focus groups help you develop an approach and prepare witnesses to use the most effective theme, justification, or mitigating circumstances for bad facts.
- Develop an effective company story: Creating a personality for your corporate defendant from the beginning can help, not only in this case, but in future litigation, as well.
A Sound Investment
Investing early in jury research can save time and money in the long run and radically shift the case outcome. At the end of the day, you and your client will enjoy a more predictable and better outcome at trial. In the meantime, you can expect better-prepared witnesses for deposition and reduced costs for unnecessary discovery. Early focus group research is advantageous even if the case is not likely to go to trial – it can help position more favorably for mediation and possible settlement.