Is your trial story believable? What are the strengths of your case you can emphasize? What are the weaknesses that you can eliminate? What are the trial themes that are persuasive? These are only some of the questions that jury research can help answer.
Despite the opportunity to conduct structured jury research, I have heard many times in my career from trial counsel that, "I do not need to conduct jury research because I test all my cases on my paralegal." As a jury researcher, I certainly cannot state that the quantitative and qualitative data received from "testing" a case on a paralegal is scientifically valid; however, I do understand and appreciate why many trial counsel rely on their paralegals to provide valuable feedback on the persuasiveness of the story line and themes of the case.
Before we get into the reasoning for why paralegals are sometimes relied upon to fill the role of mock jury, it is important to understand the methodology behind jury research. Jury research provides the opportunity to evaluate how jurors view key arguments and evidence in a case. This is done prior to trial by testing themes and arguments in a case to a panel of surrogate jurors. A typical jury research project involves a focus group, where jurors are matched to the venue based upon numerous demographic variables. These jurors are then carefully screened to assure that they are jury eligible before being placed on the mock panel. Attorneys deliver a presentation for both the plaintiff and defendant. The presentations are thematic in nature and generally supported with key documents, graphics, and testimony.
The results of the presentations are evaluated in the following three manners:
1) Questionnaires: Jurors answer a series of questions at different phases in the jury research that are designed to measure their key beliefs and attitudes, their reaction to the strengths and weaknesses in the case, and their feelings about liability and damages. These questions are administered in three phases:
- Pre-stimulus: The questionnaires are administered to the jury prior to hearing the case information to gain insight on the key attitudes and beliefs that jurors bring into the courtroom.
- Post-presentation: Jurors answer a series of questions designed to measure the strengths and weaknesses of the presentations by the plaintiff and defendant.
- Post-stimulus: Jurors provide feedback to case specific questions, which provide an understanding on how jurors approach the verdict and damages, prior to entering into deliberations.
2) Deliberations: After the presentations and questionnaires, the jurors are separated into groups. They are provided a verdict form and jury instructions and given the opportunity to deliberate without moderator interference. Once jurors reach a verdict, they are interviewed about their decision-making process and a variety of other issues related to their perceptions of the case. Consultants look to determine which themes fuel jurors' verdict preference.
3) Impulse System: During the presentations, jurors are provided with an remote control voting mechanism. The impulse system is designed to allow each juror to provide instant feedback to the presentations. This instant feedback will be analyzed to determine the arguments that are perceived as strong or weak.
After the deliberations, all of the qualitative and quantitative data is thoroughly analyzed. Consultants spend many days analyzing the information and report back to the trial team while focusing on identifying key strategies, risks, and recommendations to assist in developing the most compelling story for trial.
Now that you understand the jury research process, a look into how jurors form decisions provides context to why paralegals can assist trial counsel in providing valuable feedback about the case's persuasiveness. Based upon conducting jury research and the study of jury decision-making, we know that jurors are persuaded by powerful trial themes. A theme is something important the story tries to tell the jury—something that the jury can relate to in their own lives To provide you context, think about your favorite movie. Usually, your favorite movie has a theme that draws you into the movie and that you relate to. Jurors approach the case in a manner that is similar to you choosing your favorite movie. Jurors look to determine what theme in the case they enjoy and can relate, empathize or rationalize with.
To further illustrate why trial themes are so crucial to develop, one should also consider that jurors are required (summoned) to serve as jurors. Being a juror is not any easy task. For many jurors, it is stressful due to constraints on their time. For many other jurors, the information they hear at trial and the trial presentations are complex and burdensome. To make matters worse, jurors are generally not allowed to ask questions, sometimes cannot take notes, and cannot seek out independent information that would facilitate their understanding. At the end of the trial, jurors are then forced into a deliberation room with a number of their peers and told they must render a verdict. These deliberations have the potential for conflict and can be extremely stressful to many jurors. Therefore, to make the information in the case easy for a juror to understand and to assist jurors in rendering a verdict, jurors yearn for information to be simplified and packaged in themes.
Trial counsel should rely on paralegals because they can separate themselves from the case. They, unlike many attorneys, are not wrapped up in the minutia of facts and legal arguments. Therefore, a paralegal provides lawyers with an objective ear and an opinion about whether the attorneys' trial themes are persuasive.
Beyond lending an ear and an opinion on the eve of trial, attorneys should utilize the unique and objective services of a paralegal at the discovery process.
With the understanding that jurors are persuaded by powerful trial themes, a paralegal can assist trial counsel in developing and organizing their trial themes during the discovery process. In order to accomplish this task, the trial team should meet prior to discovery and discuss the themes in the case that they are looking to develop. Thereafter, the discovery materials should be organized by theme, rather than by document type or deponent name. This will assist the trial counsel to focus earlier on the strengths and weakness of the trial themes.
While not every case is made for jury research, a trusted paralegal can act as the de facto jury consultant by keeping the trial counsel thinking about the themes that will be persuasive to a jury. From the beginning of discovery to the time of trial, a good paralegal should be asking him / herself what are the themes we are looking to develop? How does each document or deponent support our trial theme? Is the evidence that relates to the theme we are gathering persuasive? Finally do I like this trial story?
In short, a good paralegal knows when they hear a good trial story!
