Jury Summons

Jury Summons

Tuesday, September 30, 2014

Practice Oriented Jury Research: Guaranteed Results or a Big Ticket Data Dump?

There is such a thing as too much data.  Experts from various disciplines have commented on phenomena known as information overload, information glut, data smog, and the big data problem.  See Luciano Floridi, Information: A Very Short Introduction (2010); or see http://en.wikipedia.org/wiki/Information_overload (I know wikipedia is not a trusted legal source, but you were going to start researching there anyway, so I included it for your ease).  A few of the documents problems associated with information overload include:
In the legal profession, there is a copious amount of data regarding jury research both for academic purposes (e.g. testing the adequacy of our system, suggesting possible reforms) and practice oriented purposes (e.g. jury consultants and jury research for an actual case).  This series of posts will inquire into (i) whether practice oriented jury research is beneficial or another example of information overload, (ii) whether the legal profession actually has an obsession with practice oriented jury research, and (iii) whether the legal profession (as in practicing attorneys and firms themselves, as opposed to a regulatory body) should consider reforming its approach to practice oriented jury research.
            Even a third year law student with five months of practice experience such as myself knows that in the legal profession, resources are limited and lawyers exhaust them.  Probably the most limited resource of all is time, especially in litigation.  In the context of a countdown to motion deadlines or a trial setting, calendar days pass by in a flash.  Money is another limited resource in the legal profession.  While some clients in some cases are willing to pay for anything that can conceivably yield them an advantage over the opposition, the majority of clients are not.  Therefore, the majority of lawyers are performing their professional services on a fixed budget.
            When you consider that a lawyer has a fixed number of days and fixed number of dollars to perform her legal services, every action that the lawyer takes needs to be an efficient use of time and money.  Practice oriented jury research is no exception.  The average cost of a jury consultant is $250 per hour, and the average bill ranges from $10,000 to $250,000.  However, in larger cases the consulting can reach over $1,000,000.  The services that jury consultants perform range from pretrial research in the form of focus groups and mock trials, to voir dire assistance, to continued research and evaluation of the actual jury beyond voir dire and into the heart of the trial.  A mock trial alone can cost up to$20,000.
            While it is difficult to find empirical evidence of how many attorneys and firms employ some form of practice oriented jury research, presumably because they either want to keep their tactics a secret or are hesitant to disclose how much time and money they spent, there is ample anecdotal evidence to support the proposition that the legal profession is obsessed with practice oriented jury research.  At least some legal professionals feel that, “if the case is large enough, it’s almost malpractice not to use trial consultants.”  If the most confident of the jury consultants are correct when they “boast that they can predict with greater than ninety percent certitude the outcomes of trials before the evidence has been heard,”  then the malpractice sentiment would appear to be true. 

            At this point it appears (i) that most lawyers involved in valuable litigation are engaging in practice oriented jury research and (ii) that practice oriented jury research is very expensive.  Next week’s post will attempt to answer whether practice oriented jury research is beneficial or just dumps more data (for a hefty price tag) on lawyers already sifting through massive amounts of information.  Furthermore, I will examine a couple of suggested reforms for practice oriented jury research.

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