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:
·
storing and transmitting big data requires large amounts of energy and the emission of pollutants.
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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