Modernizing Jury Research

          Last week’s post referenced the problem of information overload and asked whether practice oriented jury research provides attorneys with a worthwhile benefit.  This week I will attempt to answer that question, keeping in mind that attorneys have to purchase information on a fixed budget and analyze information on a tight schedule.

Litigator Info Overload?

          As discussed last week, it appears that the most common form of practice oriented jury research is the hiring of a jury consultant.  It is extremely difficult, and some say impossible, to measure the success rate of a jury consultant.  There are simply too many potential variables that cannot be controlled (e.g. the same attorneys would have to present an identical mock case to a voir-dire-selected jury and a randomly selected jury, but the attorneys would have the advantage of one round of practice when performing the second mock trial).  In basic terms, there are two types of services provided by jury consultants: assistance in selecting/striking jurors during voir dire and assistance in testing the lawyers' arguments on sample juries. Practicing attorneys debate over whether each service is effective and worthwhile.
          When jury consultants are retained to help the lawyers during voir dire, the consultants usually research the demographics of the trial venue and test the population with questionnaires.  While there is a lot of high-profile anecdotal evidence about the success rate of this jury consultant function, psychological studies reveal that having information about a person’s demographic background only improves the ability to predict that person’s decision as a juror by about 10-20%.  When you consider that a prediction for each juror’s decision will need to account for the interaction between the various jurors as a decision making body, and further account for the strategic moves of the opposition, even some jury consultants compare the success odds to gambling in Atlantic City. 

          When jury consultants are retained to help the lawyers test their arguments on sample juries, the jury consulting involves recruiting jurors, making arguments for both sides of the case, sending the jurors to deliberate, observing the jurors, conferring with everyone about the observations, and drafting a report hundreds of pages long detailing the findings.  While this jury consultant service is aimed at practice in theory, even some jury consultants say that litigators waste too much time on the jury consulting aspect at the expense of, wait for it . . . practicing their arguments.  
In sum, both types of traditional jury consulting services require large investments of time and money.  As such, there is a solid argument that traditional jury consulting leads to attorney information overload: the information’s worth is questionable, the monetary cost of the information eats into the attorney’s budget, and the temporal cost of the information distracts the attorney from other more basic beneficial practices.

Reform

            Does this mean that attorneys should go into trial without performing practice oriented jury research?  Jury consultants say no.  After the economic downturn in 2008, jury consultants began to package and pitch cost-effective consulting services.  Some jury consultants have also started to offer so called modern jury consulting services.  The basic message of the companies offering modern jury consulting services is this: technology has evolved and so should jury consulting.  Even though the merits of modern jury consulting are also difficult to measure, there are a number of attributes of modern jury consulting that diminish the risk of information overload to the attorney.

• Cost.  Consultants are offering online mock jury studies for $600-$2000.  Jury consultants are also offering more tailored packages to litigators, so that litigators can research only the most difficult jury related issues in their case (e.g. which of my two damage experts is more personable?).
• Time.  The results come in from an online mock trial in 2-3 days.  Results from social media questionnaires come in at near real time speeds, without anyone having to travel anywhere.  Furthermore, the offering of tailored consulting services leads directly to a leaner and more time efficient consulting package. 
• The Power of Big Data.  While too much information can lead to information overload, large amounts of raw information can be useful if a consultant statistically analyzes the data and breaks it down into small, directly usable pieces of information. Collecting information online or over social media not only allows the researcher to collect data from a greater number of people but also allows researchers to enter the information into statistical analysis programs immediately.

Even if litigators cannot determine the extent that practice oriented jury research affects the outcome in litigation, they can diminish the risk of wasting time and money by cutting the cost and making the research quicker while still retaining the potential benefits and the security blanket feeling of having retained a jury consultant.