Download this articleThe short answer is an emphatic yes. But for any litigator who's looking for a competitive edge while keeping a close eye on costs, new online research tools merit a longer discussion. As one attorney said to me recently, clients want it both ways. "They want us to win – and win big for them – but watch legal costs like budget hawks," she said. "There is definitely a new normal out there."
The new economic reality has hit the legal profession particularly hard, and at its core presents a challenge of conflicting expectations: law firms must deliver successful results AND savings to their clients.
The good news in jury research is that, for the first time, it's possible to do both.
Technological breakthroughs give lawyers a powerful alternative to costly traditional jury research.
That's because new online options leverage new technology to drive down costs, while assuring both accuracy and security. In the case of jury research, those savings can run to the tens of thousands of dollars.
"Doing jury research the traditional way – a mock trial in front of a focus group of 25-36 jurors – can easily run as high as $90,000," says Mark Sobus, PhD at R&D Strategic Solutions and an expert on jury research. "Online research – customized to exactly what a firm is looking for – can cut costs by well over 50% and in many cases can be completed for under $15,000.”
For many complex and high stakes litigation cases, traditional mock trial research continues to be a valuable weapon. But for the vast majority of cases tried or settled in a typical year, online tools provide lawyers a powerful way to do jury research without breaking the bank.
In so many aspects of our personal and professional lives, web-based applications are producing incredible results at a mere fraction of previous costs. Jury research is no exception to that trend. And that's very good news for trial attorneys.
How online jury research works
Online tools give attorneys control over every aspect of jury research. Attorneys pick the jurisdiction from which the jurors are drawn, usually the location where the matter will be heard. They select the number and types of jurors they want to poll. A minimum of 36 people are recruited – but in many cases, it is both economical and practical to recruit triple that amount.
Attorneys can specify the exact make-up of the focus group, selecting the age, gender, income, education, religion, and other demographic characteristics of each juror. Based on all those inputs, the mock jurors simply log onto a secure online environment instead of traveling to a law firm or focus group location.
In addition, attorneys control every aspect of the content. It can take the form of a sophisticated questionnaire, video presentations of arguments and experts, or a combination of both. Jurors are given a set timeframe in which to view the video presentations, complete the questions and provide their reactions to the presentations. They provide in-depth feedback along with detailed information about themselves. Importantly, the technology also allows attorneys and their clients to view jurors’ moment-to-moment reactions to each argument presented.
Answers and insights beyond jury research
Because it is so flexible and affordable, attorneys are using online jury research for a wider range of issues, including the ability to poll on a much larger scale (100-200) and smaller dollar-value cases. And they're leveraging the technology for other phases of case preparation, including to:
- Test a variety of legal arguments, not just one. You can record several distinct story lines to see what resonates best. Test out all your approaches to see if any of them work – before you invest serious time and resources.
- Explore venues – what jurisdictions are best for your side?
- Test your experts – they may have sterling credentials, but how do they play in front of a jury? What kind of jurors find them likeable, credible? Or are they great on paper, deadly in person?
- Determine how your clients fare in front of jury – they may have an actionable claim, but certain arguments do not ring true. Can your case be saved by seating the right jurors?
- Assess damage awards for your fact profile – you can determine with confidence the right amount of damages to expect for your facts in your jurisdiction. For plaintiffs, it means getting the best settlement for your client. For defense, it means getting to a realistic number more efficiently, with far less back and forth.
Online jury research tools put those answers and more within reach of attorneys for whom in-person jury research is too expensive or time-consuming.
From zero to actionable results in four days
Consider for a moment what it takes to put together a good in-person mock jury. It's a matter of weeks of time and effort, at best. Contrast that with an online approach. Attorneys can identify several arguments to test, make short video presentations outlining the key arguments for both sides, and their role is complete. Then an online partner recruits mock jurors to test the arguments (we recommend using 100 mock jurors), and in under a week you have the results in hand. Importantly, the results in a recent online study were dramatic – one argument was clearly the winner, two were non-starters, and the attorneys were somewhat surprised. Literally, in less than 10 days the team went from having some questions about their case to having reliable and detailed feedback from a large representative sample of jurors.
A wealth of data from every online focus group
Whether testing arguments or profiling jurors, attorneys get data from online research that can be mined for gold nuggets in ways they weren't even considering.
Because of all these benefits, the time and conditions have never been better for online jury research. The technology is there to deliver the kind of accurate, actionable results attorneys need for their trial preparation and presentation.
Online jury research will be the way lawyers do research in the future. And companies are doing it at such a sophisticated level that it lets lawyers literally customize the exact research they want – at a cost that makes it a viable option.
Sharon Shofner-Meyer is an attorney and president of LookingGlass (www.lg-juries.com), an online jury research tool that allows law firms to cost effectively get the many features of jury research in a secure and effective online format. LookingGlass is owned by R&D Strategic Solutions (www.rd-ss.com), a nationally recognized team of jury consultants working on high profile trials regarding case analysis, jury selection, venue analysis, attorney training, witness preparation and more.
It will indeed be interesting to see how the trajectory of online research methodologies, techniques, and technologies unfolds, and what impacts it may have on our work. This article seemed to be more of an advertisement for the services of the author, rather than an even-balanced evaluation of the use of internet-based research methods and whether “it is time” for their integration (and in what form). I do not think that there is any way we can responsibly affirm that we are in the place where we can answer “with an emphatic yes” that the time is right for online jury research. Though the author seems to unequivocally suggest this, I don’t think any consideration of this topic would be complete without taking a careful look at some of the possible issues that may accompany the adoption of online research methods. When drawing conclusions about the appropriateness of online research, I would have liked to see more information about significant issues and questions have been raised about the use of online research methods, in general. Sampling procedures, issues with sample representativeness (not merely demographically, but with respect to other important factors such as attitudes and experiences), unit and item nonresponse bias, control over participant involvement, understanding of mode effects during stimulus presentation, and response sets and biases are but a few examples of the things that have been discussed in other realms, such as in the field of survey research as it has worked to examine and incorporate new online tools and techniques. These issues are similarly important to our work as consultants, and are critical to the validity and reliability of the data that is produced by online methodologies. Convenience and reduced cost, while undeniably very attractive on the surface, are of little help to our work if data quality is compromised. This is not to say that any and all online research in the domain of litigation consulting is definitely undermined by these issues; however, they are of critical importance as we consider incorporating them into different facets of our practice. Work done in other areas, such as social science research methods and survey research, has explored some important aspects of and caveats to the use of online methods, and consultants and lawyers should be advised to consider this body of work and other issues in their ultimate decisions. Online research may be a useful tool, however, at the current state, whether or not it is appropriate for a given application within one's practice is far from an emphatic affirmative.
What this enthusiastic endorsement from the President of an online research company shows is that the online research model is out there, it is feasible, and it has a lot of advantages, not least of which is cost (as noted by Dr. Sobus of LookingGlass’s parent company). What I think would be more useful is a consideration of some of the benefits and drawbacks of the research model, as well as the additional precautions that need to be taken with this method. I expect that companies have come up with answers to these questions, but for anyone contemplating the research method, it is well worth asking:
1.) To what extent can I confirm that research participants are drawn from the local venue? Knowing that the method isn’t perfect with in-person research either, at least in that method, you are starting with a known phone number with a known local prefix.
2.) To what extent are research participants randomly selected, as opposed to volunteers? We know that folks who ‘opt in’ to a study like this are likely to differ from actual jurors (who are often more focused on opting out). Random digit dial is one (admittedly imperfect) tool to promote realistic selection. What parallel does it have in online jury research?
3.) How do you guard confidentiality? E.g., if a screened individual can simply pass on an link and a password to an unscreened individual, then you have a problem with the research getting into the wrong hands.
4.) How do you ensure that participants are actually exposed to the stimuli (text, video etc.) as opposed to moving as quickly through the survey as possible, in order to get to the next survey?
There are others, and like I say, I believe that there are answers to these questions. We aren’t against online research (we’re actually completing a very large, 2,000+ participants, online mock trial right now), so there are ways to do it. There are also some other huge advantages of online methods (like ‘branching questionnaires’ that allow you to query the pro-plaintiff jurors differently than your pro-defense jurors, for example). But what moves this discussion beyond what M. Thomas above calls the “advertisement” phase is a careful discussion of precisely these issues – the full advantages, but the drawbacks and the precautions as well. A good follow-up piece would include a focus on “online research best practices.”
As a younger individual who once considered this career path but was deterred by the prospect of effectively helping tilt the scales of justice in favor of wealthy defendants, I would be curious to hear people's thoughts on whether the eventual rise of cost-saving online jury research methods might make it more feasible for trial consultants to serve more attorneys who represent financially limited clients.