Using jury research to settle cases
In an April 7, 2008 article published in LawyersUSA, Richard Gabriel trial consultant, addressed the means of determining how much a civil lawsuit was worth was examined. The article referenced that traditionally, the answer to the question of what a case was worth was usually determined by three factors: the calculation of actual and economic damages, the cost of litigation and appeal and how jurors will actually value the case.
The biggest mystery in the process is the third category, how a jury will value the case. In mediation and settlement talks, “what the jury will award” is usually an educated guess. The parties talk about how sympathetic the plaintiff will appear, how persuasive the defense lawyer’s arguments will be, how angry the jury will be about a certain memo or e-mail and how the nationality of the defendant will have a negative impact on the jurors. Frequently these arguments are discounted as wishful thinking.
The article addressed how jury research, in the form of focus groups and mock trials, is being used in mediations and settlement discussions to attempt to show the parties how a jury will actually decide and value the case.
Typically, a trial consultant will usually prepare a report after a focus groups or mock trial is completed. That report may include charts detailing the juries’ verdicts, the damages they awarded (both collectively and individually) and how they apportioned fault. The report may also include charts of some of the jurors’ key life experiences related to the litigation and their general attitudes about the main issues in the case.
Then, the consultant and the lawyer may choose video clips of jury discussions or deliberations on the main issues in the case which contain the reasoning behind their verdicts and award amounts.
The author addresses his feeling that the least effective use of jury research is when the attorney walks into the mediation with a series of talking points, summarizing the main findings of the research as well as arguments as to why the research informs and validates his or her view of the case. Because there is nothing more concrete than the attorney’s word, this can be dismissed as merely an advocate’s view of the case, perhaps backed by a few people paid to give the lawyer the result he wants.
A more effective way to use the information would be to present the mediator with the findings in the form of charts and DVD clips. For example, in a contract case involving the sale of a computer company, the plaintiff was offered the insurer’s $100,000 policy limits. After seeing a first set of focus groups, which showed juror confusion about the contract and criticism of the plaintiff, the attorney was close to accepting the defense offer.
Doing a second set of focus groups allowed the plaintiff’s attorney to refine his approach and focus on the misconduct of the purchasing company. This reframing of the case, along with charts and clips of the research results, allowed the plaintiff to persuade the mediator to negotiate a $2.3 million dollar settlement instead of settling for the $100,000 policy limits.
A technique that is being used more often is to bring the consultant who conducted the research present the jury findings at the mediation, preferably to both the mediator and the other side.
This research provides the mediator and opposing side with the strongest evidence and arguments articulated by jurors rather than by the lawyer.
Jury research can address the concerns of multiple parties in mediation or settlement discussions. As a result, it can help persuade the mediator that the case is likely to be resolved more favorably for one party.