When it comes to winning a case, there is probably nothing as important as pretrial research. By conducting pretrial research, the trial attorneys can confirm valid reasons for believing the jury will react in a predictable way when a defined stimulus is applied. The most helpful types of pretrial research are trial simulations and witness evaluation groups.
The trial simulation is our standard form of pretrial research. Trial simulation research requires a consultant to plan a research design for each trial simulation to answer the specific questions targeted by the research. In addition to the targeted research, each trial simulation will give ancillary information as a byproduct of the exercise. A trial simulation designed specifically to estimate case values may also provide information on the best juror cohorts, jury response to attorney presentations and the impressions of important witnesses or demonstrative evidence.
In a trial simulation, the surrogate jurors will help identify the case's strong points, as well as areas of difficulty. Trial simulation research may also be designed for the introduction of one or more variables before different juries. This design will allow the attorneys to evaluate the most effective way to present the case and provides an opportunity to test various theories prior to trial. Additionally, jurors can produce damages information that will help you establish an appropriate settlement position.
In all trial simulations, jurors are examined through an initial screening questionnaire, a pre-presentation questionnaire, a post-presentation questionnaire and an individual verdict report. In addition, these jurors deliberate while their group process is remotely monitored and recorded, allowing attorneys and principals of the case to watch the deliberation in real time. After the deliberations are complete, our consultants examine all the collected data, from the jurors as individuals and as juries. Once this analysis is complete, we generate a detailed report within ten days. This report is used as a trial guide to adjust trial strategy preparation based on the findings of the research.
Litigation focus groups are small group studies intended to test jurors' reactions to a stimulus. By design, they do not yield data subject to quantitative analysis. Due to their size and design structure, they should never be used to measure probable damages outcomes. Litigation focus groups are usually referred to as "concept focus groups" and are intended to be used prior to the completion of discovery to measure the central tendencies of a small group and yield information that will give the attorney insight into how to proceed with discovery. Litigation focus groups are often used by plaintiff attorneys to determine the viability of a case prior to investing time or money into the process.
Witness preparation is a critical part of any case. This is especially true if the witness is also a plaintiff or defendant in the case. The witness is personally involved in the case and, because of this, falls victim to many pitfalls. Witness preparation is vital to guard against these errors.
When we conduct witness preparation, the witness is subjected to a direct examination followed by an anxiety-producing cross-examination. This entire process is videotaped. The consultants at Jury Behavior Research then critique the witness and conduct a debriefing. All aspects of the presentation are examined.
Consultants comment upon the manner and style of dress and the general appearance of the witness. We examine the witness' word choices, their expressions, their defensive posturing, their neurolinguistics and the biological manifestations of their internal reactions caused by anxiety. Detailed protocols are used to ensure nothing is overlooked.
After the witness has been thoroughly prepared, they are given the videotape of their testimony. There is seldom anything more convincing than watching your own errors on your television.
Depending on the type of case and the amount of exposure, witness preparation ranges from the very simple, as detailed above, to the extensive witness evaluation focus group. Our consultants will use the method best suited to your case and will improve the probability of a favorable performance by your witness. After trial, many of our witnesses have commented that the actual testimony was much easier than the preparation. This is because a well-prepared witness does not experience the anxiety and error of an unpracticed presentation.
Jury selection is one of the most important aspects of a trial and is often approached with little or no preparation. Few attorneys have had the opportunity to study behavioral science or any field that gives them an insight into group dynamics and personal cognition. As a result, attorneys are armed with few skills with which to conduct voir dire and jury selection. In addition to these problems, attorneys must also attend to last-minute motions and rulings, as well as practice their opening statement, all while thinking about jury selection. We can relieve the attorneys of this burden.
Jury selection is really a process of jury de-selection. We are not allowed to pick a jury; we are merely allowed to dismiss from the panel those persons we feel are inappropriate. For that reason, it is important to have insight as to who the leaders will probably be. A juror who would probably not see things your way is not very dangerous if they are a person not inclined to speak up during the deliberation process. On the other hand, a juror who is moderately against your case would be very dangerous if they are likely to be the jury foreperson.
Many of us have been told that jurors who fold their arms are shutting us off. Likewise, there are people who tell us minorities award more money in civil cases. Depending on where you went to law school and where you practice, teachers are either very good or very bad for the defense. Jury selection is never this simple. A 25-year-old African-American who is unemployed and lives in Los Angeles would probably arrive at a different verdict in the O.J. Simpson murder trial than would a 61-year-old white farmer from Wisconsin. Many aspects of the prospective jurors must be considered because they all bring baggage to the jury box.
The professionals of Jury Behavior Research draw upon their experience de-selecting thousands of jurors. Our consultants have also observed several hundred juries deliberate during trial simulation research. Our staff has observed these deliberations via video cameras with live feeds to a viewing room. Nothing can replace the experience gained by watching the dynamics of different juror types as they go through the stages of deliberation. The types of jurors, as well as the stages of deliberation, are well known to our consultants.
Our de-selection process incorporates the use of juror questionnaires, mini openings and a concise voir dire; all of which are based upon sound research and scientifically valid systems. One of the additional tools we use in this process is our proprietary jury selection software. This program allows our consultants to manage a venire of up to 160 potential jurors without losing any vital information.
A shadow jury is a selection of surrogates from the trial venue who reflect the empaneled jurors. These surrogates observe the trial during the day and are debriefed by a consultant at the end of each trial day. Our consultant then meets with trial counsel to discuss the information gleaned. Trial counsel must know whether they have been convincing the jurors with their important points during the day. The areas in which the jurors remain unconvinced can then be identified and revisited the next trial day.
Witness evaluation groups are most critical when a case may rise or fall on the testimony of a single witness. Medical malpractice is such an area. Defense teams in medical malpractice cases are increasingly relying on witness evaluation groups to assist in the management of medical malpractice cases.
Defending a professional person in a malpractice case is often an extremely difficult task. One of the most dangerous professional areas is that of medicine. The defending attorney in a medical malpractice case must be more than familiar with the law; he or she must be competent in the area of medicine under scrutiny. Normally, there is at least one insurance carrier involved and often there are one or more excess carriers. The potential for damage to both the physician and the insurance carrier is extreme. There is so much to be done that there is usually little time devoted to the development of the professional as a witness. This can leave a critical gap in the case. We have designed a system and methodology to thoroughly prepare the accused professional.
A jury of twelve persons is recruited from within the jurisdiction of the court that will hear the case. These surrogate jurors are selected from a pool of persons who are likely to be called for jury duty. Efforts are made to approximate the juror cohorts that would be found at trial. The jurors are convened at a conference center, where they are briefed with an uncontested statement of facts. The consultant first briefs the jury and then acts as a judge for the remainder of the proceedings.
The defendant physician will be examined first by his or her own attorney. The initial direct examination should take approximately 60-90 minutes. It should deal with the primary issues the defense attorney feels would be raised at trial.
After the direct examination, another attorney acts as the plaintiff's attorney and conducts his/her examination. The attorney conducting the cross-examination should be a stranger to the physician. It would be inappropriate for the physician to have had any social contact with the attorney prior to this time. The reason for this is to most accurately duplicate the situation that will exist at trial. Cross-examination by a stranger also increases anxiety. The cross-examination should be detailed, adversarial and supported by records. If trial counsel is familiar with the actual plaintiff attorney, efforts should be made to replicate her/his method of examination.
Later, the jury is debriefed about the case and the witness. Jurors express how the witness made them feel and if they would believe the witness. The skills and presentation of the witness are thoroughly examined. After the debriefing, the consultant will meet with the physician, the physician's attorney and the principals of the insurance companies. Using a structured format, the consultant will cover every aspect of the presentation of the witness. Recommendations for improvement are provided at this time.
In many cases, the amount of pretrial research that can be done is limited by budgetary constraints. Even without conducting a trial simulation, our consultants can work with trial counsel to establish strategy for trial based upon our knowledge of cases similar to the case at bar. After a careful review of case documents, our consultants work with the trial team to bring a fresh look to the case based upon social science.