By Dr. Ken Broda Bahm:
Many have noted that the American trial seems to be suffering a kind of death by discovery. “Just the amount of documents and discovery that you have to deal with before you ever get to a trial are so enormous that the costs are higher and it just bogs the process down,” Michigan Attorney Ron DeWaard was recently quoted. “That is one of the main things I’ve seen that has made it so expensive, and there is so much to do in terms of presentation that you don’t see a lot of trials.” A new article in legal theory, however, raises the question of whether this decline might be driven, not simply by the volume of discovery, but also, by an imbalance in how well litigators know their audiences. The article, “Trial by Preview” (Huang, 2013), comes from Columbia Law School Professor Bert Huang, and argues that while nearly all civil litigants receive a voluminous preview of the evidence and arguments that will come in trial, only parties in bench trials receive their audience’s reaction to that information as it emerges. “Because these reactions often provide a stronger reason to settle,” Huang notes, “the bench trial is declining more swiftly than the jury trial.”
“Parties settle not in the shadow of the ‘true facts’ about the case, after all,” Huang writes, “but in the shadow of the expected verdict.” The bottom line, based on evidence reported in the article, is that parties know more about expected verdict when the fact finder is a judge, and that is why bench trials are leading the overall decline in trials. In contrast to the “judicial preview” provided by the formal and informal pretrial communications from the bench, the future jury remains a kind of black box. In this post, however, I’ll be providing a jury consultant’s reaction to Huang’s article, and arguing that future juries are more discoverable than we might think. The scope of modern discovery may or may not be a lodestone on the civil trial, but as long as discovery in jury trial focuses more on evidence and less on audience, then a lack of knowledge remains an obstacle to both trials and to good settlements.
Research: The Asymmetrical Loss of Bench and Jury Trials
Professor Huang begins with the fact of expanded discovery, which he calls “an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial.” Employing equal measures of logic, game theory, and empirical investigation, he looks at what happens to the chances for settlement as parties receive more and more information about the case. In isolation, the parties’ views of the case might converge, increasing the chances of ending up at the right settlement rather than trial. Or, based on biases and favorable readings of the evidence, they might diverge in a way that prolongs discovery or avoids settlement. The critical factor, in Huang’s analysis, is how well the parties know their audience.
The article is available as a free download (here), but the most interesting part relates to a kind of natural policy experiment he runs using a rules change. When Federal Rule of Civil Procedure 26(a)(3) standardized discovery and provided pretrial previews, it was adapted by different courts in a staggered fashion between 1993 and 2000. Comparing the early adopters to the later adopters, Huang was able to look at whether this increase in information led to more settlements as views of cases converged. What he found was a disproportionate effect of this ‘trial by preview’ in bench trials more than in jury trials.
With a judge, Huang notes, the parties “receive not only previews of these stories to be told at trial, but also a preview of the audience for those stories” as the judge reacts to a parade of motions testing the evidence and the theories of the case. In a jury trial, in contrast, “the fact finder remains unknown, as the jury has yet to be chosen.”
In all cases, of course, the parties tend to be optimistic about their chances — that is part of an advocate’s job, after all. But, Huang argues, “nothing quite cures overoptimism like a judge remarking, on the eve of trial, that in her view the case is a loser.” Because the jury is not yet seated, it is not able to give similar signals. Thus, discovery has had a disproportionate effect of causing more convergence in bench than in jury settings, and as a result, greater chances for settlement and fewer trials. And that is exactly what he saw in the comparison of early and late adopters of 26(a)(3).
Recommendations: Change the Way We Think About Pretrial Jury Research
The article makes an important point about the effects of more information and early reactions to that information. But one premise of the article, “The Unknowable Jury,’ seems to be exaggerated. In one short section of the article, on the 49th page, the author does address the role of pretrial research — mock trials and focus groups — in making one’s future jury more knowable, but he concludes that these options are only present for a limited number of cases.
Professor Huang is on the right track in one way: We should think of pretrial research as a form of discovery. ‘Audience discovery’ may not be able to quite have parity to evidentiary discovery. But if it even had five percent of the emphasis in terms of time, cost, and priority, that would represent a huge step forward for most cases.
In addition to viewing this form of audience discovery as trial preparation, we should also see it — like the other forms of discovery — as a bedrock form of case assessment. Even, and perhaps especially, for the cases that will never see the inside of a courtroom, pretrial research tells us about the quality of our case and places some likelihoods and parameters around expected verdict. It helps to provide a reasonable basis for the choice to procede to trial or to settle.
Here are a few reminders for conducting better audience discovery. Pretrial research on juries is…
Not Just for the Well-Heeled
When he does discuss the role of jury research in making a future jury more knowable, Huang first considers the basic venue knowledge most lawyers have, before noting that “A closer approximation, for parties who can afford them, is provided by jury consultants who put together ‘mock juries’ and ‘focus groups.'” However, he follows that by assuming that these tools are limited to the largest and most notorious trials, saying that “such tools favor well-heeled and more sophisticated parties over weaker ones.” In reality, there is a sliding scale of appropriate models for pretrial research. There are very expensive designs, and there are much more economical ones. But an important point is that lower damages cases still devote substantial resources to evidentiary discovery. At whatever level, a case should benefit from audience discovery at a level that is in some fair proportion to what it is being spent on evidentiary discovery. For those cases that are truly without budget, there is also the chance for pro bono assistance. Ask an active consultant why they don’t do more pro bono and most will answer, “because I’m not asked.”
Not Just for the Expected Verdict
As far as one’s chances of winning, a mock trial or focus group can often be an important reality check for client or counsel. But that is not the only thing to be known. From our own experience, it generally isn’t even the main thing that our clients are after. Instead, we want to look at comprehension, the themes that emerge, and the mock jurors’ views of strengths and weaknesses. We want to see how our critics argue against us and how our own defenders will respond. We want to see what questions they have and what they need to hear more about. These forms of feedback will help to shape the story, guide any remaining discovery, and fine-tune our presentation choices.
Not Just for the Small Groups
We have an image of a group sitting around a table in a room with a video camera or one-way mirrors. That view of the mock trial or focus group is comfortable and familiar, but there are alternatives – some old and some new. An older, but still available and generally more economical alternative is to rely on survey research. Conducting a community attitude survey won’t test the specifics of your case story, but will help you identify the attitudes that will be the foundation for that assessment. The newer options involve online research — settings where you can give respondents a version of the parties’ arguments and get their reactions. In addition, there are even newer options involving ‘social listening‘ that seek to harness existing public discussions on cases and case-relevant attitudes. The more we expand the net on what constitutes pretrial research, the more Huang’s premise of the ‘unknowable jury’ is undercut.
Professor Huang’s article adds to a conversation that is reaching a fever pitch in trial circles: What do we do, if anything, about declining trials? For some, it is a question of “How do we save the trial?” While for others it is, “How do we increase the quality of case dispositions, however they end?” The common ground, however, should be in wanting these decisions — in or out of trial — to be guided by better information. In that context, knowing one’s audience should not be considered just one part of the bloating that is making trials too expensive. Instead, the prescription is:
Know your case, but also know your audience, in order to know the best path.
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Other Posts on Discovery, Settlement, & Trial:
- Break Through the Barriers: The Settlement Series, Part One
- Don’t Pull the Plug on the American Civil Jury Just Yet
- Take a Discovery Lesson From ‘The Social Network’
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Huang, B. I. (2013). Trial by Preview. Columbia Law Review 113, 1323. URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2364983 (Free Download).
Photo Credit: TEDxHouston, Flickr Creative Commons (edited by the author)