By Dr. Ken Broda Bahm:
Gone are the days when trial consultants were just jury-pickers. Today, your trial consultant — more broadly, a litigation consultant — is likely to offer a variety of services ranging, as we say, “From first filing to final appeal: “case assessment, strategy, witness preparation, mock trial and focus group research, and jury selection as well. Speaking from our own experience, one of the less frequently-used services within that toolbox is the community attitude survey, or “CAS.” It means polling 300 or so within the juror-eligible population in your trial venue to discover and use the particular attitudes and beliefs that characterize your venue. Unlike the special purpose surveys associated with a change of venue motion, the surveys I’m referring to are conducted with an eye toward remaining protected work product which is used to inform the attorney’s strategy for trial. The relative infrequency of that kind of survey is surprising because many of the barriers that can pull attorneys away from other consulting services aren’t present with the CAS: They’re not typically high dollar, usually don’t involve long-term planning and advance notice, and rarely take much if any time from the attorneys. But they can be enormously useful. Here are seven ways to use them.
Community Attitude Surveys Can Be Used To…
1. Choose Your Trial Venue
Outside the specific situation of a change of venue motion, there are other scenarios where you might have some choice on where to file or try the case. In those settings, your high-stakes decision needs to be based on more than just demographics, which are not predictive of ultimate verdict. Instead, when you face a choice, take the time to measure the case-relevant attitudes and experiences in the venues you are comparing.
2. Assess Knowledge of Your Case
The claim behind a change of venue motion is often that the pool is too knowledgeable, but even if you are unlikely to reach that threshold, it still can be helpful to ask how knowledgeable the pool is. Knowing that will help you advise the court on how large a pool you’ll need, and it will tell you what kind of case knowledge you’ll need to probe for in voir dire, and what knowledge you should incorporate or correct as you try your case.
3. Learn Case-Relevant Attitudes
Your case will play out in the context of the jury’s current attitudes and beliefs. A corporate defense case, for example, will be understood in the context of what the jury knows or thinks they know about big companies, and how they feel about it. For that reason, the bread-and-butter purpose of a CAS is just to precisely learn that context. If you know going into trial what attitudes you are dealing with, you are better able to assess your case for settlement or to pitch your case in a way that reacts to or builds on existing attitudes.
4. Test a Thumbnail Version of Your Case
A CAS differs from a mock trial or a focus group because you are getting information from your research subjects more than you are giving information to them. You cannot try your case in a survey. But at the same time, you can test the first-impression reactions to a simple scenario. In a products case, for example, we asked the following: “A consumer bought a product from a company and experienced a severe injury when using the product, and is now suing the company. The consumer followed some, but not all of the safety precautions on the label. Knowing nothing else, would you be more likely to lean in favor of the consumer, in favor of the manufacturer, or to not lean either way?” Even from that basic information, close to eight in ten reported a leaning, and it helped to know which direction was dominant. That won’t be the jurors’ final answer: Of course they’ll need to hear more and see the evidence. But that thumbnail will tell you what first impressions you’ll have as of opening statement.
5. Provide a Baseline for Mock Trial and Focus Group Research
A mock trial and a focus group will measure the research participants’ key experience and attitudes. But a CAS allows you to have a much larger sample and is more likely to be statistically representative of your trial venue. That means if you do a CAS first, then you can use those results to inform your recruiting of mock jurors for your mock trial or focus group. You will also know when they show up which mock jurors represent the best-case and worst-case scenarios for what you will see in actual trial in the venue.
6. Select Questions for Voir Dire
Another advantage of the larger sample sizes for the CAS is that you have a far better shot at discovering statistically significant relationships among answers on the questionnaires. For example, if you find that those who answer particular attitude- or experience-based questions are significantly more likely to favor the plaintiff in a scenario, like the one discussed above, you will know exactly what to explore in voir dire. For example, we have found that many questions relating to anti-corporate bias, need for cognition, anti-plaintiff bias, and a wide-variety of other questions relating to specific case types (e.g., patent, product, employment and other attitudes), are strongly predictive of ultimate leaning. When you strike potential jurors on that basis, you’ll have confidence that you aren’t just acting on a gut feeling or a hunch.
7. Create a Reference Point for Peremptory Strikes
During voir dire, a potential juror will express an attitude, and it can be helpful to know whether that attitude is better than most, worse than most, or par for the course in this particular trial venue. The CAS will tell you that. When coupled with a supplemental juror questionnaire, the survey can carry a big advantage. If you plan both ahead of time, they will include many of the same questions, and the CAS data will tell you how to interpret and to weigh the responses you see in the juror questionnaire and hear in oral voir dire. The CAS provides a backdrop for understanding the answers and informing your strikes.
When picking a jury, conducting pretrial research, assessing your case, or assessing your venue, knowledge is power. A community attitude survey is a good way to get that power.
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Other Posts on Community Attitudes:
- Note the Difference in Self-Service Survey Techniques
- Put Your Jury Selection on Steroids by Leveraging Pretrial Research: Lessons from the Barry Bonds Trial
- Conduct Discovery on Your Trial Audience
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Photo Credit: Toshiyuki IMAI, Flickr Creative Commons