In This Issue:

	Feature Article: Leverage Jury Consulting and Perception Analyzers to Understand What Mock Jurors Really Think About Your Case
	Litigation Minute: The Art & Science of Jury Research
	News & Events

Feature Article: Leverage Jury Consulting and Perception Analyzers to Understand What Mock Jurors Really Think About Your Case

"Knowledge must come through action; you can have no test which is not fanciful, save by trial," wrote the Greek tragedian, Sophocles. When preparing for trial, attorneys should heed this ancient, yet relevant message – the only way to truly understand how jurors will perceive and respond to a case is to put the case to the test.

Legal teams can reliably test litigation strategy and tactics prior to trial through focus groups and mock trials. Jury consultants frequently ask focus groups and mock jurors questions designed to understand their characteristics, preexisting beliefs, attitudes, etc. The traits of the venue-matched focus group participants and mock jurors will likely be shared by the eventual jury deciding the case. Jury consultants also ask case-specific questions designed to accurately elicit the mock jurors' reactions to a case.

During pretrial research, carefully crafting the questions to be posed to the mock jurors is of the utmost importance. A question can be asked a hundred different ways to obtain a hundred different responses. Experienced jury consultants—who understand statistics and the psychology of a question from their specialized social sciences training—may be used to draft an unbiased, neutral questionnaire that will lead to answers that accurately reflect how the jurors feel.

Jury consultants will choose a particular type of question to draw out the information needed (e.g., demographic information, preexisting beliefs or preferences). Jury consultants may ask some questions more than once using a different question type or different wording to test the reliability of the responses; reliability is established when a mock juror provides the same answer to the same question asked in a different way.

Perception analyzers, known also as audience response systems, empower jury consultants to efficiently capture information from mock jurors during pretrial jury research. Perception analyzers are handheld devices that measure individual responses to questions and mock presentations in real time via a dial mechanism. Perception analyzers engage the respondents and, importantly, provide the jury consultants with instant results, allowing a jury research session to be fine-tuned as it progresses.

Using perception analyzers also reduces the risk of contamination from conformity, which can arise when members of a focus group or mock jury become aware of their fellow members' responses, either through verbal discussion or hand counting, etc. In this situation, it is possible that the answers of some in the group will influence how others respond. By using perception analyzers to elicit responses, mock jurors or focus groups are instead unaware of how other participants are answering, thus substantially decreasing the risk of contamination from group influence.

Perception analyzers work well for a variety of question types, enabling jury consultants to choose the most appropriate question type for the information sought while maintaining the benefits of a real-time audience response system, including:

• Discrete questions – e.g., "How long have you lived in this state?"
• Scaled questions – e.g., "On a scale of zero to 10, with zero being never and 10 being all the time, how often do you
  think police make mistakes?"
• Intensity questions – e.g., "On a scale of zero to 10, how believable was this witness?"
• Trade-off questions – e.g., "Is the demonstrative of the accident shown on the left or the right easier to
  understand?"
• Polarization questions – e.g., "Who do you think should win this case?"

Perception analyzers also make it possible to measure mock jurors' moment-to-moment reactions to a presentation. Mock jurors are often asked to continuously adjust their dials based on their reactions to a presentation they are watching, such as an opening statement, witness examination or closing argument. Using the perception analyzer's dial mechanism, mock jurors can intuitively adjust the dial as a presentation proceeds based on their contemporaneous reactions with "0" on the far left representing the most negative response, "50" in the center representing a neutral response and "100" on the far right representing the most positive response.

Perception analyzers generate a real-time graph based on the mock jurors' dial adjustments. Trial lawyers and their clients can watch the real-time graphs showing the jurors' reactions along with their physical expressions. The ability to visualize the live jurors while receiving the moment-to-moment results is important as it allows the legal team to correlate the quantitative results with their visual interpretations of the jurors' reactions (e.g., yawns indicating boredom, wide eyes showing disbelief or nodding heads in agreement) for a greater understanding of what case messages and strategies will most likely persuade a jury.

Perception analyzers, partnered with experienced jury consultants trained at drafting unbiased questionnaires, form a powerful means to effectively capture accurate information from mock jurors regarding their preexisting beliefs, attitudes and perceptions of a case. This valuable information can empower trial attorneys to craft a tested litigation strategy most likely to persuade a jury and lead to a positive litigation outcomes.

Special thanks to Kasey Herrera and Daniel Wolfe, J.D., Ph.D., for their contribution in writing this article. Ms. Herrera is the Kroll Ontrack/TrialGraphix Director of Research Technology specializing in developing and implementing technology to assist in jury research. She can be reached for questions or comments at kherrera@trialgraphix.com. Dr. Wolfe is the Director of Jury Consulting for Kroll Ontrack/TrialGraphix, where he provides research-based and experiential data analysis to trial teams nationwide and oversees the standards in practice of the jury consulting department. Dr. Wolfe can be reached for questions or comments at dwolfe@trialgraphix.com.

Litigation Minute: The Art & Science of Jury Research

The potential benefits of jury research extend far beyond jury selection during voir dire, where research on specific prospective jurors can be used to deselect jurors likely to be biased against a case. Jury research can also be used to empower litigators to develop an informed trial strategy tailored to the demographics of the jury that will be deciding the outcome of their case.

The following are common jury research techniques that trial attorneys should consider in preparation for trial:

• Prospective Juror Demographic Research. Research techniques such as phone surveys and focus groups can be used to learn about the preexisting beliefs and common experiences of people in the same venue as the jury pool for a specific case. This information can be used to craft trial arguments and present witnesses that will resonate well with the actual jurors.
• Mock Trials. Jury researchers can select surrogate jurors comprised of the same jury pool that will ultimately be deciding a case. The trial attorneys and witnesses can present arguments and testimony before the mock jury to test their effectiveness. For example, two different closing arguments presenting different theories of the case could be demonstrated to the mock jury, and their respective persuasiveness could be measured using perception analyzers.
• Shadow Jury. A shadow jury is a group of people, preferably with similar demographics to the jury, who sit in a courtroom during the actual trial whenever the real jury is present. By interviewing the shadow jurors throughout the trial about their understanding of the case, their perceptions of arguments and their beliefs about how the case should be decided, trial teams can gain valuable "real-time" information to be used to evolve the case strategy during the trial itself.
• Post-Trial Jury Interviews. Post-trial juror interviews provide attorneys with a better understanding of the strengths and weaknesses of the trial that was just completed, giving insights that can be used for appeals or future trials.

Jury research is both an art and a science; effective jury research is based both on social sciences and experience, a set of skills not taught in law schools. No matter how seasoned a trial lawyer's intuition, jury research is by far the most reliable predictor of jury predispositions for use in both jury selection and the creation of trial strategies. In short, jury research can significantly increase the likelihood of success at trial.

News & Events

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This newsletter was written by Kelly Kubacki and Meridith Socha, Kroll Ontrack Law Clerks. Ms. Kubacki can be contacted by writing to kkubacki@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.