Oregon State Bar Bulletin — NOVEMBER 2011
Garbage In, Garbage Out:
Five Common Mistakes Made in Pre-trial Research
By Jonathan M. Lytle

Two teams of attorneys, one defense and one plaintiff, independently conducted their own focus groups and brought their results to the mediation table. In both groups, the majority of participants found the defendant negligent. However, the plaintiff-run focus group awarded damages that were 20 times larger than the defense-run focus group! Given that all participants heard about the same case, how can this be? Which results are “true” and reflect what the actual jury will decide? The answer, most likely, is neither.

Two common types of small-group, pre-trial research are focus groups and mock trials. Although focus groups and mock trials have many similarities, focus groups are generally shorter in duration and less complex in scope than mock trials. Focus group research involves brief presentations of a case to a panel of surrogate jurors. The presentations can be tailored to focus on a few specific themes, facts, key witnesses, demonstratives or arguments. In contrast, mock trials usually involve more extensive presentations of the case, including key testimony, exhibits, demonstrative evidence and arguments to the surrogate jurors.

The purpose of pre-trial research is to discover the range of attitudes, beliefs and experiences that jurors will bring with them into the courtroom. By studying a representative group’s response to a case, attorneys are able to understand the underlying emotional and psychological motivations of potential jurors. Often, critical viewpoints or reactions that would not otherwise have been anticipated by the trial team are identified during pre-trial research projects. In understanding these motivations, a trial team is better prepared to address and plan for how a jury will absorb the information presented at trial.

Yet, small-group, pre-trial research is only as effective as the way it’s conducted. Unfortunately, many attorneys do not utilize trial consultants who are trained in the methodologies that ensure quality results. Attorneys who carry out their own research may save on expenses, but will surely sacrifice quality information in the process. Here are five common mistakes made in pre-trial research.

Mistake #1: You try to “win”
A focus group or mock trial should never be about “winning.” Ultimately, the goal is to test the worst case scenario for your case. Failure to give equal or more weight to the opposition is foolish and counterproductive. For instance, if you are representing the defense, then participants need to hear a plaintiff rebuttal. If you are representing the plaintiff, and he or she does not present well, then participants need to see that.

Unfortunately, most attorneys are so focused on preparing to “win” during the actual trial that they fail to recognize the ways in which they tilt the scales in their favor when they conduct their own research. Psychologist Robert Rosenthal demonstrated the effect of experimenter expectations in a number of influential studies in the 1960s, including one in which teachers were told that a particular group of students had a higher likelihood to achieve than another group of students. In reality, the groups were made up of a random assortment of students. At the end of the school year, the “high achievers” scored significantly better on a standardized performance test. The teachers’ expectations of high performance actually led to high performance.

What is most interesting about expectation effects is that they occur at a subconscious level. This is why strong methodology employs objective, third-party experimenters to conduct the research. Focus groups and mock trials should strive for that same objectivity.

Mistake #2: You fail to gather data during the presentations
During the focus group or mock trial, there are many opportunities for incremental data gathering. Between presentations, for example, participants are able to give you a wealth of information about what they have heard so far, both about their general attitudes and about specifics of the case. Unless you ask for that information, useful data will remain undiscovered.

Good research uses a diverse methodology to gather this data, including closed and open-ended questions, along with Likert and Semantic Differential scales. Furthermore, survey items and questions must be carefully written and ordered so as to not elicit biased responses. Asking participants about the weaknesses of a presentation immediately before asking which side is “winning” will result in drastically different responses than had you asked about the strengths of the presentation.

Mistake #3: You fail to let the participants deliberate
Even in small focus groups, participants should be allowed to discuss the evidence and attempt to reach a consensus verdict before a facilitator joins the discussion. Observing an uninterrupted deliberation is often the most useful benefit of small-group research, as it gives attorneys a view of how jurors may process the case information. For deliberations to be most authentic, attorneys working the case and trial team members who presented the case should leave the room during the discussion. An objective facilitator, such as a trial consultant, should remain in the room with the deliberating group to ensure that misinformation about the case does not derail the discussion. Attorneys can view deliberations via closed-circuit video or from behind a one-way mirror.

Mistake #4: You have too many participants in one group
Just because the actual jury will have 12 members does not necessarily mean your research groups should have 12 members. In fact, not only are smaller groups more cost-effective, but research also shows that participants are more involved and more candid in smaller groups. For focus groups and for mock trials, a group of five to nine participants is ideal. If you recruit 24 participants, divide them into three groups of eight instead of two groups of 12 for better results.

Mistake #5: You assume the results are predictive
The most well-controlled, well-conducted small-group research projects can yield different results with any given group of people. Of course, this occurs because individuals are unique, have different experiences and attitudes, and are often unpredictable. Small-group research results should be taken for what they are: a look into how everyday people may view the case. As your sample size increases, you can reasonably increase your confidence in the results. But even if you “win” your case with 10 different groups of participants, do not assume that the next group (your actual jury) will see things the same way.

In sum, the results of pre-trial research can help you revise your opening statement and evidence presentation strategies in critical ways. Some of the useful information focus groups and mock trials may reveal are:

Participant’s baseline attitudes and beliefs.

Participant’s perspective of case strengths and weaknesses.

Specific issues and problems central to the case.

A detailed range of responses that may be expected in trial.

The impact of specific themes and order of evidence.

Analysis of the issues and factors that resonated with jurors and influenced their decisions.

The persuasive impact of witnesses.

The persuasive impact of exhibits, demonstrative evidence and presentation technologies.

Strategic themes that provide jurors with the organization structure which will optimize the probability of a favorable verdict.

Computer programmers and statisticians often talk about “garbage in, garbage out.” Poorly conducted pre-trial research, like bad data input into a computer, will produce erroneous results. In the current economy, many attorneys are conducting their own research to pinch pennies. However, these results are often tainted by one or more methodological errors. Avoiding these common pitfalls is one of many benefits a trial consultant can bring to you and your team.

Jonathan M. Lytle, Ph.D., is a trial consultant at Prolumina, a litigation and trial support firm in Seattle. He can be reached at (206) 622-6700 or jlytle@prolumina.net

© 2011 Jonathan M. Lytle

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