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Articles Table of Contents
A version of this article first appeared in Leader's Product Liability Law and Strategy.
The
Latest High-Tech Advances in Litigation Research:
An Overview for Product Liability Practitioners
by Amy Singer, Ph.D.
Editor's Note: Numerous new high-tech tools are now available for the product liability practitioner to help plan, prepare, and present his or her case - video display equipment, live testimony of witnesses via satellite, notebook computers to organize presentations, digital cameras, e-filings, and more. Some computer-based products and services popular with attorneys include Lexis-Nexis and WestLaw for legal research,[1] Microsoft's PowerPoint for presentations, Doar's ANIX Litigation Suite for adding animation to electronic graphics, LawPro for case management, and LiveNote for real-time court transcriptions. And this is just the tip of the high-tech iceberg: there are hundreds of other glitzy new products and services available to help the product liability practitioner do his or her job more efficiently than ever before.
Just as the army general must possess expert knowledge regarding the specific capabilities of the exotic weaponry at his command, the product liability practitioner must likewise be fully conversant regarding the various components available in his or her high-tech litigation arsenal. The following article by trial consultant Dr. Amy Singer discusses the latest high-tech advances in litigation research, and the accompanying benefits for product liability practitioners.
Like all able trial lawyers the product liability practitioner must be a master of many arts and disciplines to be effective in court - case planning and preparation, juror evaluation and de-selection, courtroom oratory, relevant law and procedures, trial strategy, witness examination, and so on. But in our glittering, new high-tech age the product liability practitioner must also be knowledgeable regarding the latest advances in demonstrative evidence display equipment, multimedia presentation software, automated litigation support programs, and the like.
In this regard exciting new electronic systems incorporating sophisticated video cameras and related technology are radically altering the way attorneys present their cases to jurors - and for good reason. Just like everyone else in today's video-oriented world, jurors prefer (indeed, depend) on images - and in particular on TV and film - to remain current regarding what takes place around them. Attorneys who structure their case presentations accordingly enjoy an outsize advantage over trial opponents who rely on more conventional (read: boring) methods to communicate with jurors.
Consider this scenario: one litigator trots out tiresome charts and ho-hum graphs to introduce the product liability case to jurors; the other incorporates stunning animations and evocative videos, along with the latest CD-ROM/laser scanning technology to summon up key evidence on courtroom monitors/screens at the blink of an eye. One drones on pedantically regarding inconsistencies in the opposing case; the other employs dramatic split-screen imagery to contrast video deposition testimony (product development engineer: "we took all necessary steps to ensure our product's safety") with damning documentary evidence (memo from product development engineer: "the recommended safety feature does not fall within budget parameters and therefore will not be included in final design"). There's an unforgettable image the jurors will surely feast on during deliberations!
Today an enormous array of glitzy new high-tech marvels are available to assist the trial attorney: video presenters, computer re-creations, digital animations, "continuous speech" voice-recognition systems, and much more. Litigation research - the scientific discipline devoted to the formal study of jurors and jury decision-making - has also benefited tremendously in recent years from technology development. Astute product liability practitioners should be knowledgeable concerning the latest technological advances in litigation research; and thus be able to specify these helpful new services to optimize their own trial planning and presentation activities. Following are some of litigation research's most intriguing new technological advances.
Gauging jurors' attitudes regarding expert witness testimony and other case specifics
The typical product liability trial is often described as a battle of expert witnesses. Indeed, victory in court many times comes down to a single key factor: the effectiveness of one side's expert witness(es) over another. It is crucial therefore that witness testimony be delivered in as convincing and credible a manner as possible. An excellent way to achieve this critical goal is to minutely and accurately determine how each individual aspect of a witness's performance comes across with surrogate jurors during jury focus group/simulation research. A special electronic measurement device (termed the "Opinionator" at our firm) enables this to be successfully accomplished.
This electronic apparatus instantaneously analyzes the surrogate jurors' responses to discrete portions of the witness's testimony. It is connected to a computer that organizes and analyzes the data and then displays it as an electronic overlay directly over the videotape of the specific trial presentation segment. (Moment-to-moment juror responses are recorded by dials the jurors rotate to register gradients of approval or disapproval.) Thanks to this instructive feedback the attorney can see precisely how the most minute aspects of the witness's testimony are being received by the jurors; and then request that he or she make any necessary adjustments to improve presentation content, style, and/or demeanor.
Besides witness testimony, the "Opinionator" enables the attorney to evaluate all other case presentation aspects - voir dire questioning, opening statement, closing argument, demonstrative evidence, and so on. This careful monitoring of the key aspects of the case presentation can be highly beneficial for the practitioner who specifies it.
In a typical vehicle roll-over case, for example, "Opinionator" findings might show that the plaintiff's attorney should carefully avoid use of the term "over-correction" in court. Testing indicates that this terminology works against the plaintiff, highlighting, and thus reinforcing, the notion that his action resulted in the roll-over. (The plaintiff, in effect, "owns" the negative phrasing.) But further "Opinionator" testing indicates that "steer-ability" and "steer-worthiness" are highly useful phrases for the plaintiff because these terms clearly pertain to the vehicle. (They are "owned" by the manufacturer). Armed with this valuable insight the plaintiff's attorney can then plan his or her trial presentation strategy accordingly.
Juror electronic monitoring
Taking the "Opinionator" approach one step further, electrogalvanic skin-response juror monitoring (similar to polygraph testing) can be used to measure the precise emotional impact on surrogate jurors regarding distinct portions of the trial. This electronic monitoring enables the attorney to accurately determine the jurors most primal responses to highly discrete portions of the overall trial presentation.[2]
Video conferencing
Few professionals are busier than product liability attorneys. Time spent organizing case research, taking depositions, reviewing mountains of discovery materials, preparing witnesses, filing motions, conducting pleadings, and related activities can place a tremendous burden on the overworked practitioner. Anything protecting his or her time thus becomes more valuable than gold. Videoconferencing of jury simulations/focus groups can be a terrific time saver, enabling the attorney to review these proceedings in real time from his or her office (or nearby video reception center). Travel time is largely eliminated, along with the accompanying costs involved.
Video conferencing's interactivity feature means that witnesses and attorneys can practice their own specific case presentations before surrogate jurors regardless of locale.[3] An expert witness in Kansas City and an attorney in St. Paul can easily interact with jurors in Fort Lauderdale in real time. All that's required to initiate the videoconferencing connection are one or two simple phone calls.[4]
Electronic retrieval of demonstrative evidence via CD-ROM
Numerous trial consulting firms provide technical advice and assistance regarding the newest developments in electronic case presentation.[5] One of the most exciting new techniques is the ability to combine CD-ROM technology, document management software, electronic bar-coding, and videography to instantaneously summon up evidence of all types on courtroom monitors and/or backlit video projection screens - documents, animations, photos, video depositions/clips, and computer re-creations. The attorney simply moves a laser scanning pen over a bar code that corresponds with a particular piece of evidence, and its image instantly appears on the appropriate viewing device(s) for the jurors to see.
Video monitoring/recording of surrogate jury research
Videorecording surrogate jury sessions provides an invaluable record of juror responses to the overall case presentation and its various components. Split screen technology lets the practitioner see precisely how jurors react as he or she makes a particular point; or as an expert witness discusses a technical point in contention.
Trial consulting firms produce multiple videotape copies of all surrogate jury activities which are provided to the attorney[6] upon conclusion of the research session(s). The attorney, along with the other members of the trial team, can thus fully benefit from the litigation intelligence developed.[7]
New database developments
Utilizing the awesome processing power of today's super fast computers, along with sophisticated data management software, specific surrogate juror responses regarding every minute aspect of a comprehensive collection of product liability cases can now be digitally logged and entered into databases for later use by attorneys involved with similar litigation disputes.
To illustrate, our firm has developed a massive, automated database - termed Trial Run - comprised of hundreds of thousands of specific surrogate juror responses, opinions, and deliberative commentary regarding individual aspects of every conceivable type of civil case. [8] Attorneys can specify and receive selected information concerning arguments and evidence/testimony, along with the appropriate jurors' reactions, that is
ideally suited to help them with specific cases similar to those in the database.[9]
Let's say the practitioner is involved in a products liability case concerning the lead poisoning of a young child. He or she can request a specialized report that details precisely what a substantial number of individuals thought and felt during litigation-psychology research sessions targeting, for example, the landlord's responsibility regarding the lead poisoning of children as a specific trial issue.
Utilizing artificial intelligence, our specialized software retrieves the most uniform juror responses from the database concerning the particular lead poisoning case, along with information concerning the likely pivotal point for such a trial, the ideal trial theme to employ, the best voir dire questions to use to uncover bias among jurors, and other valuable information.
Use of the Internet for case testing
The Internet, the dazzling new medium that is revolutionizing communications and high-speed data transfer, offers intriguing jury research capabilities as well. For example, my firm is now involved in the initial steps of a joint venture to develop a methodology to test issues and arguments regarding specific cases over the Internet. This research will enable the attorney to instantly poll thousands of test subjects regarding his or her case on a scientifically controlled and highly economical basis. We plan to have three secure interactive web-site locations: one for "case solving," one for issues analysis, and one that will examine opinions regarding specific trial issues.
Such litigation research will provide the attorney with a tremendous competitive advantage, particularly at settlement time. Positive cyberspace testing results - e.g., 15,000+ individuals electronically interviewed over the Internet believe your individual product liability case has strong merit - cannot be easily dismissed by the other side.
Fascinating developments to come
The pace of scientific advance continues briskly, with numerous high-tech developments just around the corner for litigators, including virtual reality presentations that place jurors directly in the middle of a computer-generated re-creation of a vehicle collision, increasingly robust yet easy to use animation programs with production values rivaling Disney films, even virtual trials where the participants log in electronically from the furthest reaches of the globe. And you can be sure that the field of trial consulting/litigation research will continue to stay abreast of this amazing technological change, providing litigators with increasingly powerful tools and techniques to help them win cases.
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Amy Singer, Ph.D., trial consultant, is a nationally recognized authority in the field of litigation psychology, and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. Dr. Singer is the founder and president of Trial Consultants Inc. (jury research and trial preparation), Litigation Consultants Inc. (a litigation think tank) and the Institute for Settlement Sciences (settlement intelligence services), all headquartered in Fort Lauderdale, Florida. Telephone: (954) 370-1973. Mail: JuryDoctor@aol.com.
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