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A version of this article first appeared in Leader's Product Liability Law & Strategy.

Litigation Intelligence Surveys:
Essential for Large Products Liability Trials

by Amy Singer, Ph.D.

What is the one tool available to litigators which enables them to determine with reliable accuracy the case's key issues and facts and what jurors will think and feel about them; provides the most appropriate de-selection map by juror profile, along with the optimum de-selection strategy; greatly streamlines discovery; spotlights those aspects of the case which provide the best opportunity to successfully sway jurors; helps hone courtroom arguments with precision and confidence; and can be used to develop scientifically valid information regarding potential jurors' primary attitudes regarding the case - i.e., objective and irrefutable data which will permit the strongest possible settlement position? The answer is the litigation intelligence survey - an absolute must for any products liability trial where the verdict could run into the millions of dollars.

Similar to commercial marketing surveys and public opinion polling, the litigation intelligence survey represents an elaborately planned, carefully controlled, and expertly evaluated scientific study of the inhabitants of the jurisdiction where the trial is to be held. But instead of asking about their preferences regarding toothpaste, automobiles, or political candidates, litigation intelligence surveys investigate the individuals' opinions and attitudes concerning the facts, issues, and arguments regarding a potential or actual legal dispute.

A primary advantage of litigation intelligence surveys is that they enable attorneys to unerringly monitor the probable perceptions of jurors regarding the primary case issues, along with their emotional propensities to these case elements. This is handled on a psychometric basis - i.e., the scientific methodology used to quantify subjective mental data.

Jury verdict behavior is a psychological phenomenon. Jurors enter the courtroom with emotional baggage that automatically predisposes them to favor one side or the other. Litigation intelligence surveys enable the attorney to accurately pinpoint those case aspects to which jurors will be psychologically pre-disposed to respond most favorably, along with those that must be de-emphasized. Surveys help the attorney determine which of the jurors' psychological "hot buttons" he or she should plan to push, along with those to avoid.

This type of information can be extremely useful in any large products liability case. To illustrate, let's assume polling conducted by the defense in such a case regarding two "Generation X" plaintiffs involved in an auto crash shows that: 1) 78 percent of those polled feel a strong emotional attachment to the auto manufacturer in question, who has long maintained a large plant in the area; however 2) 49 percent believe the company can "do more" for the community, and 3) 38 percent think the company "does not offer enough jobs"; 4) only 24 percent believe the auto manufacturer places a higher emphasis on profits than on safety, but 5) 90 percent of the 24 percent who responded affirmatively to the "profits over safety" question agree with this philosophy.

These data present the defense with targeted information that can be put to effective use in a number of different and beneficial ways - e.g., as a possible overall strategic approach to adopt in the courtroom (emphasize the manufacturer's strong ties to the community); and for voir dire questioning (to smoke out negative panelists who may be prejudiced against the manufacturer regarding the "jobs" and "doing more for the community" issues; and by providing the invaluable insight that the attorney doesn't need to "inoculate" panelists regarding the "profits over safety" issue, since more than three-quarters of the people living in the jurisdiction do not believe this attitude applies to the manufacturer; and of those who do, nine out of ten feel profits should weigh more heavily than safety anyway!).

More than any other litigation research methodology, litigation intelligence surveys provide the attorney with the most accurate barometer of local community attitudes regarding his or her case. It is true community attitudes can also be determined through another worthwhile research tool - jury focus groups. These are excellent for providing in-depth information regarding how potential jurors will think and feel about the case; but they cannot supply the comprehensive breadth of information which enumerated litigation intelligence surveys can uncover.

A clear advantage of the litigation intelligence survey is the use of survey results as a basis to successfully petition the court for change of venue. Such polling can detail with accuracy the extent of prejudicial attitudes that may exist within the jurisdiction against the client and, possibly, his or her product line. Additionally, litigation intelligence surveys can assess the exposure to, and the effect on, potential jurors regarding inflammatory pre-trial publicity directed against the client. They can also establish the likelihood of being able to seat an impartial jury in a different jurisdiction.

The litigation intelligence survey is the attorney's most formidable settlement weapon by far - it is able to precisely and objectively determine what a case is truly worth. The litigator can feel confident that a scientifically valid polling of the jurisdiction exhibiting clearly positive results regarding his or her case will weigh heavily with the opposition and with a professional arbitrator or mediation panel. For example, let's assume polling results by the plaintiff in a products liability trial regarding a defective toaster indicate that - given the facts of the case - 89 percent of prospective jurors in the jurisdiction agree that a $4 million award is reasonable; and that these results can be verified with a 95 percent confidence interval, i.e., within a possible error rate of plus or minus 5 percent. With impressive and scientifically valid survey results such as these, evaluation by the defense of the plaintiff's suggested settlement amount of, say, $3.5 million boils down to a simple yet inescapable exercise in cost/benefit analysis.

Another advantage: the hard-headed client determined to proceed to trial despite counsel regarding the likelihood of a negative verdict will have to think twice about his or her foolhardy position due to strongly negative polling results.

So how and when should litigation intelligence surveys be employed, and do they take the place of other litigation research activities such as jury focus groups? Litigation intelligence surveys are useful for any large multi-million dollar case such as a products liability dispute; for complex and/or unpredictable cases; and for any large case in which the ultimate goal is to settle.

Litigation intelligence surveys do not take the place of jury focus groups and jury simulations but are designed to work in conjunction with these other research activities. Focus groups are conducted first to pre-determine what jurors will think and feel about the primary case facts, issues, and arguments. Findings are then used to develop a broad range of targeted survey questions that will provide the most comprehensive profile of probable juror opinions and attitudes regarding the case and its key elements.

Regarding timing, polling should be conducted early in the trial planning process. This can aid in streamlining discovery by spotlighting those areas of the case that will be of most concern to the jurors, while eliminating those that are least important. Also surveys organized early provide reliable data regarding probable juror attitudes and opinions that can be essential in planning overall case strategy.

A litigation intelligence survey is normally conducted in two parts: first, a pilot study known as a "core belief survey" is taken among 30-50 individuals who reside within the jurisdiction. This grouping should represent a diverse mix of individuals who are bright and highly verbal. Survey questions are open-ended - e.g., "What do you think about.....?" The purpose of the pilot study/"core belief survey" is to develop as wide a universe of responses as possible. These responses are then evaluated on a "response analysis" basis (similar to decision analysis but involving a "response tree" instead of a "decision tree"), to determine the most targeted and effective questions to include in the second follow-up survey.

The follow-up survey is then conducted among a far larger random grouping within the jurisdiction. At least 400 people must be polled to assure that survey results will fall within a statistically acceptable accuracy rating of plus or minus 5 percentage points. Once survey results are analyzed and evaluated, the most appropriate findings are then tested through additional jury focus groups and jury simulations to determine what will work best in the courtroom.

Litigation intelligence surveys are complex social science experiments that must be organized on a completely professional basis to achieve meaningful results. Primary survey components include sample design, questionnaire construction, interviewing methodology, plus survey presentation, analysis, and interpretation. If each of these is not expertly and/or adroitly handled, survey results are likely to be flawed - and may end up pointing the attorney in the wrong direction regarding the planning of case strategy.

Costs for litigation intelligence surveys range from $5,000 to $50,000, with $15,000 representing the typical expense (covers both the pilot study/"core belief survey" and the larger main survey). Costs vary according to the number of people surveyed, the methodology employed, the comprehensiveness of questions asked (and results analyzed), and similar factors. Litigation intelligence surveys normally take from take two weeks to a little over a month to plan and complete, which includes the tabulation, evaluation, and interpretation of data, along with the presentation of results.

Everyday market research firms are out of their depth when it comes to planning, conducting, and evaluating litigation research surveys regarding trial disputes, juror/jury psychology, courtroom presentation tactics, and related topics. These complex areas require a professional skills set that is outside of the normal area of market research. Only firms expert in litigation research, trial consulting, voir dire planning, pre-trial polling, and statistical analysis are able to competently handle litigation intelligence surveys.

Music lovers who attend Puccini's "Madama Butterfly" don't expect or want to hear a Guns 'n Roses Heavy Metal concert instead. Jurors are no different than concert-goers. Most enter the courtroom with pre-formed attitudes and opinions regarding what they expect the case to be about - before hearing or seeing any evidence or listening to any arguments. It is critical therefore that the attorney know precisely how these predilections and prejudices will affect his or her presentation of the case - and plan accordingly. The litigation intelligence survey is an excellent tool to carry this out most effectively.