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A version of this article first appeared in Florida Trial Lawyers Journal.

Litigation Intelligence Surveys:
Invaluable Strategic Case Mapping & Settlement Tool

by Amy Singer, Ph.D.

Resourceful attorneys are discovering a valuable but heretofore underutilized new tool to help them prepare and win their cases - the "litigation intelligence" survey. Similar to market research surveys companies use to predict and gauge consumer preferences, litigation intelligence surveys help determine how jurors will relate to the case's pivotal point, along with other critical issues, i.e., the facts, disputes, and arguments.

It is a commonplace that jurors have a tendency to perceive the facts, disputes, and arguments of the case differently; that they have a propensity to judge one way or the other without ever hearing any arguments or testimony or evaluating any evidence; and that they can be swayed to a particular verdict by powerful argument. To win in court (or to successfully settle) it is important, therefore, to predetermine, as precisely as possible:

• How the jurors will perceive the facts;
• What the jurors' psychological propensities towards the evidence will be; and
• Which courtroom presentation strategy and arguments will most influence the jurors.

Litigation intelligence surveys help attorneys answer these vital questions. Since jurors have a tendency to react to, and to analyze, the facts, disputes, and arguments differently, litigation intelligence surveys help determine the ideal juror types for a particular case. Such surveys are conducted among a large number of people to get the most reliable readings regarding what jurors will think and feel about the case. (An accuracy rating of 5% can be established statistically if 400 or more people are surveyed.)

Juror/jury verdict behavior is to a large degree a psychological phenomenon. To accurately predict jury behavior with the highest degree of possible certitude, it is worthwhile to understand psychology and how it can be used to help decipher the minds of jurors at trial time.

Jurors' perceptions/misperceptions

Peoples' perceptions are freighted heavily with accompanying associations. When the word "dog" is mentioned, for example, one person immediately thinks of a sweet little poodle; another of a vicious rottweiler. Misperceptions occur when individuals illogically carry such associations over to facts, situations, and events for which they clearly are not warranted. Such misperceptions are very likely to occur in the courtroom where the issues to be resolved can be quite complex and confusing. So it is vital during case planning for the attorney to be able to anticipate how some jurors may automatically misperceive the facts, disputes, and arguments of the case.

Jurors' psychological propensities

Many jurors bring heavy emotional "baggage" with them to the courtroom. As a result they will be psychologically inclined to favor one side or the other before learning anything at all about the case or its particulars. This fact has enormous ramifications for the attorney who must plan his or her case accordingly.

Persuasive arguments

An argument to the attorney is what a hammer is to a carpenter. A poor hammer means no building for the carpenter; a poor argument for the lawyer often means a courtroom loss. It is critical therefore for the attorney to pre-test his or her arguments prior to trial.

Monitoring and measurement through surveys

Litigation intelligence surveys monitor and measure the probable perceptions and propensities of jurors, along with the persuasiveness of arguments, on a psychometric basis prior to the actual trial. Additionally, litigation intelligence surveys pinpoint those aspects of the case that provide the attorney with the most promising opportunities to successfully sway jurors to the desired point of view; along with those case aspects which should be de-emphasized. They efficiently streamline discovery by steering the attorney away from non-productive areas. They are useful for complex cases where juror attitudes concerning a wide range of issues must be determined; and for unusual cases where it is difficult to predict how jurors will react.

Ideal for settlement purposes

Litigation intelligence surveys demonstrate to all concerned precisely how much a case truly is worth. If survey results indicate with a 95% confidence factor that 87% of 400 or more potential jurors scientifically polled believe the true value of a particular case to be $5 million dollars, this finding will be far more credible to an arbitrator than the self-serving estimates of opposing counsel. When properly utilized, litigation intelligence surveys can literally mean the difference of millions of dollars at settlement time.

Litigation intelligence surveys vis-â-vis focus groups

Litigation intelligence surveys should be used in tandem with, and not in place of, focus groups. (Focus groups are jury research studies in which six to 12 surrogate jurors jointly assess the problem areas of the case; afterwards, the litigation psychologist develops creative solutions regarding these problems.) Focus groups provide far more in-depth findings than do litigation intelligence surveys; but they do not provide the breadth of useful information that detailed surveys can reveal.

Costs and other factors

Litigation intelligence surveys cost from $5,000 to $50,000, with $15,000 representing the average expense. Costs vary depending on the number of people surveyed, the comprehensiveness of the questions, and the methodology employed. Litigation intelligence surveys should be conducted as early as possible in the trial planning process. This helps make the discovery process more efficient, while helping with overall case strategizing.

Attorneys should use litigation research firms with statistical expertise and backgrounds in social/behavioral psychology to conduct litigation intelligence surveys. Such firms are professionally equipped to determine how the case's primary issues will correlate with the jurors' "value beliefs" - i.e., the individual jurors' predispositions, opinions, and attitudes. This is an absolutely vital consideration. Numerous studies indicate that it is jurors' value beliefs - and not demographics - that comprise the only factor proven to be predictive of verdict behavior.

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Amy Singer, Ph.D., 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 decision-making processes. Dr. Singer is the founder and president of The Singer Group, headquartered in Miami and with offices across the country. The Singer Group is comprised of Trial Consultants, Inc.^® (jury research and trial preparation); Litigation Consultants, Inc. (case strategic planning and mapping); Trial Communications, Inc. (providing attorneys with specialized services such as "1-800-A-JURY-DR" and "Dial-A-Jury Reaction"), Port-O-Court, Inc. (the world's only fully equipped floating mock courtroom), and The Institute for Settlement Sciences, Inc. (settlement intelligence services). Dr. Singer is the co-author, along with Texas trial attorney Pat Maloney, of Trials and Deliberations: Inside the Jury Room, published by Shephard's/McGraw-Hill, Inc. Her articles on jury and trial matters are a regular feature of the legal and business media. Additionally, Dr. Singer is called upon on a routine basis by the national broadcast media to provide informed courtroom commentary regarding prominent trials. Dr. Singer frequently lectures on jury and trial matters before numerous professional organizations across the country.