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A version of this article first appeared in Personal Injury Verdict Reviews.

Litigation Intelligence Surveys

by Amy Singer, Ph.D.

Jury focus groups and jury simulations are not the only litigation research tools attorneys can use to determine what jurors will think and feel about their cases. Another worthwhile aid is the litigation intelligence survey (LIS). Such pre-trial polling provides an accurate picture of the key issues that will be most important to jurors concerning a particular case, along with highly detailed information concerning how jurors will regard these issues. The LIS is useful for strategic case planning and also for settlements.

The LIS parallels market research surveys businesses employ to determine product preferences among consumers. But instead of polling respondents regarding their partiality to a specific toothpaste brand, the LIS shows how potential jurors in the venue polled will relate to the case's key facts, disputes, and arguments. Along this line, the LIS can indicate how the jurors will perceive the facts of the case; determine the jurors' psychological propensities towards the evidence; and find out which arguments jurors will find the most persuasive.

The LIS is always conducted among the largest possible number of people in the venue to record the most reliable readings about probable juror attitudes regarding the case. An accuracy rating of 5% can be established if 400 or more people comprise the polled statistical sample.

Juror perceptions/misperceptions

Given a specific set of facts in a case - Mr. Smith's car crashed through the highway barrier, rolled down the hill, and burst into flames - a dozen jurors will each interpret what happened differently. This difference of opinion also applies regarding particular issues associated with the facts - was Mr. Smith inebriated? - along with arguments made about the facts - Mr. Smith wasn't at fault; his brakes were defective.

Some jurors will accurately perceive the facts, issues, and arguments of the case while others will misperceive these same case elements. Indeed, misperceptions are highly likely to occur in the courtroom where the facts, issues, and arguments to be resolved are not only contradictory, but also often complex and confusing. It is therefore essential during case planning that the attorney be able to anticipate how some jurors may automatically misperceive the facts, disputes, and arguments of the case due to their particular psychological propensities.

LIS accurately gauges key case planning criteria

The LIS helps precisely scale probable juror perceptions/misperceptions to the key case issues, along with the psychological propensities of potential jurors regarding these issues; and it measures the persuasiveness of arguments, on a psychometric basis, before the actual trial.

Just as valuable, the LIS can show what a case truly is worth, and with maximum credibility. If survey results indicate with a 91% confidence factor that 88% of a statistically valid sample of potential jurors scientifically polled believe the value of a particular case to be $3.5 million dollars, this finding will almost always carry substantial weight with an arbitrator.

Planning, usage, and costs

The LIS should be used with and not in place of jury focus groups/simulations. These litigation research activities provide more in-depth findings than does the LIS; but not the breadth of information the LIS can disclose.

An LIS costs from $5,000 to $50,000, with $15,000 representing the typical expense. The LIS should be conducted early during trial planning. This helps to streamline discovery and for overall case strategizing.

Litigation research firms with statistical savvy and psychology training should be used to plan and conduct litigation intelligence surveys. Such firms understand how a case's primary issues correlate with the jurors' "value beliefs" - i.e., their basic opinions and attitudes. This is vital. Numerous studies indicate it is jurors' value beliefs - not demographics - that most significantly relate with verdict behavior.

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Amy Singer, Ph.D., litigation psychologist and trial consultant, is founder and president of Trial Consultants (jury research and trial preparation), Litigation Consultants (America's first "litigation think tank"), and The Institute for Settlement Sciences (settlement intelligence services), all based in Fort Lauderdale.