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A version of this article first appeared in TRIAL magazine.

Successfully Settling the Case Through Surveys

Get what you ask for by proving in advance the jury's on your side

by Amy Singer, Ph.D.

Cases settle when both sides are in basic agreement regarding what a jury will do. In this regard it's much easier to successfully settle a case if you can present reliable data projecting that if the case goes to trial: 1) the jury will be with you and your client and 2) your settlement offer will be less onerous to the opposition than the probable judgment the jury will make.

Imagine, if you will, a magic case settlement tool that can accurately develop such compelling data - i.e., one that enables the attorney to test the case prior to entering the courtroom to determine, within an acceptable scientific standard, what the potential jurors will think and feel about the key facts, issues, and disputes of the case, and what their primary psychological (prejudicial) inclinations to the case will be.

Such a marvelous settlement aid should also illustrate what potential jurors expect to see and hear during a particular case, thus enabling the attorney to plan his or her case accordingly. (It serves no purpose to stage an opera if people think they will be attending a rock 'n roll concert.) It should be able to correctly measure the persuasiveness of the arguments and show which aspects of the case to emphasize along with those to avoid. Plus, it should be able to correctly pinpoint the value of the case.

The litigation intelligence survey

Many trial attorneys may not be aware of it, but such a versatile case planning and settlement tool does exist. It is being used in major trials with great success and also (and even more widely) to successfully settle cases prior to trial. This special tool is the litigation intelligence survey,[1] a precise and highly-focused polling of the jurisdiction in which the case will be tried. Such a scientifically-conducted poll can determine within plus or minus 5 percent - i.e., with a 95 percent confidence interval - precisely how the potential jurors in a particular venue will regard the facts and issues of the case, along with the arguments made concerning it. Such findings carry substantial weight with all parties at settlement time.

Precision litigation research

The litigation intelligence survey represents a carefully planned, rigorously controlled, and professionally evaluated scientific study of the jurisdiction's population. Data derived scrupulously delineate the facts, issues, disputes, and arguments germane to a potential or actual legal dispute, and how the jurisdiction will relate to them. Litigation intelligence surveys are similar to market research surveys and public opinion and political polls, but with important differences detailed later. They are normally conducted by professional firms expert in litigation research.

Valid results

To achieve scientific validity, a litigation intelligence survey must, among other factors, be based on a statistically accurate sample of the jurisdiction, i.e., at least 400 individuals, who are selected on a random, not a demographic, basis. The polling normally is conducted over the phone, during personal interviews, through written questionnaires, or by a combination of these methods. Results achieved can be extremely comprehensive, detailing how the respondents rate every minute aspect of the case or issue at hand.

Separate surveys, separate goals

Different litigation intelligence surveys are available to the attorney, depending on the particular research objective. These include the community attitude/opinion survey, which measures what people in the jurisdiction will think and feel about the issues concerning a general type of situation and/or dispute, legal or otherwise, that is currently affecting them or could do so in the future; the case-specific survey, which shows how the jurisdiction will relate to the issues, facts, and arguments regarding a particular or potential case; the change of venue survey, used to determine whether an impartial jury can be seated in the jurisdiction; the media impact survey, used widely for settlement purposes, which can predict the potential economic and/or other after-effects that a negative verdict can hold for one side or another if a particular dispute is not settled; or a combination of these versions.

Numerous benefits

Litigation intelligence surveys deliver highly specific information that can be of immeasurable aid to the attorney regarding a particular case. Benefits of these versatile surveys are summarized as follows:

Change of venue

To succeed with a motion for change of venue, the attorney must present competent proof that jurors' attitudes, opinions, feelings, and beliefs will be so fixed that a fair verdict is unlikely. The litigation intelligence survey can help establish these facts by determining exposure in the jurisdiction to specific sources of inflammatory pretrial characterization of the client, along with the degree of prejudgment and predisposition of potential jurors. It can assess the impact of the jury verdict on the community. It can also establish whether it will be possible to seat a fair jury in another venue.

Invaluable settlement aid

A primary benefit of litigation intelligence surveys is their value at settlement time. Consider the impact a statistically accurate - and positive - polling of the trial venue can have on the opposition, or a professional arbitrator or mediation panel. Conversely, an adverse poll can be influential with the recalcitrant and/or difficult client who, against counsel, is unwilling or unable to accept the probable likelihood of a negative verdict.

The litigation intelligence survey is the ideal settlement planning aid. It graphically illustrates the risks or benefits of going to trial in an objective and unbiased manner; determines the monetary value of the case; establishes the economic effects that a losing verdict will have on the opposition; and outlines juror perceptions and analyzes probabilities in the event the case goes to trial.

Unnerves the opposition during negotiations

Positive litigation intelligence survey results, representative of the jurisdiction in which the dispute will be settled if it goes to trial, can have a decidedly unnerving (indeed, chilling) effect on the opposition during negotiations. It is difficult, for example, to offer a viable rejoinder to the presentation of scientifically-valid survey results demonstrating with a 95 percent confidence interval, i.e., within a 5 percent plus or minus error rate, that 87 percent of potential jurors in the jurisdiction will award $5 million for a particular case. In such a situation, evaluating a settlement offer of, say, $3.5 million, becomes a simple exercise in cost/benefit analysis.

Media Impact Surveys

Media impact surveys are also valuable for settlements. In this type of research, simulated headlines are created to explore the results of a high-profile trial as they would probably be reported by the media. These headlines are then used to gauge reactions, along with pre-existing attitudes, among survey respondents. Survey results can predict the possible economic after-effects that a negative verdict holds for the opposition. Assessed in the initial stages of a case, these surveys supply critical ammunition that is instrumental in designing negotiation and settlement strategies. The McDonald's case comes to mind to illustrate the power of this type of research tool.

Perceptions, propensities, persuasiveness

As with all litigation research, litigation intelligence surveys focus on jurors' perceptions of the case and their emotional propensities to it, along with the capabilities of different arguments to persuade them. Survey findings can correctly identify and evaluate these key factors:

Used in tandem with focus groups and surrogate juries

Litigation intelligence surveys are not meant to replace jury focus groups, jury simulations, and similar research; they are used in conjunction with these activities. Jury focus groups and simulations function like a Rorschach test, illuminating jurors' cognitive and emotional processes. They are excellent for showing how jurors, as a group, will deliberate about the case issues and facts. And they provide the maximum in-depth information concerning how jurors will relate to the case emotionally and intellectually.

Unlike surveys, focus groups are able to uncover how the witness will be evaluated. As such, focus groups are very useful tools for deposition and trial preparations. Obviously, litigation intelligence surveys cannot tell how witnesses will be perceived; they can, however, be used to test the witness's "message."

Litigation intelligence surveys provide the widest possible breadth of information regarding how jurors will perceive the case. Most important, the litigation intelligence survey legitimates a particular settlement offer in a far more convincing fashion than a jury focus group or jury simulation possibly can.

It is best to conduct jury focus group and jury simulations first, and then follow up with the litigation intelligence survey.[4] By handling in this manner, special insights and other important information uncovered during jury focus group/simulation research can be used to develop the most intelligent survey questions and the best survey possible. This proactive approach to survey design is far superior to developing the survey from an ivory tower. Such a poorly-planned method often results in surveys of limited practical value or surveys that even mislead.

Survey planning: both art and science

Planning, conducting, analyzing, and interpreting a scientific survey represents much more than simply asking respondents questions, noting their answers, then correlating the results. Indeed, a survey's results can be worse than useless - i.e., point in the wrong direction - unless each step of the survey process is handled professionally by a trained and experienced survey expert.

These steps include collection (including setting up the proper procedures for selecting a relatively small but nevertheless statistically valid number of respondents), questionnaire construction (planning the choice of topics and the wording and order of questions), interviewing (methodology of submitting questions to those to be interviewed); and analysis (tabulation, treatment, interpretation, and reporting of data derived from the survey). Mishandling any single aspect in this complex mix can result in a fatally flawed survey. [5]

Not a marketing survey or public opinion poll

The survey process becomes even more challenging when it comes to litigation research surveys where the typical market researcher's tools are inadequate, and must be supplemented by professional experience and knowledge concerning the judiciary system, litigation disputes, juror and jury psychology, change of venue issues, settlement strategy, voir dire planning, and so on.

Many market research firms, with their strong backgrounds in demographic analysis,[6] often must work against their own professional instincts when it comes to litigation intelligence surveys. In this regard, they attempt to superimpose their expertise in determining lipstick, beer, and similar preferences among different demographic groups, a practice largely inappropriate for litigation intelligence survey research.

Value beliefs

Litigation research is concerned not with demographics but rather with jurors' value beliefs, i.e., the bedrock attitudes jurors use to filter the case's key facts, issues, and arguments in order to reach a verdict. Jury research indicates that it is value beliefs, not demographics, that correlate with how individual jurors will actually behave when deciding a case.[7]

Law firms are strongly advised against attempting to conduct their own surveys, or turning the survey project over to a market research firm without specialized training and experience in litigation research.[8]

Use and timing

Litigation intelligence surveys are excellent for use in major cases of tremendous complexity, for atypical cases where the outcome is unpredictable, in cases where strategic planning is crucial or where a starting point is not clear, and for any large case in which the plan is to settle. In terms of timing, attorneys should plan on initiating their litigation research - i.e., jury focus groups, jury simulations, and litigation intelligence surveys - at the earliest possible opportunity in the case preparation process, and certainly prior to planning discovery.[9] The valuable findings that derive from a survey that is conducted early can help direct the attorney away from wasteful areas during discovery, thus saving time and money.

Expenses

The cost of litigation intelligence surveys range from $5,000 to $50,000, with $15,000 representing the typical expense. When you consider that litigation intelligence surveys can mean the difference in millions of dollars during settlements; play a critical factor in perspicuous case planning for major trials; and greatly reduce the heavy costs associated with discovery, the survey expenses described above are cost-efficient, particularly when measured against the scope of the entire case budget.

Singularly invaluable intelligence

Planning, preparing, conducting, or settling a major case can be like playing three-dimensional chess against the clock. In such a pressured and high-stakes contest it is critical that the attorney be armed with the best available intelligence regarding how the jury will think and act. The litigation intelligence survey helps provide such worthwhile information.

The attorney who fails to benefit from this insightful data, either to conduct or to settle the case, is flying in a fog without compass and map. And that's no way to reach the proper destination, whether it be a successful settlement or a favorable trial verdict.

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[1] The litigation intelligence survey, along with jury focus groups, jury simulations, simul-juries, and similar activities comprise the basic tools of litigation research. Practitioners in this rapidly expanding field develop the most reliable jury-validated information and intelligence available regarding jurors for particular cases - who they are, what they believe, and what will influence them as they deliberate to reach their verdicts.
[2] Psychometrics involves the use of quantitative devices for assessing mental data such as psychological or emotional attitudes, normally measured on a qualitative basis.
[3] Discovery is the most expensive aspect of litigation today, according to The Wall Street Journal. See "Discovering a Cure for Discovery Abuse," by Max Boot, deputy features editor, published on November 20, 1996 (page A23).
[4] Two separate series of focus groups/simulations should be conducted for major trials. The first series is performed at the beginning of case planning and discovery, followed by the litigation intelligence survey. The second series is performed immediately before trial, so as to benefit from the information uncovered during discovery.
[5] Numerous discrete yet highly critical elements go into making up a professional survey. Each must be handled professionally for the survey to be valid and achieve meaningful results. To illustrate, proper question wording is critical to a successful survey. In this regard, recent research indicates that in the case of questions involving comparative judgments - e.g., "Is tennis more exciting than soccer or less exciting?" - the direction of comparison elicited by the wording of the question (i.e., comparing tennis to soccer instead of soccer to tennis) can have a decided impact on the obtained results. The individual and/or firm planning, administering, evaluating, and interpreting a litigation intelligence survey must be knowledgeable concerning a wide variety of similar highly abstruse details and technical considerations. (See "Asking Comparative Questions: The Impact of the Direction of Comparison," by Michaela Wanke, Norbert Schwarz and Elisabeth Noelle-Neumann, Public Opinion Quarterly, Fall 1995 [v.59 p347(26)].)
[6] Determining product and other preferences according to age, sex, gender, ethnic background, and similar factors.
[7] Jury research indicates that demographics often prove to be least predictive of verdicts and jury behavior. No one ever heard a juror interviewed after a trial state that she reached her verdict because she was "a divorced Episcopalian mother of three living in the suburbs"; instead, the juror's reasons are always couched in such phrases as "I thought," or "I felt," clear indicators pointing to that person's basic value beliefs.
[8]In addition to selecting the right firm, the attorney should also investigate the credentials of the research director who will plan, administer, and evaluate the survey. The value of litigation intelligence surveys and their consequent recommendations depend, more than any other single factor, on the experience, expertise, and professional savvy of the research director who plans and conducts the survey. He or she is like a master chef, using sophisticated cooking techniques, a hardware of pots and pans, a wide variety of food ingredients, and D-Day timing to produce a 4-star feast. But if the chef mishandles even one small aspect of this elaborate food preparation and cooking process, the meal falls flat. In this regard, the litigation intelligence survey is even more complex and demanding in its planning and preparation than a great banquet, and with far more at stake. Like the chef with his or her feast, the research director can make or break the survey.
[9] From start to finish a survey can take 14 to 40 days to plan and complete, including the tabulation, evaluation, and interpretation of data, and the presentation of results.