Researching the Trial Strategy:
SOCIAL SCIENCE APPLIED TO LITIGATION

Successful litigators are those who reduce the unknowns. Preparing for trial isn’t as simple as it once was. Jury trial isn’t as simple as it once was. Jury trials are longer and more complex than ever before. As a result, jurors frequently become confused and overwhelmed. Trial preparation today must include careful evaluation of jurors’ abilities to comprehend, remember, and attend to the trial.

Social scientists have developed a number of research tools that are helpful in developing and pre-testing trial strategies. By systematically evaluating each element of the case, the trial team learns what interests, confuses, and persuades a jury before going to trial. What follows is a brief description of jury trials, both large and small:

Study groups. Argument strategies were once generated exclusively by lawyers talking with other lawyers. Recently we’ve realized that the most valuable ideas about trial strategy often come from non-lawyers – people like those who will ultimately hear the case. In order to obtain this valuable input, "Study groups" were created. These consist of six to eight community residents assembled for a somewhat informal, roundtable discussion. The lawyers discuss the strengths and weaknesses of both sides of the case with these jury-eligible participants. By listening to the questions, the comments, and the conclusions of the study group, the trial team gains a clearer understanding of how non-lawyers interpret the trial issues.

Focus groups (or abbreviated mock trials). After examining the trial issues independently through small study groups, the major issues of the case are combined and condensed into a "focus group," an exercise which closely resembles a mock trial. Community residents, recruited from the trial jurisdiction, are given a presentation of the case, abbreviated jury instructions, and allowed to deliberate. Deliberations are carefully monitored via one-way mirrors and/or video recording equipment. By observing deliberations, the trial team is able to assess the strengths and weaknesses of the argument strategy and the effectiveness, or ineffectiveness, of key witnesses. These powerful insights allow the trial team to successfully alter the trial strategy.

Community attitude surveys. Increasing media attention to litigation can create strong pre-trial bias within a trial jurisdiction. This bias can be measured through telephone surveys of jury-eligible community residents. With this information about community sentiment, the trial team can make important strategy decisions, including whether to seek a change of venue, or request expanded voir dire with additional jury challenges. Moreover, results of the survey can help to estimate the chances of winning or losing; estimate how much the damage award might be, if any; and determine what pieces of evidence and legal issues to emphasize.