Jurors look to counsel for guidance for a starting number

Very rarely does a juror or jury pull a random number out of the sky for an award. It is most often some combination of the following: what plaintiffs ask for; what defendants counter with; strength of evidence; how angry jurors are at the defendant and how much sympathy they have for the plaintiff; and the current “climate” with respect to the issue at hand. (For example, following Enron and Worldcom, there was a lot of anger towards corporate defendants; alternatively, in a patent case involving the smallest microchip that plays a small supporting role in an esoteric, commercial device, jurors have less emotional involvement.) Jurors want and need anchors as starting points, even if it is $100 million and $0. They generally have little experience with the issue at hand and equally little experience with the sums of money that are often dealt with in litigation.

Jurors very often average their individual preferences

Though they are told not to do this, it is the path of least resistance. Unless a small faction has very strong feelings about the award, most people are generally willing to compromise to averaging or trading amongst claims. Keep this in mind when considering alternative damage awards.

The higher the number, the more egregious the action needs to be

We consultants have all worked on cases that involved hundreds of millions of dollars. Most often these are patent claims or fraud claims or claims that may have a RICO element. Jurors usually cannot see any business transaction that could be “worth” hundred of millions of dollars. If plaintiffs claims exceed a “reasonable” amount, they need to be be very well prepared to back that up with excellent expert analysis, evidence of blatant fraud or infringement or negligence (or whatever claim is at issue) and the jurors must be incensed. Period. Jurors will not award $100 million for perceived whining that your client missed out on that much in profits, when they still made a billion in revenues.  Even if there is a rogue juror who agrees with that, generally the others on the panel will force a compromise.

Jurors need context

As I mentioned, jurors don’t often have any experience with this level of money or business. They look through their glasses of “fairness” in their decision-making. Why is it “fair” for a large corporation to be awarded millions of dollars from another, less profitable company? Why should your client pay for a plaintiff’s on mistake in operating a piece of equipment? Why do they care to enrich large banks? If counsel can provide a context and educate jurors a little on how the system works [insert relevant corporate activity], it can go a long way toward justifying an award (or not).  Experts here must be clear and credible and persuasive and, jurors must be willing to listen at this point. If they are dead set against any award, there will be no incentive for them to listen to any “proof” that lost profits were $75 million.

Jury research can help explain what is driving jurors’ awards, but proceed with caution

Of course jury research can play an important role in studying potential damage award ranges, however, let me caution you that this is not without its problems. First and foremost, jury research is not designed to be predictive of anything. If three mock panels award 10%-20% of the requested amount, and counsel decides to continue to trial only to have the real jury award 90% of the request, it would not be unheard of. Different people see things differently. Secondly, in the context of jury research and testing evidence and witnesses and themes, aberrant damage numbers that are based on no expert testimony, no substantive damage presentation, etc., are practically meaningless and may, in fact, cause more problems. Think of it this way, if counsel goes to their client’s in-house counsel or board with research results that show a low damage award, and they base their decision to proceed to trial, in part, on that information, they could be in for a big shock. Of course, the reverse is also true. It is possible to get a read/measurement on jurors’ levels of sympathy and anger without having to pinpoint a damage range.

Be aware of how your client is perceived in the venue

Even if your client is a big player in the area in terms of jobs and paying lots of taxes and community involvement, there will likely always be someone who has had a bad experience or knows someone who had a bad experience or has a general disdain for your client. Never underestimate the power of the grapevine or the ability of people to hold grudges that can carry over into the courtroom.

1. Counsel that is too aggressive. No matter how smart, savvy and capable–jurors are not used to, what I refer to as, this “art” that goes on during trial. This applies in general and with witnesses.
2. Senior executives who ostensibly don’t know about the company they run. Jurors expect a senior person to know the patent portfolio or the HR policies or whatever else the issue is.
3. Lots of sidebars.
4. Being “talked down too.”  This risk exists in both complicated matters where the jurors likely do not know anything about the subject or technology as well as matters where they have some experience, such as employment cases or contract cases. Treat jurors with respect.
5. Depositions that are read in. I know, sometimes this is unavoidable but it is a real snoozer for jurors.
6. When a company has not self-corrected after learning about transgressions, for example, with policy violations or a problem employee, and then it leads to the current lawsuit.
7. When company representatives and executives all say they were not aware of something that appears really big at trial, for example, bank frauds, patent infringements, large scale wage and hour issues. It always looks “obvious” to jurors at trial and the executives “had to know”.
8. Obstreperous witnesses.
9. Instructions. Archaic and confusing and often long. (Also confusing verdict forms.)
10. Personal attacks/jabs on witnesses or opposing counsel.
11. Excessive objections during witness testimony. We all get it; they often do not.
12. Busy and unreadable graphics. There are so many resources out there for graphics help that this should never be a distraction.
13. Witnesses who overuse “I don’t recall” when the issue was not a really long time ago and when the witness fails to put a context around that.

1. You’ll do just fine.

2. Jurors don’t really pay attention to witnesses anyway.

3. Don’t worry! Or, Don’t stress!

4. Just picture everyone in their underwear.

5. You won’t be on the stand very long.

6.Testifying is no big deal.

7. Look over at me if you have a question or don’t know how to answer.

8. Opposing counsel is not good enough to trip you up.

9. Just stick to what we practiced.

10. Jurors feel sorry for witnesses anyway.

I spent some time last year talking about mock trial mistakes, so here is a brief article outlining what mock trials generally look like, in any case. Every consultant is different and each case has a few nuances that may require special treatment. Otherwise the time looks something like this.

Participants are gathered in a room and fill out some sort of background questionnaire, varying greatly in comprehensiveness. Sometimes these are only demographic type questions and sometimes it contains a lot of questions about various attitudes and experiences, some related to the specific case issue and some not. Most of the time, these more comprehensive pre-stimulus questionnaires (filled out prior to any case presentations) are used for jury selection analysis. Then the group hears what is commonly referred to as a “clopening” from each side, which is a combination opening and closing–argumentative and comprehensive, usually about an hour in length.  In between presentations, jurors typically fill out a few questions also so consultants can track their thinking each step of the way. Sometimes witnesses are shown at this time, sometimes they are imbedded into the presentation and sometime they are shown later. It just depends on the specific research design and what the consultant is testing. More questions follow each witness. Finally, the larger group is broken up into the smaller deliberation groups and the groups deliberate generally and then usually on verdict questions. After the groups are finished, they are usually debriefed by a consultant.

Some consultants insist on separate openings and closings with witnesses in between. I think that is helpful when you really want to test some substantive issues from the witnesses. Otherwise, I don’t think it is necessary. In a jury research scenario, the information is not exhaustive. It is a truncated scenario so the differences between openings and closings don’t matter to jurors. In terms of witness testing, there is always a lot of confusion surrounding this too. Sometimes clients want to test 8 witnesses. I think that is overkill unless you are doing a full-blown “trial simulation” and have 2 days. Or, you show very short witness clips just to get jurors’ reads on credibility/likeability, etc. Jurors can’t possibly give a meaningful substantive review about key testimony based on 3 minute clips.

There are many variations on the above theme. Take the time to ask your consultant how he or she will handle certain issues or special circumstances. For example, patent cases are more complex because of the neutral overview about the patent system and the amount of education that must come prior to the presentations. Sometimes there are several patents being tested or infringement and invalidity issues; this requires a different level of service and attention to detail.  Another example is in an employment research exercise. It is generally critical to test the plaintiff against the defendant; you want to know how jurors perceive the key players and evaluate their credibility. Another variation amongst jury research designs (and consultants) is the extent to which they utilize data. Some consultants rely only on quantitative data and others rely only on qualitative analysis and some, like me, do both and the extent to which largely depends on the goals of the research e.g., jury selection, or the complexity of the issues, e.g., patent cases. Again, it is imperative to discuss with your consultant how the research will be structured for your particular case.

Post jury research generally involves a report of some kind, and again, this varies greatly across the industry. If you want something special, just ask and your consultant will likely be able to accommodate your request. (And if not, they should have a good explanation.)  Sometimes these are in person, sometimes over the phone or Skype. Just depends on location and preference.

Jury research can’t do everything and, this is important, is not to be considered predictive of the outcome at trial. If any consultant tells you otherwise, they are being….less than honest.  Jury research is an excellent tool to test case facts and themes and arguments, test witnesses and damage theories and even provide a practice round for counsel. It isn’t designed to be exactly like trial. Counsel who refuse to let the jury see the instructions or a damages chart because “that would never happen in this jurisdiction” are missing the point. We learn what jurors are thinking and how they are making their decision based on their discussion. If they aren’t allowed to look and listen and touch and ask questions, we will learn very little. It is all about getting the jurors engaged and deliberating.

Price is the final element that varies widely across the industry. I cannot begin to enlighten anyone on what different shops charge–I have no idea. (I have some idea, but those are subject to change all the time.) Whatever the price is you are quoted, let me say that you have every right to ask what constitutes that price. Some charge hourly, some charge a fixed fee, some overcharge and some appear to be the steal of the century. As long as you, the client, feel like you are getting a good value and have a trusted consultant, it is worth it. I will say that usually the most expensive part of the whole jury research exercise is the expenses: the juror fees, the recruiting fees and facility/hotel. It is just expensive and generally is what it is. Of course, some consultants mark up expenses (I do not) but, again, you have a right to see the final invoice the consultant gets from their vendor. (And discuss this up front too.)

Hopefully, those people searching for this information received some help here. My thought/philosophy on “mock trials” after all these years is that most anyone can do them. Some do them well and some are just awful. But the real value comes in what the client gets out of it. Was it useful? Was it strategic? Did it answer your questions? Do you feel good about it? How can we move into the war room with the information we learned? Your consultant should be a team member, not an order taker for a “mock trial” and then disappear into the woods. Use your consultant beyond the mock trial day because, if they are doing their jobs, they can help.