In the last two decades, research psychologists and top litigators have been leading a paradigm shift in which litigation has started to become more of a science than an art. By October, 1989, an editorial in the Wall Street Journal reported that taking an important case to court without the use of trial sciences “borders on malpractice.” We have even seen cases in which runaway verdicts have been followed by lawsuits filed by the insurance carriers against the trial lawyers for not conducting research before going to trial.

Shifting litigation from art to science has readily identifiable practical benefits. The first and most obvious one is a better trial outcome. The second benefit is that the litigator is rescued from second-guessing by potential critics. When preparation is thorough, methodical, and scientific, there is little room for Monday morning quarterbacks.

The shift toward science in litigation has allowed numerous difficult cases to be resolved without runaway verdicts. For example, in a horrific case involving several deaths on a North Sea drilling platform, corporate counsel for several large oil companies decided to utilize pre-trial research to make strategic decisions. The case involved a helicopter that was hit by forty-foot waves shortly after take-off, plunging workers into 45-degree water. This case did not appear to be one that had any significant chance of a defense verdict.

Mock Trial research did confirm that a defense verdict was not attainable. However, with three mock juries deliberating, the trial team was able to make an estimate of a probable range for a damage award. Armed with this information, the defense team entered settlement negotiations with scientific information on the likely outcome of a jury deliberation. Ultimately, they were able to settle the case for far less than the mock juries awarded.

As a result of the pre-trial research, the defense knew “where the bottom was,” but plaintiffs’ counsel did not. Plaintiffs’ counsel agreed to the settlement believing that they had a good deal, when in fact they had left millions of dollars on the table.

The North Sea case is a useful illustration because it exemplifies a fundamental error made by many litigators. Trial attorneys often assume that research will not be particularly useful once settlement is anticipated. It is believed that “since we are going to settle this, we do not need to know what themes work best, or how jurors will react – we just need to settle this for an amount that will make the client happy.” Not knowing what a case is actually worth, settlement negotiations fluctuate up and down by hundreds of thousands of dollars – even millions – when it only takes the tiniest fraction of these amounts to scientifically determine where the real line ought to be drawn.

An additional question that warrants consideration is, “What happens if the plaintiff won’t settle?” Without the prior use of trial sciences, the litigator is in a potential position of legal malpractice because the case was not prepared with the full intent of going to trial. Lack of adequate pre-trial research preparation in such instances can be ruinous to both the trial attorney’s career and the client.

Why use science?

As is well known, not every case that should be settled can be settled. Indeed, one key function of trial sciences is to put the brakes on the runaway jury – in other words, damage control. Typical questions that must be answered before going to trial include the following:

• Which themes will resonate favorably with jurors? Which could create a negative backlash (anger among jurors) directed toward me or my client?
  
  
• Is there a case “story” that will help jurors assimilate these themes in a helpful manner?
  
  
• Will there be problems with comprehension of technical issues?
  
  
• How can I develop demonstrative exhibits, charts, and other types of multimedia that (a) increase comprehension; (b) reinforce my themes; and (c) maximize retention by jurors all the way to the jury room?
  
  
• Which witnesses should be called? How will they be perceived?
  
  
• Can their performance be improved? If so, how? Should I use videotape, or call them live?
  
  
• What kinds of jurors are in the venue? What are the prevalent case-related attitudes and beliefs there?
  
  
• What types of pre-existing characteristics differentiate plaintiff and defendant jurors? Of the plaintiff jurors, how do I distinguish those who would likely award high- versus low-damages?
  
  
• What questions in voir dire and a Juror Questionnaire will be helpful to identify the highest-priority peremptory challenges?

In answering these pivotal questions, the function of trial sciences is to avoid the common pitfall of being more clever than correct. “Clever” means what seems to be a good strategy; “correct” means what will work at the jury level. At Ralston-Purina, corporate executives say, “That sounds nice, but will the dogs eat it?” Determining correctness is the function of science; in research terms, this is called validating a hypothesis.

As part of a team, trial attorneys reinforce each other, generate self-confidence, work long hours, and can easily become biased by this process. Having a dispassionate researcher as part of the team provides an anchor of objectivity. It can furnish a transition point from the subjective criteria of art to the scientific criteria of “what will actually work” at the jury level.