Carrying out extensive research before trial has answered questions such as those listed above in the following exemplar cases:

• In Riverside, California, a toxic case involving a Superfund site was being litigated with nine test plaintiffs who were allegedly exposed to hazardous materials. Pre-trial research indicated that jurors were far more interested in the handwritten reports of treating physicians than in all of the combined testimony and research conclusions of toxicologists, epidemiologists, and other medical experts. By capitalizing on these research results during trial, the verdict was held to approximately $13,000 per plaintiff, compared to a pre-trial settlement demand of $500,000 each.
  
  
• In Charlotte, North Carolina, a dissent and appraisal action was brought by the largest minority shareholder in a NASCAR track after it was sold for an amount that was approximately 40% of what he offered to pay for the stock. This shareholder, as plaintiff, claimed that the stock was worth what he, as a buyer, was willing to pay. Pre-trial research revealed that he had a credibility problem arising from cavalier and ill-considered statements made in his videotaped deposition. The videotape excerpts were digitized and encoded into a computer-driven presentation system (Trial Vision). These excerpts were later used to impeach him within seconds during his live, in-court testimony each time he said something at variance with his deposition. The jury awarded him only 10% of what he was asking, and cited his faltering credibility as the main reason for the low award.
  
  
• In Beaumont, Texas, we were retained by a large pharmaceutical company litigating against a major insurance carrier. The pharmaceutical company was seeking hundreds of millions of dollars as a result of the insurer’s failure to pay claims arising from breast implant litigation. The insurance company sued first, claiming fraud and negligent misrepresentation by the pharmaceutical company. The insurer’s claims were based on alleged dangers of the breast implants that were supposedly concealed by the pharmaceutical company before the policies were written.
  
  Pre-trial research was directed toward identifying relevant issues at the jury level, but it was also aimed at determining which types of jurors were more likely to side with the insurance carrier versus the pharmaceutical company. Contrary to expectations, the research revealed that experiences, attitudes and opinions related to insurance carriers had no relation to verdict preference at all. However, beliefs about pharmaceutical companies were strongly predictive of the verdict outcome.
  
  During jury selection, it was apparent that the insurer’s counsel was exercising peremptory challenges based on jurors’ opinions of insurance companies – the very criterion that our research had shown was irrelevant.
  
  The jury began deliberations with only a small minority favoring the pharmaceutical company; however, the pharmaceutical company eventually prevailed on all counts after six days of deliberations. Had opposing counsel known which jurors to strike, it is highly unlikely that this verdict would have been obtained. The result was a loss to the opposing side of hundreds of millions of dollars.

The foregoing examples show that, while a defense verdict is not always possible, it is always possible to minimize damages when a case cannot be settled. The phrase bears repeating: It is always possible to minimize damages. The overwhelming conclusion among those who use trial sciences is that the amount in damages that can be saved is far greater than the costs of adequate, scientific preparation.

How it works

For purposes of this discussion, we will differentiate two primary areas of pre-trial research. These will be termed exploratory and confirmatory.

Exploratory research

Exploratory research means to explore, that is, to initially find out “what’s out there.” This branch of the research program is often conducted before the discovery cutoff date. The results of this research tend to guide discovery efforts, helping to minimize wasted efforts, blind alleys, and the expenditure of resources on issues that jurors will not find dispositive. A brief discussion of the primary types of exploratory research follows:

Venue Analysis – This type of research involves a search and review of records and available information about the venue and the judge. Typical sources of information include census data; chambers of commerce; web sites; and interviews with local residents, especially local counsel. The types of information reviewed may consist of basic demographic data; the largest employers; local issues that are important to respondents; the propensities of the trial judge; and other matters that help describe the venire and what jury-eligible residents are likely to be concerned about in day-to-day life. Past verdicts in similar cases are extremely important, as well as the overall tendency of the venue to be plaintiff- or defense-oriented.

Archival Database Review – While the venue study is location-specific, the database review is case-specific. In this exercise, past research from all over the country is reviewed to determine the types of themes that are important to jurors in similar litigation. For example, in a patent case, the specific issues used by jurors to determine obviousness, prior art, and other aspects of validity, as well as infringement, are listed and examined. Effects of the court’s instructions on the presumption of validity and clear and convincing evidence are also studied.

The archival database review prevents the need for “reinventing the wheel” when formulating an overall strategy for discovery. With the knowledge of how jurors have reacted to similar cases in the past, one can devise a general plan for structuring interrogatories, depositions and justifying requests for documents. One can also begin a research program utilizing test respondents from the venue, without formulating case themes in a vacuum.