Alternative exploratory research designs in litigation - part 1
Part 1 of 3
Pre-trial or “jury research” is sometimes bifurcated into two categories, the first being Exploratory Research – projects designed to initially “see what’s out there,” investigate the substantive terrain of a case, and find out “what sticks” thematically in terms of case arguments, issues, and evidence. These types of projects are commonly referred to as “Focus Groups” and consist of research designs that typically do not use deliberating mock juries (although in some instances they can).
In Exploratory Research, the key intent is to find out what is meaningful to jurors. As trial teams “breathe their own exhaust” during months of trial preparation it becomes more and more difficult to ascertain what jurors actually care about versus what “seems important,” and since the latter body of information is typically much larger than the former, these types of projects ultimately serve as a form of information reduction – a means to reduce the elements of the case theory into a more manageable body of facts, arguments and issues that is more streamlined and more effective.
The second category – Confirmatory Research – is intended to provide more specific and definitive information that can be relied on to reflect actual trial conditions, i.e., to confirm or disconfirm those particular case issues, themes, arguments and evidence that “drive” ultimate verdict and damages decisions by jurors. From the present perspective, then, Confirmatory Research is more formal, trial-like, and rigorous in implementation, most frequently taking the form of Mock Trial or Trial Simulation research. In these designs, judge’s instructions are used with verdict form interrogatories to charge deliberating juries. It is generally agreed that Confirmatory Research has a greater potential to be predictive of actual trial outcomes compared to Exploratory Research.
The intent of the present discussion is to consider alternative formats for Exploratory Research, which might loosely be conceptualized as an examination of “different types of Focus Groups.” While the concept of “Focus Groups” is typically utilized to refer to relatively simple designs in which a group of test respondents is subjected to presentations designed to “throw it all out there and see what sticks,” we will also be considering more specific design alternatives that are implemented to achieve various tactical objectives in the overall preparation of a case.
I. Traditional Focus Groups
Typically, the traditional Focus Group design consists of the following steps:
1) Recruit a suitable sample of jury-eligible
test respondents who are representative of the trial venire;
2) Develop presentations that summarize the positions of the parties in the case (these presentations may or may not include the case demonstrative evidence and witness testimony); and,
3) Implementation, consisting of a) administration of a pre-test measure designed to assess pre-existing characteristics of respondents; b) subjecting the research participants to the presentations; c) post-test measurements to gauge their reactions to the case; and d) the focus session itself, in which respondents are queried as to their reactions to the case, and the more peripheral beliefs that regulate such reactions.
Thus, the design may be loosely conceived in terms of a “recruit/pre-test/presentation/post-test/focus session” structure, which represents perhaps the most rudimentary of jury research approaches, and indeed these types of projects are often carried out informally, with little (or no) scientific rigor.
The utility of this type of research arises from its capacity to determine what is important to respondents in making a verdict decision, versus that which is hypothesized to be important to jurors but in reality is not. This “separating the wheat from the chaff” or differentiating “correct” from “clever” may play a crucial role in theme development, since some case issues, themes and arguments may seem to be important on an a priori basis but ultimately do not in fact have any impact on the actual verdict and damages decisions made by jurors. Moreover, jurors frequently interject issues that are important to them but that were unanticipated by the trial team, lending these projects a kind of serendipity that can beneficially “feed” trial strategy.
Cost effectiveness of these exercises can be considerable, as themes that were hypothesized to be important but found to be ineffective later become discarded, reducing the “load” on the trial team and concomitant discovery costs. As one attorney put it, “I ran a focus group and found out I did not need a $75,000 expert that I was expecting to use.” Streamlining the thematic structure of a case through Focus Group research may therefore have a joint effect of making the preparation both more economical and more effective by reducing the themes to only those with maximal traction in terms of persuasive impact.
The degree of predictive validity – how well the research can forecast actual juror dispositions and reactions in trial – is a complex topic, but generally speaking, the more trial-like the research conditions, the better (more accurate) the prediction. As we shall see in examining the research options that follow, some research designs are more “trial like” than others. For the present purposes, we note that achieving “trial like” conditions will first involve the completeness of the presentations, and the factual/evidentiary content included therein. Each of the following types of Exploratory Research includes some form of presentation to ground jurors in the facts of the case, and it is the content of these presentations that figures as the most important determinant of overall predictive validity. While we will resume consideration of this topic at the conclusion of this paper, it is also noted that research methodology plays a key role in the reliability of the results for purposes of making inferences as to how actual jurors will perceive the case.
The Role of Cognitive Fatigue on Witness Performance