Alternative exploratory research designs in litigation - part 3
Part 3 of 3
In part 1 of this topic, we introduced the concept of alternative formats for Exploratory Research and detailed the specifics of a traditional Focus Group. In part 2, we described two alternate Focus Group designs: Graphics Research and Juror Profile Research. In this final section, we explain yet another alternative option, Witness Effectiveness Training with Jurors, and offer some concluding thoughts.
IV. Special Designs – Witness Effectiveness Training with Jurors
Witnesses, of course, are where the “checks” written in opening statements get (or fail to get) “cashed.” While in the early days of litigation consulting it was often stated that “Jurors make up their minds in opening statements,” in fact post-trial juror interviews reveal instead that more frequently, jurors make up their minds while watching the witnesses. In any event, the importance of effective witness preparation is not a topic that engenders debate.
Witness preparation most frequently takes the form of some type of “sit down” in which an exchange of performance guidelines, principles, ideas and themes is exchanged between the trial team (lawyers and perhaps consultants) and a witness. While much has been written on these types of preparation activities, in the present context, we convert the notion of witness training into an exercise involving test respondents in a Focus Group setting who provide feedback to the witness. We sometimes refer to this as “industrial strength witness training” – that is, Witness Effectiveness Training with Jurors.
Indeed, since jurors do not know that the witness is being provided with their feedback, uncensored comments by jurors may create a degree of immediacy and raw impact that can render the process unsuitable for some witnesses: The types of comments provided by jurors can be difficult to endure for sensitive witnesses, and care should be utilized in choosing the right circumstances in which to use this very powerful witness preparation tool. (By contrast, it is particularly effective for intractable witnesses who are resistant to taking advice from lawyers and consultants).
Our experience suggests that the a priori evaluation of witnesses – that is, the assessment of their likeability and credibility without a “reality check” from jurors – is notoriously fallible, even for seasoned litigators and experienced consultants. In other words, nowhere in the field of litigation will a trial team find that an “opinion” is less useful than in determining in advance how a witness will play (except in the case of very good witnesses with a track record of impressive performances). The area of person perception – ascertaining the degree of attractiveness and likeability characterizing a given person – is exceptionally vulnerable to bias, and trial teams seem to routinely over-estimate the positive characteristics of their own witnesses and under-estimate those of their opponents. The fallibility increases exponentially when one considers the stressors induced by the courtroom environment, and how such stressors may unexpectedly affect ultimate performance on the courtroom floor.
Witness Effectiveness Training with Jurors ameliorates these shortcomings in the following manner: Overall, the intent of the exercise is to recreate a slice of the courtroom proceedings by using a jury in conjunction with attorney advocates who provide mock direct and cross examinations, with breaks between testimony sessions in which the panel is queried as to their reactions to the witness performance on relevant dimensions (nonverbal behavior, mannerisms, body language, tone, speech rate, eye contact, facial expressions, and of course the substance of the testimony as well). These juror reactions, elicited in multiple, successive Focus Group settings (or in a single Focus Group session at the conclusion) are “fed back” to the witness and trial team members in real time via closed circuit television. The implications, lessons, and general information provided by jurors are then used as a basis for final preparation of the witness in additional “sit down” sessions. In other words, in this type of witness training, we let the jurors guide the ultimate witness training, based on what they need to see and hear in order to be fully convinced.
These exercises utilize very little (if any) questionnaire measurements, although response scales may be used to “score” witnesses on credibility dimensions (e.g., candor, trustworthiness, likeability, communicativeness, expertise, etc.). Steps are as follows:
1) First, recruit a suitable sample of jury-eligible test respondents who are representative of the trial venire (in this case 18-24 mock jurors are typically sufficient);
2) Develop a) introductory or “basic” presentations for each side that provide essential information about the case as background and b) scripts for mock direct and cross examination for the witness(es) who are participating;
3) Utilize a courtroom-like set up consisting of a judge’s bench, jury box, witness box and counsel table, along with electronic presentation systems to create a realistic trial-like environment;
4) Implementation, consisting of a) having attorneys give respondents the “basic presentations;” b) providing mock direct (or cross, for witnesses who are going to be called adverse); c) excuse the trial team from the “courtroom” and conduct a focus session revealing the witness’s characteristics, strengths, weaknesses, etc. with real time transmission through closed circuit television to a secure room where the trial team and witness view the proceedings with the jurors; d) have the trial team re-enter the “courtroom” and resume with the next set of questions to the witness (if direct was first, then this would be the cross, and vice-versa); e) repeat (c) above; and f) continue repetition of the process as needed for as many witnesses as required.
5) [Optional] Questionnaires may be developed in advance to have mock jurors write about the witnesses in terms of comments or miscellaneous perceptions, possibly including as well standard response scale items measuring selected attributes or credibility dimensions as noted previously.
6) Use the findings for each witness as a foundation for final witness preparation sessions grounded in the perceptions reported by jurors.
In many instances the term “what sticks” has been used to refer to those themes that resonate with jurors and which are emotionally or perceptually relevant to them. In more formal terms, these are the issues or themes that jurors store and retain in memory for problem-solving the case. Psychologists emphasize that memory does not act like a recording device, but rather is selective, with retention depending on the meaningfulness of the issue or theme to the perceiver. These considerations are vital to the litigator since jurors do not deliberate based on what happens in real time – they deliberate based on what has been stored and retained in memory.
Thus, the use of instant feedback devices is not recommended for Focus Group research, because it literally provides too much information. As jurors selectively store in memory only that which is meaningful, that which has become stored can be counted on to reflect the truly dispositive elements of the case, and conversely, that which is not stored in memory is just as useful to the litigator as information that was never presented at all. Therefore, recording of real time reactions to information that never makes it into memory serves up data that essentially has no tactical importance to the litigator.
Limiting research to the examination of only that which jurors have kept in their memory to the end, however, represents not only a more parsimonious approach to the perception of the case, but also a more effective one. As stated previously, the more trial-like the procedure, the more one can count on the associated results to mirror trial outcomes – i.e., be predictive. Since prediction leads to control, the importance of making a research project as trial-like as possible becomes self-evident. Thus, studying what jurors have retained at the end mirrors actual trial conditions in which jurors are only using that which they have retained at the end.
Focus Groups have an unmistakable “anyone can do that” aura about them and indeed many people literally believe this. Make no mistake: Focus Group research is psychological research, which is unusually sensitive to insidious forms of bias that can easily contaminate the results. Research has shown repeatedly that data in psychological research is readily affected by the wishes and intentions of the researchers. When such wishes and intentions have strong emotional components, the results are even more vulnerable to bias.
For example, in our examinations of the accuracy of pre-trial research conducted by both plaintiff and defense trial teams, we generally find that research conducted by the former produce higher damages than research conducted by the latter – often much higher. It is not surprising that the wishes and intentions of the researchers in the former entail damages. In addition, rarely (if ever) do we see damages in projects run by plaintiffs that are not significantly higher than those awarded in trial.
Even in Exploratory Research one cannot escape the ultimate requirement that the research is intended to predict. While such research is not designed to forecast verdict and damages outcomes (the typical requirement for “prediction”) it is still nonetheless predicting the subjective responses of jurors that will presumably occur in the real trial – otherwise, what utility could the research possibly provide to the litigator? And, if prediction of any kind is in fact required, then we are operating at the highest level of scientific inquiry, and suitable qualifications for conducting the research should be ensured.
A final note concerns the viability of "online" or "virtual" research which has recently become in demand as a result of social distancing requirements among mock jurors. Depending on the requirements of the research, any of the exploratory research designs considered here may be adapted to an "online" or "virtual" format with a bit of ingenuity applied to the task, although limitations in the actual implementation of the research may be a function of the software platform in use. Assuming for a moment that one is using Zoom, for example, to run the Juror Profile Research, the task of obtaining the requisite sample size might be compromised at a somewhat smaller number (i.e., approximately 100 test respondents), and since a Zoom-based focus group could only accommodate a maximum of about 16 jurors at a time, there would as a result be 7 replications, and 7 focus group sessions, utilized to complete the project. While this is a bit more cumbersome than the traditional "live research" approach, the higher number of replications would have its own benefits in determining how robust certain juror response patterns are among venire members.
Typically, the forced use of virtual research has a serendipity associated with it, in which benefits appear that are previously unanticipated (such as the increased repetitions noted previously). Software-based (for example, Zoom-based) research projects may present an unexpected flexibility, such that modifications may be implemented "on the fly" while the project is underway. Thus, if a certain response pattern is noted among jurors after the first 3-4 replications, the stimulus presentations may be amended to include new or different evidence to evaluate its impact on verdict and damages. These types of modifications are much more difficult to accomplish in traditional research "in the field" where the stimulus presentations are being handled by a research team onsite at a remote location. In "online" research everything is managed by technicians who have full control over all of the moving parts of the project, so adaptations to the research design can be managed in a more expedient and flexible manner.
The future of "online" or virtual research is at present unclear, as is the end of the pandemic itself. It is entirely possible that the demand for such research may result in more sophisticated software specifically designed to accommodate the various design options of the type outlined in this paper. As it stands now, there appears to be a pent-up demand for virtual research to meet certain needs -- needs that are currently being frustrated by the assumption that they cannot be met by existing software options. In other words, legal teams want certain research to be consummated but they are unable to find the capable software platforms they need to suitably meet their research goals. Zoom, while a respectable online meeting tool, was not designed specifically to meet the needs of online legal research. As a result, the complete answer to the question of the suitability of virtual research will remain an open question, pending the completion of future software developments that could satisfy such needs.
The Role of Cognitive Fatigue on Witness Performance