Trial research in the age of technology.

Jury research isn't what it used to be. Technological advances help trial lawyers fine-tune their case presentations and select the most suitable jurors.

Successful litigators today are willing to embrace advanced technology and benefit from the developments it has to offer. These include new advances in trial research that put attorneys who incorporate them into their trial planning and preparation activities at an advantage.

Trial research consists of pretrial surveys, focus groups, mock juries, post-verdict interviews, and other valuable studies. Findings let attorneys see cases as jurors will. In the age of the Internet, attorneys can conduct their jury focus group research and their empirical case issues analyses in cyberspace.

Online trial research permits attorneys with limited case budgets and tight schedules to reliably determine how jurors in a particular venue may regard the case and its key facts, issues, and arguments; to forecast jury verdicts; and to discover the optimum case strategy and ideal trial theme.

Five factors make trial research online worthwhile.

Immediate case study results. Online trial research studies can be organized, conducted, and analyzed in a matter of hours. It can often take a week or more to properly organize and conduct a traditional focus group. With Internet trial research, after quick contact by phone, virtual jurors can go online and participate in an online session at the click of a mouse.

Reduced costs. Because the Internet is so efficient, online case study sessions can be coordinated with minimal professional staffing and coordination requirements. More conventional trial research often requires about 30 hours of staff time for every hour of research. The instantaneous communication, coordination, and conferencing capabilities of the Internet reduce this ratio. As a result, lawyers with limited staff and funds can use the same state-of-the-art research methods larger law firms use.

Sampling power. With over 150 million users, the Internet offers diverse opportunities for trial research. Virtual jurors have a wide spectrum of demographic characteristics, which broadens and enhances case testing options. Participants can be quickly selected to ideally match the research requirements of a case.

Research in distant venues. Virtual jurors representing different venues across the country can be made available quickly for specific online sessions. This means that no matter where a lawyer is located, he or she can conduct jury research online with jurors from the region where the trial will be held to take a quick reading of a case, determine the key issues jurors will consider most important, and plan a trial strategy accordingly.

"Ideal juror" sampling. Before the advent of the Internet, it would have been impractical to try to organize a focus group of jurors who matched the hypothetical ideal-juror profile for a case. The logistics of locating ideal jurors and then coordinating their participation in a conventional focus group session would have been overwhelming. The Internet now makes it practical.

Today, jury consultants can organize an online session comprised of virtual jurors who represent the ideal-juror profile for a particular case regardless of where they are located. Consultants can then use the jurors' comments on the issues of the case to recommend voir dire questions and suggest how attorneys might present their clients' cases.

One disadvantage of online research is that the jurors must draw their opinions from a written description of the case as typed by the jury consultant. They are unable to evaluate the attorney's and witnesses' performance, trial graphics, or other demonstrative evidence.

This will change as trial consulting firms incorporate "streaming video and audio" technology, which transmits live audio signals and video images over the Internet, into online sessions.

Methodology

Online sessions are conducted as follows. A trial consultant selects jurors from an automated database, matching individual profiles to the research objectives. Jurors are selected in one of three ways: random sampling, representative sampling, or stratified sampling.

Random sampling means jurors are picked at random from voter registration lists, driver license bureau lists, and so on. Representative sampling means jurors are selected because their demographics represent potential jurors in the venue where the trial will be held. Stratified sampling, the ideal method, means jurors are chosen according to their demographic characteristics, values and beliefs, opinions and attitudes, and life experiences that relate to events in the case. Stratified sampling produces more meaningful results than do random or representative sampling.

For example, an attorney in Des Moines needs to determine precisely what an ideal juror will think about a medical malpractice case involving a health maintenance organization. The jury consultant drafts a hypothesis that suggests the ideal juror is a semi-professional African American woman who is 35 to 45 years old, upwardly mobile, divorced, actively religious, politically conservative, and idealistic but unemotional. This ideal juror believes that people can use their skills, abilities, and hard work to their benefit, and she will have had one or more negative experiences with an HMO.

Jury selection is a process of rejection--and attorneys don't know whom to reject unless they know whom they are looking for. This is why establishing an ideal-juror profile and testing it through focus groups and other litigation research is so important. It lets attorneys determine how to structure a case presentation so it will resonate strongly during trial with desired jurors. Plus, information can be culled that can be useful for preparing voir dire questions that may reveal juror biases.

Once jurors have been selected, they are informed of the upcoming online session. At the appropriate date and time, the jurors log onto a specified Web site and gain access to the online session using a security password.

A computer screen window acts as the "room" where the virtual jurors and a moderator will interact. The jury consultant acts as the moderator, who leads the deliberations by typing descriptions of the cases to be analyzed and questions for the virtual jurors to answer.

The jurors communicate with the consultant by typing their replies and clicking a "submit" button. Typed comments by all participants immediately appear in the computer screen window.

The attorney is able to view the online deliberations from his or her PC and can communicate privately in a separate window with the moderator without interrupting the session. A transcript of the deliberations can be e-mailed to the attorney after the session.

For example, consider the following abbreviated commentary adapted from a typical session. The case particulars and juror commentary have been changed to ensure client confidentiality.

The case concerns a charge of police brutality brought by a person who was allegedly beaten by detectives after being arrested during a bookmaking raid of his home. Although a clear consensus quickly emerges among the jurors that the plaintiff has a strong case, it also becomes evident that they do not think the plaintiff should be awarded a large verdict.

      Juror 1: The detectives appear to have gone overboard. [The plaintiff]
   should receive reasonable damages.

      Juror 2: I don't agree. Maybe the officers should be required to live
   briefly in the same conditions [the plaintiff] lives in.

      Juror 3: I am sure we all agree that awarding millions of dollars is out
   of the question.

      Juror 4: I agree. Considering the overall circumstances, any money
   awarded should be limited.

      Juror 5: Millions of dollars in damages makes no sense whatsoever. I
   would be willing to give [the plaintiff] a reduced amount--say $25,000--but
   no more.

      Juror 6: The taxpayers in our district are the ones who suffer when
   large damage awards are made. If the damages are excessive, you can be sure
   less money will be available for important local services like road repair
   and school construction.

The dialogue clearly indicates that the plaintiff's attorney will need to ferret out potential juror bias during voir dire and use peremptory challenges to clear the panel of biased jurors. He or she will need to educate the jurors about damages and make sure the evidence justifies the amount requested.

Electronic voting 

Conventional focus groups now often include electronic "voting" devices that research jurors can use to instantaneously record how they feel about distinct elements of a case, such as opening statement and closing argument.

The handheld electronic keypads display numbers 1 through 10, with keys 1, 2, and 3 doubling as A, B, and C and keys 1 and 2 also doubling as yes and no.

The system works like this. Jurors participate in a simulation of a trial and render opinions on opening statement, witness testimony, and so on. At the end of each portion of the courtroom presentation, the jurors grade that segment. A grade of 10 indicates maximum approval, a grade of 1 indicates maximum disapproval, and grades of 9 through 2 indicate degrees of approval and disapproval. For example, jurors may be asked to evaluate a witness's sincerity, credibility, and likability on a scale of 1 to 10. Jurors can also register blanket approval or disapproval with the yes and no keys.

One important benefit of electronic voting is that it allows jurors to provide feedback on the arguments and evidence in a case without being influenced by the other jurors. Studies in social psychology show that when one person in a small group states an opinion, that opinion affects (and potentially biases) the opinions of the other participants. Electronic voting prevents that.

Other benefits of this system include the nearly instantaneous feedback attorneys receive and the ability to correctly track shifts in opinion in real time as the attorneys try out alternative courtroom presentation methods.

Expert systems

Expert systems are automated systems that perform a task that would otherwise be performed by human experts. They typically comprise two parts: an extensive database that contains specific knowledge of a given area (knowledge base) and a set of rules for establishing valid conclusions (inference engine). The inference engine uses the knowledge base to make associations, inferences, and judgments. Expert systems have been used to diagnose illnesses, make financial forecasts, and schedule routes for delivery vehicles.

Expert systems are being developed to help attorneys select jurors for specific types of cases. The systems, which will eventually be available on the Internet, will be useful for attorneys who must prepare cases on short notice.

All attorneys have to do is complete an interactive online form on which they will list salient case facts and other particulars. The expert system will analyze the data and then develop ideal-juror profiles for both the plaintiff and defense.

The profiles will be specific. They will detail desirable (and undesirable) juror characteristics, including demographics; thinking styles (for example, abstract, logical, intuitive); feeling styles (for example, cautious, hostile, detached); behavior (for example, protector, manipulator); life experiences (for example, close family circumstances, difficulty making ends meet); and attitudes (for example, business ethics are important; most doctors and hospitals are good).

The system will suggest specific voir dire questions to help determine which panelists best match the ideal-juror profiles and which do not.

Jury research is becoming more technologically advanced every day. Data on probable juror responses to key case facts, issues, and arguments are more accurate than ever before. What this means is within the next few years, attorneys who prepare cases and select jurors based on online trial research will arrive at court on the first day of trial ahead of the game.

Robert Gordon is founder and director of the Wilmington Institute Network, a trial consulting firm in Dallas that conducts litigation research activities over the Internet.