Many have observed the continued decline of the civil jury trial. One reason trial by jury is falling out of favor in civil disputes is that parties and counsel treat it like the ultimate mystery, and this uncertainty makes the alternate ways to resolve the dispute look a lot safer. The jury is a “black box,” and the phrase “A jury can do anything,” is often on counsel’s lips as expectations with clients are being set. That can be a little off-putting, and of course, that is often the point: The client who sees a big verdict in their favor as a sure thing, probably does need that reality adjustment. At the same time, treating a jury trial as if it is casting a pair of dice into the unknown is probably overselling the uncertainty. It can be useful as a cautionary reminder, but less useful as a real practical guide to one’s chances in the civil courtroom.
The reason for that is that jurors are not really unpredictable. After all, a jury doesn’t just come out of nowhere. They come from the community. And the constitutional ideal of the jury as a representative of the community’s sentiment isn’t just parchment sentimentality. Those who see juries on a regular basis know it to be a working reality. Of course there will be idiosyncrasies of composition that make each jury unique, but the voice of the community is always there. That democratic function and practice suggests that part of preparing for trial, part of demystifying the jury, and part of saving the proper role of a civil jury trial is to know your community better. Understanding the local attitudes and experiences as they relate to the issues at play in your particular case is an important uncertainty reduction strategy. Client, counsel, and consultants are all able to do their jobs helping to manage, settle, or try the case more effectively if they are armed with that background information. All are better armed with the aid of a relatively simple and low-cost tool: a community attitude survey conducted prior to jury selection.
Previously, I’ve written about seven main uses for community attitude surveys. The benefits relate to adapting to one’s venue, systematically selecting jurors and screening out potential biases, and obtaining simple first-impression reactions to the issues at stake in your case. The community attitude survey can be used on its own or as a supplement to a research strategy that includes a focus group or a mock trial. In all cases, however, the survey is not just an informative exercise, it is a tool that helps you form and test the questions used in voir dire and to shape the messages for the ultimate jury.
Actually conducting the survey takes four steps, each one of them aided by the involvement of a social science researcher.
One, Know What You’re Researching
That means developing research questions in advance. The point isn’t to just broadly know the community — chances are good that an experienced local counsel already knows their community. Rather, the goal is to look at the specific case issues and decide what uncertainties attach to this particular scenario. For example, in a construction case, you might want to survey on questions like these:
How common are positive and negative experiences with contractors?
Who is generally seen as having more control over a project: the general contractor or the subcontractors?
How much awareness is there over the project at issue, and have people formed opinions?
Two, Develop Fair and Effective Questions
I might be unusual in one way: Whenever I’m at home and I get a call asking if I want to take a survey, I always say “Yes,” because I want to hear how they frame the questions. And increasingly, I’ve noticed questions structured like this: “If you learned that Senator Schlum had sacrificed his own illegitimate children in a Satanic ritual, how would that influence your support for Senator Schlum?” That’s an exaggeration, but the use of questionnaires to influence rather than just measure public opinion, the so called “push poll,” has become a lot more common. Litigators, who are used to influencing and often adapt a more subtle version of that approach in their oral voir dire, can drift into that approach. That is another reason why questions should be drafted by an experienced public opinion researcher, and should be fair with no “push” one way or the other. Ultimately, you want questions that are neutral enough that they could be included in a draft supplemental juror questionnaire submitted to the court for use in voir dire.
Three, Sample the Venue
The next step is to work with a market research company to run your survey on a sample drawn from the community. How big a sample? Generally not as much as we would use if we were trying to predict the next presidential election, but it should be large enough to draw some statistically significant and meaningful associations. Around 300 respondents is typical for our group. There are two other additional considerations. One is that it matters how the sample is selected. An “opt-in” sample is not going to be representative: You want people who are contacted and agree rather than people who contact your recruiter and volunteer. A sample randomly drawn from the population (that is, not part of a pool that gets paid to take surveys) is vastly superior, and probably a precondition to being able to make reliable generalizations from the sample. The second consideration is that you don’t want to risk tainting the eventual jury pool: If the summons have already gone out, screen potential respondents to exclude those who have received a summons for jury duty. If they have not, then make clear at the end of the survey that if they are called for jury duty and if they are questioned on issues having to do with the survey questions, they should share their experience as a part of the survey during voir dire.
Four, Understand and Apply the Results
When you get the results back, it is going to be a lot of tables and charts. It is purely descriptive and will be purely useless unless it is analyzed and applied. Remember at this stage that your goal is not to just understand the playing field. Rather your goal is to reduce uncertainty as you prepare for trial. If you have designed the survey well, you should be able to treat some answers as indicating a person who would be higher or lower risk for you at trial. With those questions treated as “dependent variables,” you can next ask which “independent variables” work best in identifying the favorable or unfavorable potential jurors. In other words, if respondents reacted to a short thumbnail of your case scenario, you can analyze the data to look at the experiences or attitudes that are statistically associated with that response, and you can use that in voir dire.
A systematic approach to community views makes your eventual jury much more knowable. Of course, it will never be perfectly predictable, but then again, neither are any of the alternatives to a jury. When it is accompanied by a thorough and honest attempt to understand and adapt to the community, persuading a jury becomes a lot more controlled than a roll of the dice.