All mock juror research involves asking a sample of people to think like real jurors and share their beliefs and opinions about a case. This research takes many forms – surveys, focus groups, mock trials, and targeted studies on opening statements, closing arguments, or witness perception – to name a few. But the underlying goal is always to learn something about a group of unknown people (the actual jurors) from a group of people who can be studied (the mock jurors). And the overarching purpose is to generate data that will help attorneys make good strategic decisions about a case.
To accomplish that purpose, mock jury research needs to correspond well to the trial environment.
Specifically, it needs to be highly representative of that environment in at least three ways:
Mock juror studies have high information representativeness when they include all important facts and approximate the proportion of favorable/unfavorable information expected at trial. Studies have high participant representativeness when the mock jurors have attitudes, values, and beliefs similar to the actual jurors. And mock juror studies have high presentation representativeness when the case is conveyed with minimal distortion or alteration that systematically favors one side (usually the side conducting the research).
Taken together: A mock juror study can provide considerable strategic value when the important and well-calibrated information about a case is presented with minimal bias to a group of people who are highly similar to the actual jury.
Designing a sound mock jury study that yields valid, actionable data requires a careful and systematic process. And it requires avoiding several common pitfalls along the way:
- Presenting the wrong information.
No mock jury study can feature all the relevant evidence likely to come out at trial; choices have to be made. Omitting key information from the case summary, or including information that is essentially irrelevant or confusing, makes it difficult for mock jurors to view the case as the actual jurors will. Another potential mishap is presenting the wrong mix of information in the case summary. Both of these errors can result from a natural desire to focus on the most contentious or disputed aspects of a case from the attorney perspective—not necessarily what is most important to jurors.
- Studying the wrong people.
Another way to negate the insight gained from mock juror research is to study people who differ markedly from the actual jury. It can be tempting to view mock jurors as commodities and study whoever is readily available. But people with similar demographic characteristics, and those living in the same community, tend to have shared life experiences that shape their views about the world. Life experiences and values in turn provide a lens for interpreting the evidence at trial. Mock juror research provides the most insight when the mock jurors are demographically similar to the actual jurors.
- Slanting the information presented and/or questions asked.
Both of these are forms of bias. Presenting information fairly is often very challenging, and writing a case summary represents one of the biggest openings for presentation-related bias. A good case summary is brief, cogent, and unbiased in terms of presenting the key facts and best arguments. Condensed verbal synopses of the opposing side’s case can be especially problematic. Word choice and phrasing can cause considerable “sway.” Bias can also be introduced by asking loaded questions with clear “correct” answers. Answering the question serves only to prime the facts or logic that make the answer obvious.
Getting It Right
Avoiding these pitfalls can yield a study that greatly informs case strategy—but how is that done?
Here are some ways to maximize the representativeness of mock juror research:
|✓||-||Include all critical facts in the case summary and calibrate the mix of favorable and unfavorable information so that it reflects the balance of the likely evidence at trial.|
|✓||–||Limit information in the case summary to what is truly most important for the study’s purposes. Avoid including unnecessary information that merely serves to convolute and distract.|
|✓||–||Present study information in the same form as it will appear in court to minimize presentation bias (e.g., use actual demonstrative exhibits or show video clips of recorded deposition testimony).|
|✓||–||Avoid asking “loaded” questions that simply serve to bias subsequent judgments.|
|✓||–||Scrutinize the case summary to identify where bias is creeping in—and ideally have someone do this who is both disinterested and highly knowledgeable with respect to the case.|
|✓||–||Recruit a large sample of mock jurors that has a similar demographic profile to the trial venue.|
Designing a mock juror study that corresponds well to the trial environment on all three dimensions can be challenging. But it can be done. Above all else, to really help attorneys do well for their clients, mock juror research needs to be highly representative.
Dennis Devine is an organizational psychologist and litigation consultant with ThemeVision LLC.
He is the author of Jury Decision Making: The State of Science (2012), a book that summarizes and integrates the scientific research on juries.