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Frequently Asked Questions

  1. Where do you get the jurors?
  2. Is jury research confidential?
  3. Do the research jurors sign confidentiality agreements?
  4. What if the other side learns that we did jury research?
  5. Have you ever had a research juror show up in the venire?
  6. Where do you do the research?
  7. Do you videotape the deliberations?
  8. Do the jurors fill out a questionnaire?
  9. Can we watch the deliberations?
  10. Do the attorneys sit in the courtroom during the research trial?
  11. Should we do the research at a research facility or at a hotel or conference center?
  12. How much does jury research cost?
  13. Do you use those measurement things that show how jurors feel?
  14. Does jury research work?
  15. If we put shadow jurors in the courtroom, won’t the other side make an issue of it?
  16. What’s the least expensive trial research?
  17. Can jury research help me make a jury selection profile?
  18. Which juror is better for me? Male or Female? Young or Old? White or Black?

1. Where do you get the jurors?

The method for getting jurors depends often depends on the research location. Research can be conducted at hotel or conference facilities or at the facilities of a focus research company. TSI has its own proprietary method for recruiting jurors, a method that results in a panel of people who have rarely if ever participated in focus groups. We use our recruit method whenever we conduct research at a hotel or conference facility. Sometimes we conduct research at dedicated focus-group research facilities. These facilities are used by companies to explore consumer reactions, by Hollywood to explore audience reactions, and by politicians to explore voter reactions. These facilities all generate lists of people who are willing to participate in focus group research, and they will call from this list to fit the demographics needed for the research. This is a reliable method for recruiting jurors, but despite the best efforts to eliminate it, it can call in “professional” focus group participants. There are people who make a living, or at least have a second job, as focus group participants. They are very reliable about attending and the research facility will always call them if they get in trouble at the last minute. The pricing structure for research at a focus group facility is such that the research becomes very costly unless you use their recruits.

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2. Is jury research confidential?

Jury research is attorney work product and the analysis of confidentiality falls within the attorney work rules in your jurisdiction. The answer depends on what kind of witness testimony, if any, that you show to the research jurors. We have researched and not found any recorded cases in which an opposing party has been allowed discovery on jury research which contained only presentations by attorneys, summaries of expected witness testimony, or testimony from video depositions. If the research shows witness testimony, then the question becomes one of whether the testimony comes from a party or a non-party. Testimony from a party is always protectable. Statements from a non-party at a research trial will be as discoverable as any other statements provided to you at your office by a non-party.

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3. Do the research jurors sign confidentiality agreements?

Yes. In writing, they promise not to disclose the results of the research at any time or to anyone. More importantly, the manner in which we relate to our research jurors and the education we give to our jurors about confidentiality makes it highly likely our research jurors will keep honor the promise. In over 15 years of conducting this research we have not had a single instance in which a research juror breached their confidentiality agreement.

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4. What if the other side learns that we did jury research?

We hear this concern only from attorneys who have not used jury research. Experienced attorneys often tell the other side they’ve done the research. During settlement, experienced attorneys and adjusters tell the mediator that research was done, and they often disclose the results. The concern should not be around whether the other side learns you have done research. It should only be about controlling what the other side learns about what you have gotten from the research. What we don’t want is any of the research jurors talking with the opposing counsel, and as we explain above, we’ve not had a single instance in which a research juror breached their confidentiality agreement.

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5. Have you ever had a research juror show up in the venire?

No. We’ve not had it happen to us in over 15 years, but attorneys have told us it has happened to them. We take precautions. None of our research jurors can have a pending summons. Of course, if there is a long period between trial and the research, they could get summoned after the research and before trial. We always provide counsel with a list of the research jurors so they can match it against the venire. In those cases where attorneys have told us they had a research juror show up in the venire, they have just told the judge that they had retained this juror to provide some services for them in the case and the judge has excused the juror.

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6. Where do you do the research?

The research is done in or near the jurisdiction. When it comes to juries, there are red states, blue states, and counties in those states with all the colors of the rainbow. The choice of location often depends on the degree of concern about confidentiality. In small counties, people know one another and they talk. While we’ve not had a single instance in which a juror has breached their confidentiality agreement, there is no doubt that the risk is greater in a small county than a county with a large population. If the case is in a small county, it’s always possible to select a location near enough that you get the same local color but yet far enough away that any local talk won’t make it to the jurisdiction.

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7. Do you videotape the deliberations?

Yes. Using the latest digital video.

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8. Do the jurors fill out a questionnaire?

Yes. Jurors always fill out a questionnaire before they know anything about the research, after they have heard the opening arguments from the attorneys, at various key points in the trial, and then after closing arguments. The questionnaire contains both open-ended questions in which jurors write out their thoughts and closed-ended or multiple choice questions.

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9. Can we watch the deliberations?

Yes, of course. At a hotel or conference center, we run a video feed to an adjoining conference room. Focus group facilities have rooms with one-way mirrors. In addition, we can prepare edited DVDs of the deliberations or focus group discussions.

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10. Do the attorneys sit in the courtroom during the research trial?

You can sit in the courtroom or you can sit in the observation room. We have not found that the attorney’s presence at a table in front of the jurors makes the research trial any more or less “real” to the research jurors. A research trial is, first and foremost, a learning experience, so we recommend you sit wherever you feel you will learn the most. We have found that attorneys generally believe they get the most out of sitting in the back of the courtroom or in the observation room where they can discuss the case as the trial progresses.

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11. Should we do the research at a research facility or at a hotel or conference center?

The costs are either the same or slightly favor doing the research at a hotel conference center. A hotel or conference center gives you much larger rooms, which are better for presenting the trial and far more comfortable for the research jurors. In a conference center, jurors sit classroom style at tables. At a focus group facility, jurors usually sit on folding chairs. It’s easier to pay attention when you’re comfortable. More important, at focus group facilities, the video quality is rather poor. At conference centers or hotels, we can use our media services and get high quality video of the jury.

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12. How much does jury research cost?

Somewhere between $0 and whatever you want to spend. Free of charge, we will review or hear a case summary and give you our opinion of a jury’s likely reaction to the case and our opinion about jurors’ likely to favor and disfavor your side. This is jury research in that our years of hearing from jurors inform our opinion about how they will react to a case. On the other end, we have conducted a ten day research trial with 90 jurors who deliberated in ten different juries.

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13. Do you use those measurement things that show how jurors feel?

Yes, but. These are called Real-Time Measurement (RTM) systems. We do use these and are glad to make them available to you. However, we do so with the caution that it usually plays to mixed reviews. The most frequent feedback we get about it runs along the line that it “didn’t give us as much as we expected, but what it did give us was really helpful.” We have found RTMs of to have their greatest value when the research includes live testimony from an actual witness.

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14. Does jury research work?

Yes, if it’s done right. First, let’s define “work.” Our jury research always works if you define “work” as “illustrating how the jurors will think about the case, the story lines they will impose on the facts, the lines of reasoning they will use in arriving at a verdict, and the feelings they will have about the case.” Put more simply, attorneys who have done research with us and then interviewed jurors after the trial always report that the actual jury and the research jury “talked about the same things in the same way.” Another definition of “work” is, “Does the research accurately predict the verdict?” The point of trial research is to improve your chances of winning. So the better question is, “Have we done better at trial because we’ve done the research.” To this, the answer is definitely “YES!” Very often, we have won cases at trial that we lost at the research while we have rarely lost a case at trial that we won at the research. Just like in a political campaign, a big part of winning is creating a feeling of momentum, creating the sense that you’re the winning side. Attorneys that have done the research with us say that, at trial, they “come off the starting box faster,” they know where they’re going and they get their more directly while the other side, in comparison, “looked like they were fumbling and just feeling their way along.” In addition to everything they learned from the research, the side that has done their research looks and acts like a winner.

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15. If we put shadow jurors in the courtroom, won’t the other side make an issue of it?

No. First of all, as a practical security matter, you have to tell the judge you will have observers in the courtroom. As part of telling the judge, you make a motion in limine to exclude any comment about the shadow jury. We conducted over 30 shadow juries and not one judge has failed to grant this motion.

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16. What’s the least expensive trial research?

The least expensive trial research is either our web-based or our teleconference research. Our web-based research mounts brief video case statements on a web-site accessible only through a secure key. Jurors are screened and then access the web site, view the case, and give their reactions. Because jurors can go through the research at any time, this design has the advantage of getting a large number of jurors to view the case, but there is less opportunity for discussion. Our teleconference research recruits two panels of jurors, one for a morning session and one for an afternoon session. The jurors arrive at a conference room and are taken through the research by a consultant via webcam. This design has the advantage of gathering the richness of the jurors’ discussion and it offers the possibility for getting enough jurors to feel confident about the statistics generated from the jurors’ responses to questions.

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17. Can jury research help me make a jury selection profile?

Yes, a profile is a powerful jury selection tool and, as with any power tool, you need to understand how it works or you can get hurt using it. A scientific jury selection profile requires a sample of at least 50 people, preferably 60. You need this number because the profile you are trying to draw is a picture of the extreme 25% tails of the distribution. That is, you want to know, “Out of the, say, 40 jurors in the venire, who are the ten worst and who are the ten best?” You need at least 15 people to compute a reliable statistic, and you need a pool of sixty people to draw a sample of 15 who are the best and 15 who are the worst. You must always use your professional judgment and experience during jury selection, but the amount of professional judgment you use in jury selection must increase as your profile sample drops below 60.

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18. Which juror is better for me? Male or Female? Young or Old? White or Black?

Simple demographic divisions like this have little predictive power in jury selection. For example, in the last few elections men voted for the Republican candidate by a margin of about 55% to 45%. This is considered a huge demographic difference and yet it basically to a coin toss when we try to pick the presidential preference of the next man through the door. If we pick an all male jury of 12 to elect the president, the vote would be 6.5 for the Republican and 5.5 for the Democrat. You need to know more about the juror to make a decision. Our research over the years has found a personality profile that tends to favor one side versus the other. In general, jurors favorable to the plaintiff tend to be static or erratic while the jurors favorable to the defense are often established. Plaintiff jurors are often people who have not put together a life that they find sufficiently meaningful or satisfying. They have had trouble fitting in with mainstream culture yet neither have they been successful forging a non-conventional forward moving lifestyle. Rather, their lifestyle is organized around a resentment and cynicism. They are tend to hold society responsible for their lack of success. In their view, unfairness has held them back. Consistent with their view that society is somehow systematically organized to be unfair, they are quick to see conspiracies and cover-ups. Their personal and occupational lives have not gelled into a coherent, productive, advancing pattern. They move from job to job, one job no better than the one before or, in the alternative, they stay in the same job for a long period with no discernible advancement. Such jurors are very amenable to the argument that we “need to send a message” and apt to see their jury service as one of the few opportunities in their life to do something important. Defense jurors, on the other hand, have managed to establish a more functional occupational and family circumstance. There is a progressive quality to their occupational and family life. In their family life, there certainly may be divorces and separations, but the family history falls short of the chaotic multiple families and odd configurations that characterize an erratic lifestyle. In their occupational life, there may be frequent job changes, but there tends to logic to the changes rather than simply movement for movements sake or a movement out of boredom. They take more personal responsibility for the successes and failures in their life and their view of society is that its, on the whole, more fair than unfair. They have a much greater appreciation for the fact that society advances by growing and building, which makes them far less amenable to a simplistic punitive message to hurt the defendants and more appreciative of the ways the defendant contributes to society.

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