By Thomas M. O’Toole, Ph.D.
We have officially entered the eighth week of the stay-at-home order in Washington State. Six days ago, our governor announced there would be no jury trials in the state until at least July. During this time, we have had at least a dozen cases across the country that were supposed to go to trial, but now await an uncertain future. In the next few months, we have another dozen cases that are supposed to go to trial, but those are uncertain, too, as courts will surely be dealing with enormous scheduling challenges. Fortunately, we have remained busy during this time while still benefiting from the opportunity to devote some time to reflect and explore new ways to approach our practice, not only out of concern for the COVID health issues, but also as part of our constant effort to improve the quality of our services. Among the many questions we have been asked, three, in particular, stand out. I will address each of these in this week’s blog.
1. How are you handling mock trials and focus groups during the lockdown? With several mock trials across the country on the horizon, the first question we have faced is how we are approaching jury research. Several firms in our industry have shifted to online mock trials and we have the resources to do so, partnering with an online provider that has extensive experience in this area. However, online research has its limitations and it is no substitute for a mock trial. In our experience with online research, we have found that it is best suited for the kind of exploratory focus group that you might conduct early in discovery to learn what potential jurors want to know about a case. Additionally, they are excellent for focused discussions on specific issues, for example obtaining feedback about a particular piece of evidence or gathering opinions about specific scenarios. They can also be helpful for gathering insights into how potential jurors view an industry or business and the likelihood that they would believe that the business in question could engage in the kind of behavior alleged. In fact, we have found them incredibly helpful in this regard.
The problems with online research arise when you attempt to have uninterrupted deliberations – in other words, you want to employ a mock trial methodology instead of a focus group methodology. It simply does not work in our experience. Think of a Zoom meeting where everyone is trying to talk over each other and, consequently, no one can understand anything anyone is saying. A smooth flow of information and/or exchange of ideas just never happens in this scenario. Just like in a Zoom meeting, you need a moderator to lead the discussion, which undermines the ability to obtain any reliable findings from a deliberation setting. In other words, when you have a moderator leading the discussion, it is very difficult to determine where the jurors would go if they were left on their own to make sense of the case as they would in an actual jury deliberation. It does not allow for opinion leaders to emerge and create momentum for one side of the other. You do not get a genuine deliberation dynamic.
In summary, online focus groups are an excellent way to obtain feedback about specific issues and can provide insights into the information potential jurors want related to your case, but they cannot recreate the deliberation environment that allows you to see and understand the process by which jurors reach their verdict.
2. How are you handling mock trials and focus groups once the stay-at-home orders are lifted? While the stay-at-home orders will eventually get lifted, that may not be enough to motivate a representative sample to attend a mock trial or focus group. Instead, future participants will need reassurance that we have taken the necessary precautions to protect their health. We have developed a lengthy protocol for accomplishing this, but a few of the highlights include:
- Recorded presentations instead of live presentations. This allows us to avoid packing 30 – 40 people into a live presentation room. With recorded presentations, they can watch them in their individual jury rooms in which there are no more than 8 – 10 people.
- Larger conference spaces. We are working diligently to find facilities that provide sufficient space in each room for the mock jurors to spread out while still deliberating as a group.
- Staggered start times. We are exploring the option of staggering the start times for each group. For example, one group might arrive at 8 a.m. in the morning, and the second group does not arrive until 8:30 a.m. and so on. With recorded presentations, this does not create any significant problems and prevents large groups at check-in.
- Individual room catering. For the time being, we are no longer providing a general meal area where all of the participants get their food. We will provide individual meals in each room and all will be individually boxed.
- COVID screening. We will also be adding questions related to possible COVID exposure, as well as symptom detection to our pre-screening and, then again to our re-screening on the day of the project.
3. What are you doing to examine how the pandemic might influence jurors? This is perhaps the most important research that we have undertaken during this period. We are in the process of conducting a large, nationwide survey examining how the pandemic has impacted jurors’ views on a wide range of issues. We have surveyed over 1,000 people to date and have taken a variety of approaches to data collection. First, we are fortunate that we have been conducting quarterly surveys on different litigation topics for the last four years. These provide pre-pandemic points of comparison so that we can really dig in and identify meaningful changes in how jurors look at different issues.
Second, we have asked very targeted questions about how the pandemic might impact the amount of damages jurors would award against different kinds of defendants or it impacts how they view lawsuits in general. We have included several open-ended questions to allow people to respond in their own words. Finally, we have asked questions about their willingness to appear for jury duty and for mock trials once the stay-at-homes are lifted so that we can start to get a sense of how the jury pool might change moving forward. We are in the process of analyzing all of this data and will post results soon.