By Edward Schwartz, Ph.D. & Eric Rudich, Ph.D.

Blueprint Trial Consulting

Since the outbreak of COVID-19, courthouses around the country have been shut down or their trial dockets have slowed down drastically.  Travel has been curtailed and in-person focus group studies and mock trials have essentially come to a halt.  Meanwhile, mediations continue to be scheduled and trials are calendared for next year.  With many lawsuits moving forward, we continue to assist our clients with evaluating trial strategy and have conducted over 30 online jury exercises over the past several months.  We have conducted this research to test liability, fault apportionment and damages issues to help our clients assess their cases for both settlement and trial purposes.

The goal of any online jury research exercise is to provide actionable strategic recommendations based on sound study methodology, implementation, and interpretation.  The research results must accurately reflect jurors’ views of each side’s strengths and weaknesses in support of those strategic recommendations.  As the adage goes, “results may vary” due to the choice of methodology.  Based on our collective experience, having conducted over 150 online jury research exercises, this article provides guidance on best practices for conducting this type of research.

Recruiting Mock Jurors

We have always recruited more respondents than we need for research because it is common for at least a few folks not to show. In the current environment, another concern is the possibility that a respondent encounters technical issues that prevent them from being able to fully participate in the study. To minimize the likelihood of such problems, we run “tech tests” for all participants a few days in advance of each study. Our technicians make sure that each mock juror has a functioning webcam and audio setup. In addition, we confirm that each person has a fast and stable internet connection.

When online jury research emerged as a realistic option almost a decade ago, one concern was that home-based internet connectivity was a luxury of the rich. Today, close to 90% of American homes have a broadband internet connection. That said, it is still critical to include questions about internet connectivity on all recruitment screeners so that recruiters meet all demographic targets with confidence that everyone recruited is likely to be able to participate.

Internet connectivity is only one barrier to participation. For a study to run smoothly, with confidence that all participants are able to understand and process all the information presented, each mock juror must have access to a large screen. While we do allow mock jurors to participate on a full-sized tablet, we dismiss people who only have a phone or small tablet. It is just not possible to be fully engaged with the material on such a small screen.

Minimize distractions

Those of you familiar with in-person jury research know that it can be challenging to keep respondents focused on the task at hand. Now, imagine trying to do so while each person is sitting in their own home during the pandemic lockdown. In addition to checking in advance the computer equipment and internet connection of each participant, we make sure that they have a quiet, distraction-free place in which they can hunker down for the duration of the study. Even with this advance planning, there is always someone sitting in their kitchen when a family member wanders through to grab a sandwich out of the refrigerator. A certain amount of flexibility and understanding is required.

We encourage our participants to use headphones to minimize the distractions from noises inside their home or on the street outside. We also ask all of our participants to turn their phones completely off while the exercise is ongoing. When participating in person, respondents are generally good about putting away their phones, in part because they know the researchers are watching them carefully. When mock jurors are on their own at home, it is necessary to be more insistent about putting away all electronic devices not being used for the study.  Our technicians are also vigilant during each exercise to keep an eye out for any mock jurors who appear to be focusing on extraneous tasks. They will typically use private chat or text messaging to admonish participants to avoid public shaming and possibly distracting other jurors.

Managing observers

Without one-way mirrors or dedicated observation rooms, researchers need to decide how to allow observers to watch an online study without creating a distraction for the mock jurors. We have found that our study participants are not affected by having observers in the videoconferencing rooms, so long as those observers have their cameras and microphones turned off. Our technicians adjust the session settings so that the windows for non-video attendees are not visible on screen. As such, unless a juror were to take time to open the participant list, she would not know that several additional people were in the session.

Individual level questionnaires

Most videoconferencing platforms include some form of participant polling. They are generally fairly intuitive to use, both for researchers and subjects. Similar to in-person studies, the participant polling can also be shared with attorneys and observers during the jury research exercise.

Online Deliberations

Online jury research has been around for nearly a decade. Until the pandemic forced most people into isolation, many litigation consultants tended to avoid attempting to run mock trials online, preferring to utilize the platform for targeted focus group studies. The main reason for this differentiation is the difficulty of replicating the dynamics of deliberations for people who are not in the same room. In addition, as many respondents were uncomfortable with videoconferencing technology, online platforms that used this technology tended to artificially skew discussion time towards those who were more technologically literate and experienced.

The “work from home” culture that has accompanied the COVID-19 pandemic has largely eliminated concerns about running mock trials online. First, virtually everyone now has experience with videoconferencing technology. As early as June of this year, over 90% of participants in our studies were volunteering that they had participated in previous Zoom calls. We now see that everyone in our studies is comfortable changing their settings as need be, muting and unmuting themselves, and speaking clearly enough to be heard by fellow jurors.

As people become more experienced conducting professional and social interactions over the internet, they become more adept at doing so. We see that online deliberations have become more conversational and informal than in the pre-COVID period. Mock jurors don’t raise their hands to volunteer opinions as often anymore. They have become more adept at referencing each other by name in their comments, since pointing at a fellow juror and using a pronoun no longer does the trick.

Consultant Experience

Perhaps the most important component to any jury research exercise is the consultants’ experience.   Any online jury research tool is only as good as the individuals designing and conducting the actual exercise.    An experienced litigation consultant will ensure that the research is designed to test the specific issues and to obtain the necessary information to make informed decisions.  Another key component to any jury research exercise is for the consultant to engage the mock jurors in a meaningful discussion to gain additional feedback about their reactions to the issues, parties, themes, and witnesses.  This discussion provides additional strategic information to the client.  Most importantly, an experienced litigation consultant is able to use their knowledge of similar cases in order to provide additional context for interpreting the results, developing compelling themes and storylines, and offering additional recommendations to the trial team.

Conclusion

During a period in which social distancing is necessary and travel is limited, conducting jury research online provides a useful tool as cases proceed to mediation and are calendared for trial.  As with in-person jury research, this option provides valuable insight into how to mitigate potential case weaknesses and how to improve our client’s trial strategy in a variety of ways.  Importantly, this research allows clients to assess litigation risk and case value.  With clients becoming more familiar with using such tools, it is clear that the frequent use of online jury research will continue into the post-Covid era.