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By Christina Marinakis, J.D., Psy.D., of Litigation Insights
While celebrating the resolution of a recent case, the lead trial counsel commented that his only regret was not conducting the jury research earlier in the litigation. To his credit, the firm was brought in to work on the case just seven weeks before jury selection, but his insights were well-founded. In fact, parties are increasingly capitalizing on a form of jury research that we call Initial Case Evaluation (or ICE—because a catchy acronym is much easier to remember).
The ICE research model is conducted very early in the litigation process, preferably before conducting discovery and taking witness depositions. While most jury research is deductive—seeking confirmation of whether your client’s case story, theories, themes, and arguments will resonate with the jury—the ICE is an inductive research model. That is, observations of the jurors’ initial reactions to the broad issues in the case are used to develop your client’s case story, theories, themes and arguments. By design, the research is open-ended and exploratory. We first learn about jurors’ case-relevant expectations and implicit assumptions, which guides how they will interpret the evidence. We then present them with the undisputed case facts and elicit what jurors want or need to know in order to resolve the case: What questions do they have? Why are those questions important to them? What witnesses do they need to hear from? What questions would they ask those witnesses? What documents would they want to see? The questions that jurors pose during this process are used as a roadmap to what is important to them—and what will be important to jurors at trial.
At the same time, we hear juror-initiated themes develop and get repeated by other jurors. These themes become the “headlines” of your case story, helping jurors to understand, organize and remember the information that benefits your client, while connecting complex evidence to jurors’ experiences and beliefs. Thus, instead of telling jurors the client’s case story as devised by a group of lawyers, we allow jurors to help craft the story themselves, making it all the more likely that it will resonate with the real jurors at trial. Then, if desired, those juror-derived themes and arguments can be re-tested at a later date in the traditional mock trial or deliberation group formats—after the evidence and testimony has been collected.
If some discovery has already occurred, or if there is video deposition testimony available, this evidence can be presented to jurors within an ICE model through issue-specific modules. When this happens, the trial team can obtain feedback about specific documents or witnesses, which can inform settlement strategy by estimating exposure and previewing just how important this evidence or expert opinion will be.
Beyond the obvious benefits of creating jury-driven themes and arguments, the ICE process allows parties to develop core themes for cases early enough in the litigation process that it can guide discovery and help your witnesses incorporate those themes into their deposition testimony. Ultimately, this helps reduce costs by focusing the discovery process—the most expensive aspect of litigation—on the issues and evidence that matter most, rather than on extraneous details that aren’t important to the triers of fact. Likewise, it also ensures that these key pieces of evidence and testimony are elicited the first time around, rather than having to re-depose your witnesses or obtain amended expert reports later down the road. ICE research also helps parties use their resources efficiently because it leads to a well-defined case strategy early in the litigation. We use the jurors’ questions to prepare key witnesses before deposition and to know what questions need to be asked of opposing witnesses. Rather than using a shotgun approach to collect every document and ask every question that could remotely be related to the case, resources are directed only at what matters, with a focused goal in mind.
Conducting ICE research also helps minimize risks by reducing surprises. Specifically, witness preparation following ICE research helps keep your witnesses’ testimony tethered to the case themes and avoids the negative “sound bites” that opposing counsel will use against your client at trial. Counsel who have used the ICE process to inform witness preparation have told us that the results have helped them to be in a stronger negotiation position going forward for mediations, settlement discussions and/or at trial. For example, when one plaintiff attorney failed to elicit the damaging sound bites he was expecting at deposition, the plaintiff’s demand dropped considerably, and the parties were able to reach a settlement shortly thereafter, not only saving the client in settlement costs, but also eliminating the need for continued discovery and litigation expenses.
It’s clear that conducting jury research early in the litigation process can have tremendous benefits, but another that hasn’t been mentioned is the low cost of this type of research compared to verdict-driven models such as mock trials or deliberation groups. Because the ICE process is not designed to predict verdict outcome or potential exposure to damages, it is not necessary to recruit high numbers of mock jurors to participate, and there is no need to rent multiple rooms for the jurors to break out into deliberation groups. Also, depending on the stage in the litigation process and the amount of information to test, an ICE project can be as short as a few hours. Thus, the ICE research is suitable for all types of cases, whether it be a bet-your-company case or a matter with low exposure.
The next time you’re presented with a new case, consider whether an Initial Case Evaluation could help guide the trial preparation process for your team. Doing so might prevent you from being the one to say, “I wish we would have known this earlier.”