Selecting the Best Form of Jury Research

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Jury consulting is rapidly becoming popular in the legal industry and courtroom but have you ever wondered what exactly jury consultants do or why you should consider using one?

Check out our latest article, The Who, What & Why of Jury Consultants, written by Opveon’s president, April J. Ferguson, M.S..

The Who, What & Why of Jury Consultants

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I recently presented on this exact topic at the OBA’s Insurance Section Summer Meeting. He discussed why and how litigation can benefit from technology and visuals regardless of whether the audience is a judge, jury or other decision makers.

Check out part of the presentation on SlideShare – Better Faster Cheaper Litigation.

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This exact scenario came up in a recent trial where we had audiovisual evidence that was presented in court, but that we also wanted the jury to have easy access to while they decided our case.

The truth is audiovisual evidence is becoming more and more prevalent.

In the last year, we have seen an explosion in the amount of surveillance footage, dashcam footage, audio recordings and deposition video being used at trial.

It goes without saying that audiovisual stimuli is more effective than written words alone. And these pieces of evidence are easy to present to a judge, jury or other decision maker using tools like TrialDirector.

The problem is, how do we allow jurors and other decision makers to view this evidence when they are deliberating? Not every courthouse has a system that they can wheel into a jury assembly room and even if they did, the vast array of combinations of DVDs players, televisions and remote controls make the process cumbersome at best.

In one recent case, we ran into just such a dilemma. We wanted our jury to be able to watch footage from three separate dashcams to determine the outcome of the case. We wanted them to be able to slow it down, scroll through it frame by frame and make as informed a decision as they possible could with the best evidence that we had.

What we came up with was an elegant solution utilizing an iPad Pro and the free app VLC Player. The audiovisual exhibits were then loaded onto the iPad in the App. Simple.

What wasn’t simple was the next part of the process – locking the iPad down so that the judge and all counsel were comfortable with what was being provided and ensuring that the jury was unable to access any other applications or the internet. This eliminated the ability for the jury to do any research or access any other functions of the iPad and it also eliminated the ability for anyone else to send information to the iPad and potentially influence their deliberation process.

Once the jury’s iPad was locked down and we finished closing arguments and jury instructions, the judge asked me to give a brief tutorial in open court to the jurors on how to operate the iPad. As I stood there and explained how to use the app, every single juror leaned forward in their seats and paid close attention to not just what I was explaining to them, but also what evidence was being shown.

With that information and the iPad in hand, they went to deliberate. A few hours later, they came back with a verdict in our favor including punitive damages. I don’t think that the iPad in the deliberation room made our case, but it certainly assisted the jury in coming to an informed decision.

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The partnership between Opveon and Paulk will give both of their clients access to industry leading jury research strategies, extensive expertise and advanced technology, giving them a true edge when it comes to winning cases.

“Combining forces with a powerhouse like Joe is a real win for Opveon and its clients. This strategic alliance will help strengthen our practice by increasing our capacity and by adding the unique perspective of a another seasoned trial consultant,” says April J. Ferguson, Opveon’s President and head of their jury research practice.

Trial attorneys across the globe are continually seeking new strategies to better serve their clients, making consultants like Ferguson and Paulk vital to any trial team. Opveon is a boutique national firm that delivers end-to-end litigation support and consulting solutions to its clients in every stage of litigation. It’s team combines over 100 years of experience in litigation, has been involved in thousands of cases all across the country, and have provided consulting services in more than 500 trials. Opveon has quickly built a reputation of being one of the industries most well-rounded litigation support and consulting firms.

Paulk is an industry leader in his own right. As a former trial lawyer, and now CEO of one of the most well respected ADR firms in the southwestern United States, Paulk understands the dynamics of litigation and the importance of a solid trial strategy — which is perfected by pretrial jury research. “I am honored to be working with Opveon to help provide an added level of service to the legal community. Through my experience as a trial attorney, mediator, and jury consultant, specializing in pre-trial research for over 10 years, I have learned that nothing is more important than understanding the concerns and issues your jury will discuss and consider BEFORE they begin deliberation. Crafting and presenting the most compelling strategy for your client’s case is how you win. Working with all the disciplines Opveon has to offer is a privilege and one that will serve our clients well.”

Opveon’s goal has always been to make litigation more efficient and litigators more effective. Our team of trial consultants, technology gurus and litigation support professionals deliver on that goal each and every day.

In addition to jury consulting services, Opveon’s list of services include:

• Trial Technology Consulting
• Graphic Design/Demonstrative Creation
• Strategic Litigation Consulting
• Witness Preparation
• Jury Selection
• E-Discovery Consulting
• Litigation Support
• Contract Paralegal Services
• Video Production Services – Clip Creation, Day in the Life Videos, etc.
• Production Services – Copying, Scanning, Printing, Demonstrative Exhibits, E-Discovery Processing & Hosting
• Court Reporting & Legal Video

Paulk will maintain his national ADR practice through Dispute Resolutions Consultants, which has offices in Tulsa and Edmond.

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The case theme establishes the framework in which you will present your case. It is a finely tuned narrative that involves buzzwords, slogans, phrases, and analogies. Themes personalize the case for the jury and allow the attorneys to tell their story in a way that resonates — giving jurors the ammunition they need to be an advocate for that attorney and their client in the deliberation room.

At Opveon, we believe that focus groups are the perfect venue for testing and developing themes. When conducting a jury research project, our seasoned consultants work with counsel to learn the facts of a case. We review transcripts and video deposition testimony to get a flavor for the believability and credibility of witnesses. We read expert reports. We review the physical evidence. We assist with the creation of graphics and demonstratives. From there, we work with the attorneys to put together what we believe to be a compelling case theme. Once we have a working theme [or two] in place, we conduct a focus group to test the theme. Is it compelling? Does it carry weight? Was it motivational and/or inspirational? Or was it a total flop?

We like to think we are good at theme development — and we are! But every now and then, what our experienced consulting team and their trial team clients find persuasive is not necessarily compelling to the focus group panel. Without this type of research, it would be impossible to know what’s persuasive to group of people who are demographically similar to the actual jury panel.

By way of example, in one particular personal injury case, we worked with our client to develop a case timeline. Both our consulting team and our client believed the complete timeline of events for the day in question was relevant and important. What we learned from the focus group was that only a couple hours, in the middle of the day, were important to them. They didn’t care about what happened at 9:00 that morning or what happened at 6:00 that evening. They only cared about the events that occurred between 11:00 – 1:00. This information allowed us to fine tune our theme and tweak the presentation in such a way that we were able to spend much more time on the key time period versus having to cover the sequence of events throughout the entire day.

The takeaway is this: Presenting the most compelling case possible to the jury will put you in the best position to win. Develop a case theme. Develop it early. Focus group your theme and then tweak it based on the results of the research process. We think you’ll like the results.

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Sometimes, it just isn’t possible to condense the material as much as you would like to. In those instances, the goal should be to communicate all of the necessary information as succinctly as possible.

In one such matter, we were asked to assist by preparing a timeline to help communicate the entire span of events that took place from the initiation of a patient’s treatment through their preventable and untimely death. The length of the timeline was one concern, but we also had multiple people: the patient, his wife, three separate treatment facilities along with multiple physicians and nurses. Complicating matters further were the descriptions of the actions that took place along the way.

Our demonstrative, though seemingly complex, is actually very succinct and it communicates the entirety of the case in one, common demonstrative. The events are color-coded to match the facility. The inner ring denotes the action that the patient – our client – took, the outer ring contains the actions of the respective medical providers and the notes altogether outside of the circle are anecdotes and additional explanations. Along the border of the circle you can also see dates and times that are in reference to the medical records that support our story.

It is a lot of information to take in, but our goal was to communicate it in bite-sized chunks so that we could walk through the events on one board as opposed to a long timeline.

Every case is different and therefore every demonstrative that we produce varies from the previous because we work to ensure that our ideas are communicated as succinctly as possible to the judge and jury. Give us a call to talk about your case and how we might be able to benefit your presentation of evidence.

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In one particular instance, our client represented a party involved in a contract dispute. The case involved the allegation that certain provisions of a contract were amended without knowledge of one of the contracting parties.

During the trial, our technology consultant was able to pull up the original contract and the modified contract on the projection screen, side by side, so that the witness could compare the two documents and explain the differences to the jury. Presenting the documents in this manner allowed for an efficient examination of the witness without having to flip back and forth between two pieces of paper and/or using bulky demonstrative foam boards.

Our client won the case. When interviewing the jury afterwards, jurors reported that the ability to see the two contract provisions, side by side, was key in their decision. They were able to easily follow the witnesses testimony and were persuaded by both the testimony and the side by side comparison of the exhibits.

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It may be as simple as asking your witness to wake up a few minutes earlier to avoid traffic when driving to the courthouse. But more often than not, there are a myriad of factors in play that are entirely out of your control and can sometimes feel as if the world is conspiring against you to obliterate your carefully crafted presentation of evidence.

Your troubles are compounded when your witness has to travel further than across town to get to your location. Airline schedules, airport security, luggage, car/taxi service and hotels add complexity to an already stress-filled situation. Not to mention all of the costs that go along with that travel.

In a recent bench trial in Washington County Arkansas, our team was asked to tackle these issues by allowing two expert witnesses to appear at trial and testify via video-conference.

We routinely provide video-conferencing services for depositions held in our offices. But that is a controlled environment where we have complete command over our equipment and internet connection. Offering the same services in a remote location would typically be a challenge, but because of our technological expertise, things went very smoothly on our end.

We setup a laptop, projector, microphone and speakers so that the witness could see and hear us clearly and everyone in the courtroom could see and hear the witness clearly. Both witnesses were able to login to our video conferencing platform with very little technical assistance.
The first witness to appear via video conference came through perfectly. She was in her office at her desk with her own headphones and a microphone. The connection was clean and clear. One of our clients even turned to us and said, “I wish my job was as flawless as that.”

The second witness was not as seamless. This was primarily due to the fact that she was unable to leave her home on the day of her testimony which relegated her to residential internet and wireless network connectivity. Her audio and video were delayed and jumpy and we needed to make an adjustment to ensure a complete record. Fortunately, our system allowed her to call in using her landline/cell phone so that her audio came through clearly while the video followed over the internet connection.

Even though we encountered a few challenges, the end result was a happy court reporter, a happy client and a happy judge that were all able to see and hear the entirety of each of the expert witness’ testimony. On top of that, our client and her staff avoided the seemingly endless process of dealing with travel logistics. Not to mention the many billable hours that these expert witnesses would have incurred and billed for along with the expenses of travel.

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