Online Jury Research: COVID’s Effect on Juror Perspectives & Damages

How the Pandemic Affects Juror Perspectives
… and how to adjust your litigation strategy accordingly

By conducting a series of nationwide surveys, Magna consultants examined COVID-19’s impact on prospective jurors’ attitudes and beliefs. Let’s look at the facts:

In today’s world, many jurors feel the need to be the “guardians of the community” by forcing companies to change their bad behavior with large damage awards. Litigators and those in the insurance industry refer to these as “reptilian jurors“, who are responsible for the increasing frequency of “nuclear verdicts”.

Factors that drive up verdicts include:

  • Juror Vulnerability, Fear, Volatility, & Polarization
  • Rising Costs & Uncertainty of the Future
  • More Millennials on Juries
  • Bad Testimony or Misidentification of Corporate Representatives
  • Anti-Corporate Bias – “Profits over Safety”
  • Not Setting a Floor or Providing a Low Damages Anchor
  • Not Addressing Key Issues/Themes in Jury Selection/Opening


Our research has shown the below trend in recent juror perspectives:

Now more than ever, it is important to know how juror perspectives changed in your specific venue for your specific case issues.

It’s not a question if the pandemic will affect your cases… it’s a question of how it will affect your cases.

In general, many potential jurors now are more vulnerable – both health-wise and financially – than pre-pandemic, which can make people more plaintiff-friendly. However, depending on the venue, the most vulnerable, most risk-averse (i.e., most plaintiff-friendly) may be less likely to show up for jury duty or to be seated on a jury at present.

Luckily, there are some research tools to answer this question and give you the current data you need to adjust your litigation strategy.

Test Your Damages
with JuryEvaluator

What is your case worth now? JuryEvaluator offers a scientific and statistically significant damages assessment for your ACTUAL CASE from your ACTUAL JURY POOL. This research will consider the effect of COVID-19 and current media climate, to provide insight into your case risk, exposure and value.

  • Research conducted in your case venue using your actual case facts
  • Research captures present-day surrogate juror attitudes and biases
  • Statistical analyses provide a reliable range of potential damages if the case went to a jury trial (economic, non-economic & punitive)
  • Optional Juror Profiling analysis

Online Focus Groups
with JuryConfirm

How has COVID impacted juror perspectives in your venue? Test your themes, storylines, social climate & more with JuryConfirm, Magna’s patented online focus group platform.

  • Evidence analyzer powered by AI
  • Live attorney presentations with limitless capabilities
  • Simulation of court room environment with interactive avatars and live video feed of jurors and attorneys
  • Live (video) juror deliberations with more panels than ever available before
  • Real-time results: Fully-customized questionnaires, polling & presentation feedback
  • Detailed reports featuring case evaluation, theme development, and jury profi­les

Nationwide COVID-19 Study Results

Magna Legal Services conducted a series of nationwide surveys to assess evolving changes and shifts in juror perceptions in this brave new world.

Study includes 5,000 respondents
& 100+ questions about:

  • Technology
  • Finance
  • Law Enforcement
  • Insurance
  • Life Sciences

Learn about our findings:

  • Halo effect
  • Business Interruption Coverage
  • Reptilian Influence
  • Crisis Fatigue
  • Juror Vulnerability

Complete the form to download your FREE copy of Magna’s COVID Study results >>

Contact our 24/7 Hotline for a FREE Case Consultation: 877.220.1821

or, email us at CaseConsultation@MagnaLS.com, or fill out our contact form

Analyzing & Monetizing Construction Defect Claims

Virtually all construction or property related decisions should be made with costs in mind. But some people are afraid of math.

Regardless of whether you’re an attorney, insurance professional, property owner, or manager, you need to be able to focus on the “vital few” issues, and virtually ignore the “trivial many.” This means knowing how much things cost – not to the penny, but rather a reasonable approximation. The best place to start, when working to make smart economic decisions, is on the BIG expensive issues. You begin by chopping a project into logical parts, and estimating the cost of those chunks, so you can see the forest AND the trees. The earlier in the process you do this, the better.

Magna Legal Services hosted a webinar on January 27, 2021 (recording below), which featured expert panelists explaining the framework behind analyzing and monetizing construction defect claims.

“There’s a lot of parties involved [in a construction defect case]. You have to understand the structure and you have to speak the language… whether it’s the folks on the ground or in the board room, you have to be able to do both,” said Paul Danner of Goldberg Segalla.

Aileen Schwartz of Hill International, Inc. says she makes sure to bring in experts early on to prevent dragging out litigation. “I’ve had cases that were brought in and there were no damages against us. If there are no damages, there is no case”, she said.

If the case ends up going forward, it’s important that it is not a jury trial, Aileen noted, saying “nobody on a jury wants to listen to your construction defect claim. They’re falling asleep. You really need a judge who knows what you’re talking about to hear the cases.”

Every party wants to get the case settled sooner to avoid costly and timely litigation. Magna’s Scott Horwtiz said “Magna’s jury consultants are getting involved more and more on the early side of things to test theories and test themes to see if a small amount of money up front could take care of all of this”.

When preparing your case, organization is key. Pete Fowler explained the importance of starting with “a discreet list of issues — whether its one issue, or hundreds of issues.” In conjunction with the list of issues, Fowler utilizes “a sensible list of costs associated with each issue, and a sensible list of all the people who might be involved with each of those issues.” “It gets to be this big horrible matrix,” he added.

Watch the full webinar recording below to hear our expert panel break down these complex cases.

This webinar originally aired live on 1.27.2021

Webinar details:

Panelists:
Pete Fowler, Founder, Pete Fowler Construction
Scott Horwitz, Esq., National Director of Graphics Consulting & Trial Presentation, Magna Legal Services
Aileen R. Schwartz, Senior VP, Sr. Corporate Counsel US & Privacy Officer, Hill International, Inc.

Moderated by:
Paul S. Danner, Esq., Partner, Goldberg Segalla

Presented by:
Peter Hecht, Partner & Executive Vice President of Sales, Magna Legal Services

Learn more about utilizing trial graphics & tutorials for complex cases here.

Click here to view a list of more upcoming webinars & conferences.

Court House

Magna Mock Trial Contributes to Client Win on All Counts

Court House

In preparation for an upcoming patent infringement matter in the United States District Court, Central District of California, the Honorable Judge Josephine L. Station presiding, Magna Legal Services (“Magna”) conducted both a mock trial and hourly consulting services as the case moved towards trial. Legal counsel from the firm Russ August & Kabat represented Pavo Solutions, LLC, a South Korean company that manufactures USB flash drives. Ben Wang, lead counsel with Russ August & Kabat, represented Pavo.

Over the course of the trial, Magna acted in the capacity of a strategic litigation consulting firm, through one of its senior jury consultants, Dr. John Gilleland. Strategic litigation consulting involves a systematic approach to optimizing the jury selection process and helps to refine the trial presentation themes and strategy of one’s case. The jury consultant frequently draws on the information gathered in the pre-trial research effort for additional follow-up consultation, which in this case, included both witness communication training and voir dire/jury selection assistance.

Trial Background and Specifics

Pavo manufactures a USB flash drive with a patented swivel cover.  The suit alleged that Kingston Technology manufactured and sold a product with identical, patented elements.

The Mock Trial Process

Magna conducted a mock trial on behalf of Russ August & Kabat utilizing three (3) separate panels of deliberating jurors. These panels followed a full trial format in which they heard opening statements, key evidence including witness testimony and then closing arguments from each of the respective parties.

The detailed feedback from each of the three deliberation panels helped to guide Mr. Wang’s trial team in the refinement of their case structure and trial presentation strategies. The Magna research team made recommendations ranging from: high-level structural issues for the various trial arguments, down to suggestions for simplification of key witness testimony. If left uncorrected, even the smallest of these issues could have a material impact on the actual trial.

After the mock trial, Mr. Wang said, “This mock trial was particularly helpful; feedback and issues were spotted all the way down to the team’s organization. The feedback at the mock trial turned out to be (identify) a key issue at trial and we were prepared for it, so we managed to keep it out. Having it come up in the mock and forcing us to prepare our response to it, got the judge to say “no-go”.  If we had to do it on the fly, we might not have had the same result.”

Through the mock trial process, Mr. Wang was able to anticipate challenges ahead of time, giving him and his client a distinct advantage in the actual trial setting.

Focus on Voir Dire

Dr. Gilleland’s recommendations regarding voir dire topics were of particular importance when it came to the actual trial. Through the mock trial process, Dr. Gilleland was able to formulate and refine specific questions, which were likely to help identify each jurors’ probable verdict orientation. Mr. Wang was able to take these questions and apply them to the actual trial, resulting in a positive impact on the eventual decision. “It was helpful to have Dr. Gilleland here to provide a first draft of questions for the jurors,” said Mr. Wang following the completion of the trial.

Magna specializes in end-to-end litigation consulting. Through Magna’s consulting process, we help clients set the stage for any of their litigation needs, including: scheduling depositions, language services, medical record retrieval, social media surveillance, graphics/demonstratives, trial technology and jury/bench/arbitration research and consulting. To learn more about our jury consulting process, request a free copy of The Ultimate Guide to Jury Consulting, from our website or contact our offices to schedule a free case consultation of your own.

Jury Consulting Guide

The Viability of Virtual Jury Trials

This webinar originally aired live on 7.1.2020

In May 2020, a Texas court held the nation’s first jury trial via Zoom.

Magna Legal Services held a panel discussion, “Viability of Virtual Jury Trials”, which featured Judge Emily Miskel, who presided over that case, as well as the Civil Jury Project and other expert panelists, as we explore the plausibility of virtual trials.

View the video above to watch our panelists debate the pros and cons of remote trials, and explain in practical terms how these virtual proceedings have actually been carried out.

Panelists:
Judge Emily Miskel, 470th District Court, Collin County, TX
Judge Mark A. Drummond, Circuit Court Judge, 8th Judicial Circuit of Illinois (Retired); Judicial Director, Civil Jury Project
Christine Carbo Marziotti, Senior Litigation Counsel, Phillips 66
Jeffrey Tillotson, Esq., Founder, Tillotson Law
Daniel Wolfe, J.D., Ph.D., Senior Director of Jury Consulting, Magna Legal Services

Moderated by:
Terrell W. Oxford, Esq. Partner, Susman Godfrey LLP

Produced by:
Peter Hecht, Partner & Executive VP of Sales, Magna Legal Services
Canby Wood, Esq., Business Development Manager, Magna Legal Services

You asked, we answered!
Here’s some questions that viewers raised during the program:

Are jurors ok with just using a smartphone in the virtual environment? Can they see exhibits? What about running out of battery and data on their plan?

A:  Yes, most of the jurors used a desktop, laptop or tablet but can use a smart phone if needed. They can see exhibits but understandably they will be harder to see given the size of the screen on most smart phones as compared to a computer, and we heard about exhibits being presented in couple different ways: through a document sharing application as well as through screen sharing. If jurors are using a smart phone we encourage them to have their charger handy so they can keep their phone charged, and if they are not using an unlimited data plan we encourage them to access wifi.

Will this virtual jury selection make it more likely for people with the proper access and data to be called for this type of jury duty?

A: Jury selection will still be conducted as it always has through the Jury Plan in each jurisdiction.  However, having access to technology and data is one of the biggest concerns to ensuring a representative cross-section of jurors for virtual jury trials.

How can we ensure that the jurors and/or parties are not messaging each other in private messages?
How can we ensure the jurors are not attending the trial on one screen and googling the issues being presented on another screen or their phone, and essentially introducing extraneous evidence and biases into their deliberation process? 
Furthermore, should the deliberation process be recorded and have it be available to the court for an in camera review in case of a juror misconduct complaint?

A: The thought is that regardless of whether the trial is being held in a building or virtually, these are human nature issues and they exist in both environments and should be addressed the same way: jurors are admonished and trusted unless evidence is produced otherwise. Also you can tell by watching the participants on zoom whether they are paying attention and focused on the trial, their behavior can be watched and there are tools to determine whether they are focused and participating.

What was used and the process of showing exhibits, arguing for and against the admissibility, and eventually publishing to the jury?

A: Document sharing sites were agreed to in advance and used. And it was important to make sure there was an “IT quarterback” who managed documents as well as participants moving in and out of “rooms”.

Did you find the jury voir dire to take a comparable amount of time or significantly longer/shorter?

A:  The process was actually more efficient but did not significantly differ than what would have likely occurred if in person.

Have any of your pandemic-era trials been hybrid with the attorneys and jury live and all or some witnesses remote?

A: Yes, and it’s the worst of both worlds. It required a lot of set up in advance to ensure technology for both, ensure social distancing, etc. Better to either do completely remotely, or all in-person.

Do we have any data that would help evaluate how long a juror could stay focused during a trial that goes beyond a few days?

A: Mr. Tillotson will be releasing the data from his survey projects in July and this is one of the issues he will address.  

Question to Christine Carbo Marziotti, do you think there is anything appealable based on process?

A: Yes, on due process grounds.

View Judge Drummond’s (Civil Jury Project) newsletter here

Thank you to everyone who tuned in!
Don’t miss any upcoming Magna webinars or conferences:

Witness Preparation for Virtual Depositions

Witness Communication Training

Jurors consider themselves experts on people, so the impressions made by a witness can strongly influence a jury’s decision making.  This is especially true when such impressions are negative.

Witness communication training helps witnesses develop a deeper understanding of the themes, context, and purpose of their testimony.

In-person or online, witness preparation:

  • Reduces or eliminates witness anxiety
  • Clarifies the deponent’s role in the case
  • Helps deponents stay on message
  • Assists in developing a credible conversational tone
  • Identifies and mitigates any non-verbal issues, such as tics, fidgeting or eye-rolling
  • Provides techniques for effectively handling documents and exhibits

Consultants will also explain to witnesses jurors’ expectations for their testimony, and correct behaviors that get in the way of jurors’ positive perceptions.

Magna’s jury consultants help witnesses feel more in control of their testimony while adhering to the rules of testimony and to avoid being “advocates” for their side of the case.  We develop “safe harbors” that give witnesses structure and tools to deal with tough cross-examination questions.  The use of videotape feedback during witness communication training can often help a witness identify what the jurors may perceive.  These tools will allow your witnesses the opportunity to learn and practice strategies in order to best respond to challenging questions and deliver the most effective message at trial.

We use videotape feedback to help witnesses identify what the jurors may perceive. These tools will allow your witnesses to practice strategies for responding to challenging questions and delivering the most effective message at trial.

Defending a Virtual Deposition?

Witness preparation eliminates the added layer of anxiety from the virtual setting by:

  • Practicing. Deponents can feel “alone” without counsel, so a practice session with the platform can help diminish this
  • Reviewing procedures for pauses, objections, and exhibits
  • Instructing deponents where to look for the most natural and effective presentation (particularly if being recorded)
  • Familiarizing participants with the remote platform’s features (chats, mute, viewing exhibits, etc.)
  • Coaching on attire and effective posture

Magna Legal Services has been facilitating remote depositions for over a decade. However, many people are just now taking and defending depositions for the first time in a virtual format. While the Magna LitigationVision (MLV) platform makes remote depositions easy, there are some tips and tricks to help witnesses and attorneys perform well.

Magna’s consultants are experts in preparing witnesses and attorneys for virtual depositions. They will share their practical tips and logistical considerations, explain how remote depositions work and the platform’s capabilities, and will provide advice to attorneys.

Magna consultants will work with your key witnesses and provide them with performance feedback in a non-threatening context making suggestions regarding style, language, and demeanor. .

Witness Prep with a Magna Consultant

To book a witness prep session, or any of Magna’s services, you can contact us using the form below, or at 866.624.6221 or Scheduling@MagnaLS.com

Magna is platform agnostic! Please let us know if you have a preference for Zoom, Cisco, Webex, etc.

Virtual Deposition: Magna Legal Services

Is an Online Focus Group Right for My Case?

Thanks to courtroom dramas, the “CSI effect” and Netflix documentaries, there’s often an unrealistic evidentiary expectation in courtrooms. This makes it difficult for the average person to predict jury decisions in the modern world. By using online focus groups, it’s possible to remove some of this uncertainty. These focus groups provide the benefits of analytics in trial prep, and they can help you recognize and correct weaknesses in your legal strategy.

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How Shadow Juries Can Predict a Trial’s Outcome

peter-hecht

When Mark Calzaretta watches a jury, hearing evidence in a high-stakes lawsuit, it isn’t necessarily an impartial panel of citizen peers he sees. Rather, Calzaretta sees 10 human beings with emotional biases that, if studied diligently, can help lawyers predict, with startling accuracy, the outcome of a case, often before it is tried.

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Jury Research Tools: Jury Consulting & Case Evaluation

jury research tools

Despite months of trial preparation, there is one factor that litigators cannot really control: how the jury responds to oral arguments. Unfortunately, the jury’s point of view is ultimately what decides the case. Litigators need insight into how those decision-makers will likely respond to certain lines of argument so they can be the best advocate for their clients.

It has always been challenging to predict juror behavior, but that hurdle has increased with many people accustomed to fictionalized evidence protocols on television dramas. Lawyers face a barrier by having to bridge the gap between juror expectation and reality. Fortunately, there are a number of tools available for law firms to maximize their chances for trial success.

Jury Consulting: What Is It?

Jury consulting is a comprehensive service to gain insight into the perspectives of jurors in order to help attorneys to appropriately develop their trial strategy. In a competitive legal landscape, law firms face greater pressure to serve their clients to the greatest possible capacity.

In a trial setting, they are up against a firm on the other side who may already be using investigative techniques to get jurors on their side. Cases that proceed to trial may have high stakes, both for the plaintiffs and defense, leading lawyers to do what they can to win. Jury consulting has become a necessary part of trial preparation, not restricted to just large firms with well-known clients.

Magna offers jury consulting from all angles, employing extensive research and analysis to give lawyers the knowledge they need before, during and after jury selection. Magna’s work makes it easier to pinpoint potential juror biases, so attorneys do not simply make vague guesses based on their own knowledge of the case. Specifically, Magna offers:

  • Community perception studies
  • Change of venue studies
  • Juror profiling studies
  • Focus groups and mock trials
  • Witness communication training
  • Social media research and surveillance
  • Shadow juries
  • Jury Evaluator damages assessment
  • In-Court trial monitoring

In sum, Magna is part of the litigation team from the moment it becomes clear a case is going to trial. By gathering statistically relevant and perceptive information, Magna gives lawyers the tools they need to present their case effectively in a courtroom. Before the case even begins, Magna’s team helps attorneys to get to know their potential jurors, including those who may be less sympathetic to their client or cynical about the evidence presented.

Jury Evaluator: New Tool to Assess Damages

One of the most mysterious, and essential, aspects of a case is the amount of a potential damage award. Knowing what the jury may award is central to risk management and settlement strategy. Without deep insight into the perspective of the jurors, however, a damage assessment is largely guesswork.

Magna’s Jury Evaluator tool takes the guesswork out of damage assessment. Through a proprietary process, Magna is able to assess the reaction of real people from the jury pool to the specific case. Using a combination of real interviews and simulated analysis, Magna gives attorneys a figure upon which they can base their negotiations.

Learn About Jury Consulting From Magna

Magna is a trusted partner of law firms throughout the U.S. Jury consulting services help attorneys to build the strongest case for their clients, upholding their duty as advocates and raising their professional stature. To learn what Magna can do for your law firm, contact us today.

 

10 Signs Your Trial Needs Jury Consultants