Law360 (May 1, 2020, 5:05 PM EDT) --
Preparation for trial often involves putting issues and critical evidence in front of a group of people resembling the ultimate finders of fact. But gathering groups in close quarters right now is not a possibility based on current recommendations from health officials, so attorneys and consultants are turning to technology for alternatives.
Online testing of legal issues has been around for many years. What started as simple online surveys, somewhat akin to the telephonic surveys that have been conducted for decades, has now turned into much more complex exercises that can include a blend of video capability and written feedback.
From simple instruments that check understanding of fundamental issues to complex studies that mimic in-person trials, the possibilities to test cases virtually are virtually endless. The number of survey and video chat platforms available today has allowed for easy access to jurors in this time and in the future.
In addition to being a natural implementation of the moderated Q&A used by facilitators, participants in virtual mock exercises may also enjoy the benefits of the switch to an online format. Especially in the wake of the pandemic, with more people working flexible hours from home, experiencing furloughed employment, or unemployment, participants may be more available and eager than ever to share their opinions on complex legal cases.
Further, qualitative researchers have long looked to internet-based methods as a means to reach participants who are reticent to participate in person.
Perhaps the most commonly known virtual tool — online surveys — provides an opportunity to gather data from more participants than can typically be included in surveys administered in-person. This increased sample size can be useful in preparing for trial because a larger sample can often lead to a more diverse sample, and traditional statistical techniques, such as regression analyses, can be applied to understand the responses. As such, this larger sample can yield greater accuracy in profiling.
Like all research methods, online surveys do have some limitations: what the online survey offers in breadth it can lack in depth. That is, an online survey cannot be used to deeply understand how people react to each case-specific detail or how they process the entirety of the evidence.
The Focus Group and Its Close Cousin, the Witness Test
A focus group is a data gathering tool where a facilitator leads a group of demographically representative people through a series of discussion questions or topics and gauges their reactions. A facilitator is the key element of this tool.
A skilled facilitator can bring out opinions a juror may not immediately volunteer, which replicates the deeper analysis that emerges through deliberation. Because focus groups by nature involve one person talking at a time with a neutral facilitator leading the conversation, they translate naturally to a video chat format.
Anyone who has recently been on a video chat meeting knows that if more than one person talks at a time, the result is a jumbled mess of sound. A video focus group thus forces participants to slow down and listen to their fellow group members. Similarly, a facilitator can call on individuals from the group and hear their reactions.
A focus group is best used with a focused number of issues. It allows the group to delve deeply into each topic and develop a full understanding of the range of participant reactions.
Another way of collecting data points for an upcoming case is to test reactions to the people through whom your client's story will be told: the witnesses.
Much like a focus group, witness tests convert seamlessly to an online format. Even in an in-person juror format, witness tests are often performed with deposition testimony or recorded witness testimony. To ensure a balanced test, researchers rely on carefully selected clips from depositions that include questions where the witness is at ease (direct testimony) and uncomfortable (cross testimony).
When converting witness tests to the online format, mock jurors can still easily view these video clips and provide written or verbal feedback. Witness tests can be used along with an online survey or focus group or as a stand-alone exercise, depending on the goals of the trial team.
Similar to the online survey, the virtual witness test and focus group are not without their flaws. These research designs can take quite a bit of time to appropriately prepare, depending on the number of issues to be tested. As such, mock juror fatigue and attention span are an important consideration when setting the scope for what will be accomplished. Representative panels and confidentiality are also issues of utmost importance and are further discussed below.
While online surveys are great for sample size and profile groups, and focus groups and witness tests are great for issue-specific tests, mock trials provide the best of both worlds.
Many cases (even outside the shadow of a pandemic) are best tested with an extensive presentation of the facts and themes. To answer this need while avoiding juror fatigue, this type of study is best divided up into more palatable segments and when allowing for individual self-study.
Generally, such exercises enable participants to access all materials (attorney presentations, witness videos, jury instructions, etc.) from a secure server. To safeguard the materials, it is recommended jurors use a password to gain access and be prevented from downloading any material.
Jurors would have a few days to review the content (in whatever order specified) at their leisure. The jurors would then provide written feedback to the moderator who can process and analyze that information for the client. Participants could also then be asked to participate in a videoconference with a small group of other jurors such that the moderator can facilitate the discussion.
While this should not be considered a perfect substitute for independent deliberations, it does allow the client to see some of the back and forth between juror opinions.
As mentioned above, one of the limitations of a videoconference is participant focus. Asking someone to come to a conference room or research facility for the day does not mean those individuals are entirely focused on the topic every moment. But if that person physically wanders away, the organizer can very directly lead them back to the presentation room. In-person mock jurors are also more likely to try to focus when sitting next to others with the same purpose.
Conducting a virtual study that plans to last more than three or four hours is asking for more than what even the most focused mock juror can perform. This would be a similar level of fatigue that you might see from a mock juror in an in-person exercise after eight or nine hours.
Human attention spans have been waning as technology and the speed of our world continues to accelerate. Remarkably, research has shown that modern attention spans are measured in seconds or minutes, not hours.
Specific cautions should be considered when running any study, and moving that exercise online may require further considerations.
Confidentiality is at the top of that list. To some extent, a moderator in an in-person exercise can observe and stop any research or duplication of the exercise. When using an online platform, additional measures will likely be necessary.
For instance, attorneys should ensure the platform does not allow participants to download or record the proceedings or materials. Further, standard confidentiality forms should be expanded to include enforceable admonitions to prevent participants from these acts or doing any type of research before, during or after the exercise.
One of the other top, and valid, concerns is whether the population of individuals who can participate in an online mock exercise will indeed be representative of the jury panel in that venue.
While technology is a standard part of most of our lives, the Pew Research Center found last year that roughly 10% of the population does not go online. While that percentage dropped drastically from their survey in 2000, where approximately 48% of the adult population was not online, it still is important to point out that a good portion of these noninternet users are adults over the age of 65.
Again, the numbers are shifting as the tech-savvy generations age, but it is worth taking into consideration when evaluating what type of jury profile conclusions to reach based on the participants in an online study.
In conclusion, it is important to acknowledge there is no substitute for the interpersonal nature of juror deliberations. In fact, survey method scholars have long pointed out that the internet is not a replacement for other methods of survey administration.
But while social distancing may prevent in-person exercises at the moment, attorneys and their clients still have many options in scope, cost and content to get juror opinions of their case. And we all remain hopeful that before long we will be mask-free and working face-to-face.
Johanna Carrane is president and Lynn Fahey is senior trial consultant at JuryScope Inc.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Rubin and Rubin, 2012 "Qualitative Interviewing: The Art of Hearing Data."
 See, for example: Bradbury, Neil. "Attention span during lectures: 8 seconds, 10 minutes or more?" Adv. Physical Educ. 40: 509-513, 2016: https://journals.physiology.org/doi/pdf/10.1152/advan.00109.2016.
 Dillman, Smyth and Christian, 2009, "Internet, Mail, and Mixed-Mode Surveys: The Tailored Design Method."
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