After months of preparation, the lawyers at Sanders, Simpson
& Fletcher had their case almost ready for trial. The
Springfield, Mo., plaintiff's firm of 11 lawyers had worked hard to
fine-tune the civil case. Their client had the potential of being
awarded significant damages. But the allegation -- sexual misconduct
against a church pastor -- was tricky. Would the facts of the case
resonate well with jurors?
The best way to find out would be with a mock jury trial. But
rather than spending several days away from the office working with
a live mock jury, last spring, the firm decided to take the case
online, to a virtual jury. And in just a few days, says attorney
Sophie Woodworth, it had responses from more than 50 "jurors."
"We wanted to see if we were on the right track with our intended
argument," she says. "The feedback supported our positions. The
process was quick, and the best part was it required a minimum of
effort on our part."
QUICK AND ECONOMICAL
Woodworth has joined a growing group of lawyers who are seeking
quicker, cheaper ways to get feedback about their cases. With
technology already providing much in the way of trial support, it
seems only natural that virtual communication has begun filling the
mock jury gap.
"Online juries provide two distinct advantages," says Chris
Bagby, founder and president of eJury, based in Arlington, Texas.
"It helps you prepare for trial by giving feedback to help you try a
better case. Secondly, the Internet provides a convenient
opportunity to gather empirical data about a case by putting it in
front of people who may never have stepped inside a courtroom."
Many traditional jury consulting firms now offer online mock jury
services. Two of the better-known Web-based companies are eJury and
Virtual Jury. Both let lawyers submit cases online
for evaluation by jurors located in the trial venue.
Bagby, a practicing lawyer, founded eJury in 1999. He says that
he got the idea one day while watching the television show Dateline,
which featured trial coverage with an online poll for viewers to
vote for the guilt or innocence of the defendant. As Bagby witnessed
the poll numbers on the screen climb into the thousands, he realized
the same service could be offered to lawyers seeking the input of a
mock jury, but without the expense of a live event.
In the past, a live mock trial or focus group has generally been
considered only in cases where significant monetary awards are
anticipated. Gathering potential jurors, locating a convenient
facility, attorney travel expenses, witness fees and other
associated expenditures can send mock-trial costs skyrocketing.
"That makes focus groups and mock juries not feasible for the
average case," Bagby says. "But online, attorneys get the equivalent
of several jury opinions in less time, and for a lot less money."
Live mock juries may consist of no more than 12 people, while online
juries can include 50 or more participants.
HOW THE PROCESS WORKS
To submit a case for consideration, attorneys provide the online
service with a factual summary of the case, including the claims and
expected defense of both parties. Photos or other visual exhibits
can be provided to be scanned into the system for viewing. The
lawyer also provides jury instructions, or charges, to be given at
trial and includes any additional questions designed to solicit
feedback from the jurors about the case.
The service searches its database for the names of potential
jurors who match the demographics of the trial venue. This is done
by sifting through the information on income, education, family
background, political affiliations and other pertinent data
potential jurors provide when they register with the provider.
Those who match the requested demographics are e-mailed a chance
to participate in the case. And unlike many courthouse jurors, most
cyberjurors welcome the chance to serve. In fact, many have referred
friends and relatives. That kind of viral marketing has enabled the
online sites to build a database of well over 100,000 potential
jurors, with a wide variety of income and professions.
"Jurors are interviewed and pre-screened, just as with live focus
groups," says Robert Gordon, founder and president of Virtual Jury,
based in Addison, Texas. "But the trial process is much more
relaxed, so you often get a unique perspective and much more
information than you would in a traditional setting."
Turnaround time is fairly quick -- generally three to five days.
Lawyers receive statistical data on the jurors and their findings,
along with summaries and individual juror comments.
At eJury, jurors consider the merits of the case individually. At
Virtual Jury, participants utilize a chat room experience for group
deliberations. Moderators oversee the process, encouraging comments
from less forthcoming jurors. Gordon says some attorneys even pose
anonymous questions to jurors, or just tune in to watch as comments
Online juries can also be used to determine how a case might
slant in a particular jurisdiction, helpful information to have when
determining filing venue. "You can get an early read, or a snapshot,
of the area's values, or how a case might be viewed in different
jurisdictions," says Gordon. "That's something you can't typically
do with live focus groups, because of the expense of convening more
than one group."
NOT THE REAL THING
But what about the lack of personal contact? Voice intonations,
facial expressions and body language contribute significantly to the
deliberation process. "Online feedback can certainly be helpful in
an informational sense," says Nancy Marder, a professor at
Chicago-Kent College of Law. "But I don't think these are a complete
substitute for, or predicative of, what an actual jury might do."
Even the courthouse experience itself has an impact on jurors,
Marder says. "Just the physical presence in the courthouse -- your
sense of responsibility as a juror. That can't be replicated
That point gets no argument from the service providers. Bagby and
Gordon agree that live mock juries are still an important part of
the process. They say that some cases are actually better suited for
live presentation. Straightforward tort, criminal defense, or even
domestic relations cases work well for online juries. On the other
hand, complicated facts are harder to present in the virtual world.
"Cases like commercial litigation or intellectual property don't
translate well," says Gordon. "Trying those cases online, it's
better to pick one aspect of the case to be considered; for example,
is a company entitled to lost profits or should punitive damages be
awarded? Narrowing it down to one issue simplifies the process."
Some lawyers find online juries useful earlier in the litigation
process. Jeffrey Henry, a lawyer with the Law Offices of Tim Dollar
in Kansas City, Mo., has used virtual juries in preparing several
medical malpractice cases. "To me, it's useful as a strategy
mechanism," he says. "Jurors sometimes come up with obscure points
you won't necessarily think of, that lead to other information or
even a different direction to go."
COSTS VARY BY SERVICE
At eJury, charges are based on the number of pages of data and
questions submitted. Bagby says the average case, with seven pages
of facts and ten questions, costs approximately $1,500, but costs
can range from $600 to $4,000.
At Virtual Jury, an average case costs $8,500, Gordon says. The
service includes statistical data and comments, as well as a
transcript of the deliberation process. The site also offers
streaming video, although many jurors still lack the technology to
reliably view video.
Properly utilized, online jury services can move cases in a
positive direction, perhaps even settlement. "Hearing what the
average layperson thinks about a case can be valuable knowledge and
may pave the way toward resolution," Marder says. "But if a case
does go to trial, virtual juries may provide important feedback in a
very cost-effective manner."
When Woodworth's firm finally went to trial in May 2004, the
input from the online jurors gave her and the lead partners a boost
of confidence. Their work was rewarded with a $6 million verdict for
their client. Which, she added, was right in line with the award
given by the online mock jury.
Karen Dean is a freelance writer based in Monroe, Ga.