Friday, September 3, 2004
Volume 3, Issue 35
BY GENE KOPROWSKI
Mock juries have been "the bread and butter" of successful trial lawyers for a quarter-century, says Robert Gordon, director of the Wilmington Institute, a trial research firm in Dallas.
But can electronic juries, offered over the Internet, replicate the essential elements of a mock jury to forecast results of a potential trial, identify sensitive questions and, perhaps, help settle the case before it goes to trial?
Gordon and other experts predict that e-juries soon will be embraced in the same way that mock juries are today. Some lawyers already are using e-juries with the thinking that all information, regardless of how it was gathered, can help in preparing for trial.
Moreover, e-juries can be "a great negotiating tool," says Chris Bagby, an attorney who is president and CEO of eJury, in Arlington, Texas. He also produces eJury.com, an online mock jury purveyor.
"Traditionally, in mediation," Bagby says, "each lawyer beats his chest and says how great his case is. But nobody really knows how it will turn out. Now, they can have some empirical evidence."
Bagby’s company, along with competitors like ZapJury.com in Naples, Fla., increasingly have a national reach. eJury.com, for instance, can draw on a pool of 60,000 virtual jurors, including more than 1,000 in Cook County, Ill., one of the largest trial-level jurisdictions in the United States. Four years ago, his operation was concentrated in Texas, with 400 mock jurors.
Bagby says eJury hosts about three mock juries each week and has grown from a part-time business to one that now employs three people full time.
For some cases, online juries may be better than traditional mock juries, says Gordon, an attorney and psychologist.
"They are faster, cheaper, and you can do some interesting psychological changes in states" by testing different interpretations of facts to see how they influence a jury’s emotions, Gordon says. They also can be a helpful tool in settlement negotiations, he adds. "That makes online mock juries extremely useful."
Michael Smith, a partner in the Atlanta office of King & Spalding, says his firm was pleased with results when it recently engaged a consultant for an online mock jury.
"Ours was live, with 20 to 24 mock jurors, who were broken down into three to four groups for deliberation," Smith says. The technology employed included "real-time keypads for jurors to use to express their views on whether they buy what the attorney is saying," he adds.
Assembling an online jury is quite straightforward, and usually costs around $1,500, as compared to the $20,000 to $30,000 it often costs to empanel a mock jury or focus group offline, according to Bagby.
"We can put together a case in any major metro area," Bagby says. "We combine counties for cases in rural areas."
"Community attitude surveys" that poll prospective jurors in likely venues can cost $100,000 offline, but a fraction of that online, Gordon says.
"Even granting the critics of online services full credit, there is just no question that online mock juries have significant value," says Douglas Wilson, an attorney who founded ZapJury.com. "Their cost-effectiveness is hard to argue with."
To employ an online mock jury service, a lawyer registers at one of the sites and submits case information, including written arguments for both the plaintiff’s side and the defendant’s side.
Self-selected jurors—up to 50 for most eJury.com cases—view the arguments and render a verdict, and even make comments about what evidence they found most persuasive or what arguments were not compelling. The jurors are paid, usually $10 to $20 per online case.
"If we e-mail 150 people from our juror pool on a Thursday, we can have a verdict by Monday," Bagby says.
Are the verdicts exactly what one would find in a focus group or in a live trial? Clearly no, experts say.
"There is a built-in sampling bias, or a self-selection bias," says Jim Dobson, director of jury research and graphics at DOAR Litigation, a jury research company in Lynbrook, N.Y. "E-jurors would have to have a computer, likely would have to be techno-geeks in order to get themselves into a chat room or opt-in list to be selected as an e-juror to begin with, and would have to be computer-savvy. In addition, the sample would likely exclude older people who we know are likely to be disproportionately excluded because they do not use computers with the same frequency as younger people."
Another jury consultant, Theresa Zagnoli, CEO of Chicago-based Zagnoli McEvoy Foley, says there are other biases present in online juries, including the absence of subtle social pressures that are common in regular courtroom and jury settings.
But she says online companies have been working extensively with businesses as well as litigators to perfect the technology to make online focus groups as reliable as conventional ones.
With more than 8 million civil cases and 6 million criminal cases filed in state courts every year, ZapJury research shows, the fledgling online jury industry has a way to go to reach critical mass.
But Zagnoli says the legal profession will come to recognize that online technologies are effective because "all information, regardless of how gathered, advances a lawyer’s ability to prepare for trial. Online surveys allow for fast feedback, economically, which is why they will be a tool of the future."
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