The Online Mock Jury
by Christopher L. Bagby
As a third generation
attorney, I recall several years ago trying to explain the Internet to my
father. Like anything new to
our law practice, I was somehow expected to have a better grasp of the
concept because I was younger. I
could tell, however, that my explanations simply weren’t making sense.
Maybe there is something about a person’s age that coincides with
the ability to understand computers.
After all, it was my eleven-year-old son who provided the
explanation his grandfather liked best – “the Internet helps people on
computers communicate with each other.”
A Tool of Communication
The Internet may be many
things to many people, but to legal professionals there is no doubt it has
become an amazing tool of communication.
We use it to communicate with clients, witnesses, other attorneys
and legal staff. Written
discovery is now sent via email allowing us to “cut and paste”
directly from the opponent’s document.
In some jurisdictions, we can even communicate with the courts
through the Internet by filing pleadings, motions, and other court papers
For litigators, most of this communication is all being done as we march forward to the finish line – the trial. Ironically, it is at that time when “communication” matters most.
Traditional Mock Juries and Focus Groups
Attorneys on both sides of
the docket will usually agree that litigation is an uncertain course to an
uncertain outcome. Juries are
difficult to predict and even the best attorneys will admit to their fair
share of “surprise” verdicts. The
uncertainty of litigation is not necessarily a bad thing.
It is one of the biggest motivating factors for resolving cases
early through settlement. Nevertheless,
lawyers continually seek to reduce this uncertainty by employing various
tools such as mock trials, focus groups, and jury consultants.
For years, these
litigation tools have been so expensive that they are only used on a small
percentage of cases – those cases where enough is at stake to justify
the expense. The advent of
the Internet has opened up new and exciting ways to make these litigation
tools affordable to a much larger segment of cases.
Cutting the Overhead – Making
In November of ’99,
after receiving the final bill from a jury consultant on a case that had
just gone to trial, I started thinking that there had to be a better way. It’s not that the focus group research wasn’t valuable.
It was valuable…but the $24,000 price tag was hard to swallow.
I began to analyze what we
really pay for with traditional mock juries and focus groups and soon
realized that the entire process could be made much more economically
efficient. With the Internet,
there would be no need for the mock jurors to get in their cars and drive
across town to spend half of their day in a jury consultant’s office.
In fact, there’s no reason to have an office because we don’t
need a courtroom, we don’t need a deliberations room with a big
conference table, and we don’t need a jury consultant to make sure
everyone is sitting in the right place.
Thus, the concept of an online
mock jury was born. My
company, called “eJury”, launched the eJury.com website in February of
2000, and began offering online mock juries with prices ranging from $600
What is an Online Mock Jury?
Over the past couple of
years, several companies have now started offering very affordable online
mock juries. Each one works a
little differently, but the basic premise is still the same. At eJury, our customer, usually an attorney or paralegal,
prepares a written presentation of the case facts. The facts begin with some general background information
followed by perspectives from each party involved in the lawsuit.
The presenter may want to include various arguments from the
parties, as well as scanned exhibits such as photographs.
In addition to providing
the case facts, the submitting attorney will include the jury questions
that will be used at trial (e.g. Did the negligence, if any, of
those named below proximately cause the occurrence in question?). Following the jury questions are several “personal
questions” (e.g. What facts or areas of the case did you want
to know more about?).
All of this information is
sent to eJury where it is converted to “html” and then posted on
eJury’s web server. Exactly
where it is posted will depend upon the venue selected by the submitting
attorney. As an example, an
attorney with a case pending in Dallas County, Texas would want his/her
case posted to the Dallas County eDocket.
This will insure participation only from persons residing in Dallas
eJury would then notify a
selected group of mock juror participants in Dallas County of the new
case. These participants
(called “eJurors”) can access the case using a secure password system.
Most cases call for a minimum of 50 verdicts, so once 50 eJurors
have read the case and answered the questions (normally 2 to 3 days), the
case automatically concludes.
Feedback from 50 persons
provides a tremendous amount of data, which can be analyzed in various
statistical categories. Taking
advantage of the computer’s ability to sort and organize this data,
eJury can easily determine, for example, whether males or females are more
likely to side with a particular party.
Likewise, verdicts can be compared among age groups, race, and even
political party affiliations. Most
important, however, is just the sheer size of the panel.
Computing the average verdict among 50 persons is much more
empirically sound that a verdict of just 12 participants.
Who are the Online Mock Jurors?
“Viral growth” is a term often used in the
information technology industry to describe continued increase in website
traffic. It is a term which
best describes the way eJury has attracted participants willing to serve
Most eJurors find the
experience to be significant. It
is challenging, yet rewarding at the same time.
eJurors are paid for their verdict (pay ranges from $5 to $10
depending on case length), but readily admit that they don’t do it for
the money. Just
as someone serving jury duty at the courthouse for nominal pay still gains
a certain sense of “civic pride,” most eJurors feel they are helping
decide real cases involving real people.
Their experience quickly becomes something they want to share with
friends in their address book, just a short click away.
This type of viral growth has allowed eJury to amass a database of
eJurors on a national scale, permitting cases to be completed in virtually
any U.S. venue.
Participants sign-up to be
eJurors through the eJury.com website.
Because the cases are considered confidential, each prospective
eJuror must complete an oath verifying he is not an attorney, paralegal,
legal assistant, or insurance adjuster, and that he will not share any
information from eJury with others.
Participants must also
provide a host of identity and demographic information.
Just like real jurors, eJurors come from all different walks of
life and backgrounds.
Using your Results
The way in which attorneys
and legal professionals choose to use their results is often dictated by
the results themselves. Frequently,
this will mean either attempting to promote settlement or preparing for
immediate significance of the results is the determination of “case
value.” The results are an
independent evaluation of the case. In fact, they are 50 independent evaluations of the case.
They can confirm a realistic evaluation, or dissuade unreasonable
client expectations. The
results are a great tool for educating the client and making mediations
and settlement conferences more productive.
Preparing for Trial.
In much the same way a trial team would benefit from traditional
mock jury or focus group research, eJury provides feedback that will lead
to a better presentation at trial. The “personal questions” asked to
the eJurors are the key. The
answers to a simple question such as, “What facts were the most
important to you in rendering your verdict (i.e. why did you decide in
favor of the Plaintiff or why did you decide in favor of the
Defendant)?” will show the attorney which facts are going to need
the most emphasis at trial. Similarly,
a personal question which asks, “What do you think about Dr. Jones’
argument that many of Mrs. Wilson’s problems pre-existed the surgery and
were caused by years of obesity and smoking?” will help the attorney
develop themes and arguments that can be used throughout the trial
presentation. Attorneys can
also ask questions to discover “public attitudes” on issues that could
potentially divide the jury. In
an obstetrical malpractice case for example, the attorney asked, “Before
reading this case, what were your thoughts about the use, safety, and
commonness or acceptability of forceps?”
Imagine how beneficial it would be at trial to know before jury
selection begins that 78% of the panel may feel that forceps are outdated
and no longer used in today’s hospitals.
The Internet has opened up exciting opportunities
for legal professionals, and presently, we are only seeing the “tip of
the iceberg”. The
ability to communicate with such large numbers of people has limitless
technological advances provide faster connections, we will see online mock
trials offering live, real-time presentations. In fact, there will not be a single phase of a trial that
cannot be offered in some medium capable of broadcast on the Internet.
With those possibilities, it is not too difficult to imagine a day
when jurors will receive jury summonses directing them to appear for jury
duty by turning on their computer and logging on.