By Eric Rudich, Ph.D. & Steve Tuller, Esq.
Risk is inherent in all litigation. Attorneys, in-house counsel, and insurance professionals are continually faced with uncertainty when determining whether to settle or proceed to trial. Litigants are also under pressure to reduce litigation spend by making economic decisions on the value of the case and costs associated with litigating versus settling. Traditionally, to value a specific case and to determine risk of going to trial, legal professionals rely on their personal experience and conduct verdict searches. We believe that the litigation field is highly inefficient. Litigants typically spend too much money on cases that they should have settled earlier before undergoing an extensive and costly discovery process. When cases settle, litigants often settle for too much or too little.
We have been using our jury research and damages analytics to assist clients with determining case value and evaluating litigation risk. The benefit of conducting jury research over verdict searches or relying on personal experience is that jury research provides a robust overview of the potential risk based on the specific case facts and feedback from a representative jury pool. In the typical jury research exercise, two to four deliberation groups will observe presentations on behalf of each party in the dispute, which will include key evidence and testimony. Following these presentations, mock jurors are read the jury instructions, given a verdict form, and divided into one of several deliberation groups to deliberate. Each mock jury will then render a verdict which will include any damage awards. The results of the jury research provide a few data points for assessing potential exposure (the damages verdict for each group).
However, to more robustly evaluate litigation risk, we utilize Bayesian statistics using our jury research results to determine the probability of obtaining various damage awards. Rather than considering only a few damage awards for making litigation decisions, we conduct a simulation analysis to determine how hundreds or thousands of different jury configurations would have decided this case. This analysis provides the distribution range and associated probabilities of various damage award levels.
While many litigation professionals believe that jury research should be used to prepare for an upcoming trial, it may be used at early stages of litigation to determine risk and financial exposure before undergoing an extensive and costly discovery process. As litigation is very costly, this research can help inform settlement decisions at the outset before proceeding through extensive discovery and trial preparations. Conducting jury research at the outset has the added benefit of determining the key issues and storylines that will impact how jurors will ultimately decide a case. Attorneys may then focus their discovery and witness questioning on addressing these potential issues. Critically, using jury research to evaluate risk also helps legal professionals to evaluate their cases more accurately and to reduce litigation spend by determining early on whether to settle and by not overspending on settlements.
Eric Rudich, Ph.D. is a Partner and Senior Litigation Consultant at Blueprint Trial Consulting, which offers jury research, litigation consulting and graphics services. He has been conducting jury research and consulted on matters for almost 20 years and has worked on over 500 cases in venues throughout the United States. Dr. Rudich has worked on litigation involving intellectual property, insurance defense, product liability, securities, contract, anti-trust, white-collar crime, and environmental issues. To determine how we may use jury research to help value your case, please contact him at 646-729-3277 or email@example.com
Steve Tuller, Esq. is a Partner and Senior Litigation Consultant at Blueprint Trial Consulting, which offers jury research, litigation consulting and graphics services. Over the past 17 years, Mr. Tuller has handled more than 500 matters in state and federal courts throughout the United States across many areas of law including intellectual property, product liability, employment, professional malpractice, insurance, transportation and personal injury. You may contact him at 703.437.5071 or firstname.lastname@example.org