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 electronically. 

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 it Affordable

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 to $2,000.

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 County.

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 as eJurors.

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 trial.

Promotion of Settlement.  The 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 Future

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 possibilities.  As 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.

Christopher L. Bagby is an attorney with the Bagby Law Firm, P.C. in Arlington, Texas, and the founder of eJury, L.L.C., the first company in the nation to provide online mock jury and focus group research in a venue specific format.  For more information, visit www.eJury.com.