A few years ago, Chris Bagby thought tort reform might spell doom for eJury, the fledgling online mock jury company that he started out of his family's law practice in Fort Worth, Texas. But it might just turn out to be the best thing that ever happened to the company.
Just a year ago, eJury was doing an average of about one case a week, hardly enough for Bagby to retire on. Now he says the volume is triple that, and lawyers - once known for their techno-phobia - are sometimes running cases through the system without ever talking to a human.
"Most lawyers will call first," Bagby said. "But now I might come into the office in the morning and there will be two new cases (in the computer) that I didn't even know were coming."
Cost is clearly a big part of the appeal. Where traditional mock juries can cost upwards of $20,000 or even $30,000, eJury cases clock in at as little as $1,000.
Tort reform is also another factor, which Bagby and others say has put a downward pressure on costs for both plaintiff and defense lawyers.
"The days of spending $100,000, not including experts, to work up a case are over," said Amy Ganci, a Dallas defense attorney who has used eJury for several cases. "With your run-of-the-mill, my-best-damages-element-is-pain-and-suffering case, you can't afford to spend $30,000 on a mock jury anymore."
A Thriving Field
Bagby's inspiration came the hard way: watching television. He noticed while viewing a news magazine story about a crime that people were responding to an online poll about the guilt of the criminal. Why not apply the same approach to mock juries, he wondered.
He started the company in 1999, but he wasn't alone. A host of online mock jury firms cropped up at the turn of the millennium, among them ZapJury, VirtualJury, and I-Courthouse. Several years later, all of them continue to offer a variety of online mock jury services. But Bagby appears to lead the pack in both volume and depth of services.
Lawyers generally have been slow to adapt to new technology, and small-firm lawyers, with their relatively tighter budgets, have been even slower still. ZapJury, for instance, was launched two years ago in Naples, Fla., by Douglas Wilson of The Wilson Law Firm. But two years later the company has a limited number of clients and Wilson is planning to launch a major marketing effort because lawyers have been slow to adopt the technology.
Attorneys' resistance might be well-placed, said Richard Gabriel, president of Los Angeles-based Decision Analysis and the current head of the American Society of Trial Consultants.
Gabriel believes that online mock jury companies have improved significantly since they first broke on the scene several years ago. They have gotten better at qualifying jurors and showing, for example, that the jurors actually live in the counties where they claim to live. At the same time, the proliferation of Internet access at home has reduced concerns about online jurors being more affluent than their real-world counterparts, thus skewing the results. Still, Gabriel said users should approach online information gathering with a critical eye.
"What distinguishes interesting research from good in-depth analysis is the experience of the consultants," Gabriel said. "I think there is still a very big question mark as to whether these groups provide good research."
There are many other concerns, including whether an online experience can accurately replicate the experience of putting 12 people in a room and getting them to hash their way to a verdict, Gabriel said.
"A mock trial is a very particular thing," he said. "You are studying the dynamic decision making of a jury and the dynamics go beyond the factual presentation of the evidence. It has to do with the vehemence of the arguments, the tone of them, and the story-telling ability of the attorneys."
How It Works
Some firms, including VirtualJury and ZapJury, provide a chat-room type of virtual courtroom in which attorneys present their cases to a group of people over the Internet during a specified time. The jurors work toward a verdict just as they would in a more traditional mock jury. EJury and other competitors take a slightly different approach, sending out written case summaries to jurors who review the facts over the course of an hour or two. More recently, Bagby has added the ability for jurors to view photographs and even videotaped clips of depositions. Once 50 people have reviewed a case (for a fee of $5 to $7 per case), the results are compiled for the attorney.
Attorneys are given a thick packet of information that includes answers to personal questions about specific case elements, answers to verdict questions, and multiple statistical breakdowns of verdict awards among different groups of jurors (e.g. males, females, Republicans etc.) The answers to specific questions put to the jurors, such as how persuasive a particular piece of evidence might have been, can often be very convincing, according to Bagby.
"Most of my customers will tell you that the answers to the personal questions are the most important," said Bagby. "That's where they get real feedback, real ideas and information about how to better present the case at trial."
Bagby provides customers with detailed demographic information about each of the jurors, including age, sex, marital status, occupation, number of children, and political party affiliation. Of course, that same information is available from more traditional mock juries, but not in the volume that is provided when attorneys get feedback from 50 jurors.
"When you've got 40 different quotes from 40 different jurors all blasting the defendant and you can say this one is from a 45-year-old Republican homemaker and this one is from a 39-year-old minister, then it humanizes it more than a mock jury," he said.
Real Life Applications
Ganci, a Fort Worth attorney who has used eJury several times, recently applied it to a wrongful death case in which an elderly woman rolled off an X-ray table when left unattended for a few minutes. She suffered severe trauma and died a few days later.
Although it was determined that blunt trauma led to her death, no autopsy was ever conducted. Ganci wanted to test whether the lack of an autopsy on a woman who had several competing medical problems would be an issue for jurors. She also wanted a clearer sense that jurors would be willing to award significant damages for the death of a woman who likely had less than a year to live anyway. The response was overwhelming.
"Almost every single one of the jurors expressed the desire to punish the hospital by awarding punitive damages," said Ganci.
That information, presented at a settlement conference, led to a high six-figure settlement, a significant figure given the woman's age.
Targeting specific questions the way Ganci did is one of the best ways to use online jury research, according to Gabriel. He's less sure about the effectiveness of gauging verdicts or damage amounts. Jury dynamics, lawyers' presentation styles, and the presence of a victim in the courtroom are just a few of the things that are left out of the equation. And then there is the idiosyncratic work of the jury deliberating a case.
"There is something particular about the jury dynamic of people sitting in a room hearing other people's arguments, not only what they say but the intensity of their tone, their personality, how they vocalize," he said. "It's a very unique dynamic and it is something that it's just not within the capabilities of the electronic media to replicate."
Bagby counters that the volume of responses can counteract the lack of actual contact among the jurors, and other missing real-world elements.
"Many times our users will come out with the same result that they get at trial," said Bagby. "The answers to jury questions can be empirically sound because there are so many people involved."
The online approach offers flexibility that it's real-life cousin can't offer, according to Cheryl Smith, a solo attorney in Fort Worth.
Smith represented a man who had been employed in the same position for 27 years but was summarily fired after he reported slipping and injuring his back on the job. The man, 47, suffered severe back strain and was unable to return to the same kind of work. In essence, it was a he-said, she-said case, with the man's employer denying that he ever told the boss of his injury, Smith said.
"The expense of a real mock jury was prohibitive," she said.
Smith had used eJury before but to make her case even stronger, she plucked an online jury from Maricopa County, Arizona, which includes Phoenix. Bagby claims Maricopa County is among the stingiest in the country when it comes to awarding damages.
Smith brought the results to mediation but her opponents said they felt the information was biased because they hadn't participated. Smith says the mediator then directed both sides to put an agreed-upon set of facts to a second eJury before completing the mediation process. Attempts to reach opposing counsel were unsuccessful. But Smith says she was pleased with the result.
"I can only tell you [that] for a labor employment law case it was a large award," she said.
Keys To Success
Some of the same approaches apply online as they do in the real world, users of eJury say. One example is that users tend to make the strongest possible case for the other side, so that when the results are brought to opposing counsel, it is clear they are based on a balanced presentation of the facts.
"I'll put every one of my bad facts in there and maybe not put in their bad facts," said Ganci.
Scott McKnight, of the McKnight Law Firm in Fort Worth, Texas, has found the service useful in cases that go to mediation. A recent car accident case he put to EJury ended in a successful mediation in which the agreement was 25 percent higher than the highest figure his opponents had hoped to pay, McKnight said.
The case involved a university administrator in her late 40s who suffered a head injury in a traffic accident involving a pair of construction vehicles that collided while following one another to a work site. As it turned out, the company kept no maintenance records for the vehicles and one of them had suffered a brake failure.
Critics say - and Bagby agrees - that online mock juries have a significant limitation. In spite of the increasing proliferation of home computer access, jurors still tend to be slightly more affluent than the average jury pool. Bagby said he has yet to find a way around that problem. Still, he says other benefits make up for that drawback.
"You can pay $25,000 for a real mock trial and get face to face with people who can't afford a computer," he said. "But this is something you're paying $1,000 to $1,500 for."
As for the future, Bagby believes it belongs to situations in which both sides jointly use an online approach such as eJury to negotiate a settlement. To that end, he has begun offering a two-sided procedure called "case summary," the process used by Cheryl Smith.
Looking To The Future
EJury started in Texas, but Bagby says that he has since conducted cases in Tennessee, Phoenix, Los Angeles, and Chicago, among other locales. From a group of a few dozen friends who reviewed his first case, he now has a juror pool of 60,000 people. He said he can put together an online jury in any county nationwide.
Turnaround time for completing a mock jury on the Internet can be as short as 48 hours for large metropolitan areas and a week or two or more in rural areas where it takes longer to reach the 50-juror threshold.
Bagby isn't alone, apparently, in believing that this is the wave of the future. Competitor VirtualJury will soon be offering a similar service. A beta testing version of it is already available at www.settlethecase.com
The expansion of services might be a sign that lawyers are getting more comfortable with Internet technology. Then again, maybe not. Bagby said he has been offering customers a "binding case summary" option in the last few months in which users would have to adhere to the verdict awarded by online jurors. So far there have been no takers.
But that doesn't deter him. Ever the visionary, he thinks it's only a matter of time before the courts adopt some of these technologies.
"In our lifetime there are going to be jurors logging on and completing real cases online," he said. "It's just a matter of the technology catching up."
Questions or comments can be directed to the features editor at: bibelle@lawyersweekly.com
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