Lawyers plug into e-juries for pre-trial research

0

ST. LOUIS – Brian Millikan, a lawyer in a small downtown St. Louis firm, wanted to get a feel for how a jury would react to arguments in a personal injury case he was defending. Hiring surrogate jurors for a mock trial was too expensive, so he began exploring the Internet for alternatives.

His search revealed several sites offering virtual juries made up of people who read information about a case, render a verdict and answer questions about how they reached their decision. And it’s all done online.

“The advantage is it’s quick and cost effective as opposed to getting a focus group together to go through a whole trial,” he said. “A bigger firm can afford focus groups, but this is half the cost.”

Although his firm, Reinert & Rourke, had some concerns, the lawyers decided to give it a try and submitted a case to Arlington, Texas-based eJury. Millikan and his colleagues were so pleased with the information they received about the case, which is set for trial in April, that they have asked eJury to handle a second one.

“As a lawyer, you focus on certain things, but there were other things jurors brought up that I just wasn’t thinking about,” Millikan said. “It gives you an idea of points to impress upon jurors.”

Research tools

The virtual jury is one of the newest tools used in pre-trial research aimed at helping lawyers develop their courtroom presentations, select the best jurors for their cases and reach negotiated settlements. Although trial consultants have been providing various types of jury research since the 1970s, the concept of online juries began to emerge about five years ago.

Texas lawyer Chris Bagby was inspired by a “Dateline” television show featuring trial coverage of a case. During the program viewers were asked to vote on a suspect’s guilt or innocence. Bagby was amazed at the response and it gave him the idea for a business in which lawyers could “pre-try” their cases before online juries. He started www.ejury.com in 2000.

“As a plaintiff’s lawyer, I had always been jealous of the money that defense attorneys got from insurers to pay for mock juries. Those things are extremely expensive … about $30,000 to $50,000 in the Dallas/Fort Worth area,” Bagby said. “If you’ve got a case worth $50,000 you can’t afford to use it.”

In contrast, Bagby said eJury can provide online research for about $600 to $5,500 depending on the complexity of the case.

In the early days of the business, Bagby attracted jurors by distributing business cards that told recipients they could get paid for logging into eJury and giving an opinion on a real case.

Today he has some 100,000 online jurors nationwide and eJury has generated online verdicts in more than 275 cases.

“Now we can do a case almost anywhere in the United States,” he said, explaining that the online jurors come from the same venue as the case they will decide.

Advertisement

Why e-jurors volunteer

Through eJury and competing Web sites, virtual jurors can sign up to participate in a decision-making process aimed at helping lawyers determine what their cases are worth, find facts to emphasize and learn public attitudes.

Bagby said that the jurors get paid $5 to $10 per verdict depending on the complexity of the case.

“It’s not really enough money to do anything with. The reason they do it, they find it interesting. It’s definitely the intrigue, not the money,” Bagby said. “I’ve had some say it’s provided the most fascinating dinner conversation they’ve had with their spouse in years.”

Mary Ellen Whiteman, a lawyer who works for Legalvote.com, a virtual jury service in Georgetown, Conn., agreed. The service, a subsidiary of Vote.com, can be found at www.legalvote.com.

She said jurors are not paid per verdict but instead are entered in a drawing for a money prize. While she did not give a specific figure, she said the amount is not “huge.”

“People like to voice their opinion,” she said.

Once eJury receives a case, the firm sends e-mail messages seeking participation from “jurors” living in the same area as the litigation, Bagby said. EJury usually notifies some 400 jurors in an effort to get 50 responses. The typical turnaround time is four days, Bagby said, but it can be shorter under certain circumstances.

Legalvote.com can usually get a turnaround in 24 to 48 hours, Whiteman said.

Millikan said he initially was concerned about jury demographics. For example, he worried there would be too few older jurors because they might be less likely to use computers.

“I was pleasantly surprised when we got the results,” he said. “There was a pretty wide range.”

Lawyers receive information about online jurors’ age, race, gender, political affiliation, county of residence, occupation and marital status.

e-juries save money

As for costs to the lawyers, Bagby said the basic charge is $300 per single-spaced page of information. Each case usually averages about five pages of written summaries of both sides’ arguments.

For the base price, lawyers are also allowed to ask participants a limited number of questions about their view of the case and what they found important. Extra fees are attached to additional questions, the use of pictures and other items.

While virtual juries are definitely a less expensive way to go, Robert Gerchen, director of the St. Louis office of Litigation Insights, a jury research and trial consulting firm, said his company only uses “live” focus and deliberation groups.

“We can control the sample better and it allows us to get direct and immediate feedback,” he said. “We are more confident in the generalization of the results.”

But mock juries are expensive because they generally involve multiple panels of 12 individuals. Surrogate jurors are usually paid between $125 and $175 a day in addition to fees for consultants, lawyers and support staff. St. Louis area attorneys who have used mock juries said they can cost six figures.

Still, if a trial means there’s a lot of money at stake, attorneys say live simulations are a better bet than virtual juries.

e-jury drawbacks

For example, the online pool is limited to people actively seeking to decide a case and who have some level of computer knowledge. Virtual jurors will make decisions without watching trial simulation and without the peer pressure that can accompany jury deliberations. There is also no way to control whether Internet jurors have consulted with friends and family about a case.

“You don’t really know what you are getting,” Anthony said.

Peter Joy, a Washington University law professor and expert in trial practice, said a virtual juror also cannot react to a particular lawyer.

“It’s often more important to know how does the jury feel about ‘me.’ … That is something that is lost on a virtual jury.”

But experts believe that the use of virtual juries will grow in sophistication and popularity.

“The prevailing wisdom these days is that you’ve got to test a case before you take it to trial,” said Gerchen. “What lawyers think is important and what jurors think is important are two different things.”

Advertisement