Developing a Virtual Trial Strategy due to COVID

A leading financial litigation law firm came to us with concerns about how to defend a client who had been sued by a group of individual investors. Their client, a firm providing back-office services to assist securities firms process transactions, was alleged to have breached duties owed to the plaintiffs related to fraudulent conduct that occurred at the securities firm. Unable to recoup their losses from the admitted fraudsters, the plaintiffs sought compensation from the clearinghouse firm.

The challenge for the defendant’s attorneys was how to communicate the roles and responsibilities of all the parties in such a way that jurors would conclude that their client had acted appropriately. And, in particular, what approach to take towards the plaintiffs who were elderly, yet fairly sophisticated, investors.

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Methods Used

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Discussion with the trial team began in early 2020, ahead of the pandemic emerging in the US, and traditional in-person jury research was planned. By the time the research dates were approaching, it became clear that in-person research would not be possible.

Thus, HawkPartners developed a plan for online jury research to help the trial team gather the insights needed to test its planned trial strategy. Groups of eight to 10 jury-eligible residents were recruited to listen to summary statements from each side via a secure online platform allowing the trial team to deliver the summaries and supporting evidence as well as observe the deliberations among the jurors and provide additional information and questions to those moderating the juror deliberations.

One benefit of scheduling sequential sessions, rather than a more typical one-day session with a larger group of jurors, was the ease with which the presentations could be tweaked across days based on learnings from the most recent juror reactions.

While the initial defense approach tested was met with resistance by the first group of jurors, incorporating learnings from each session demonstrated that by the third day, an enhanced approach increased the likelihood that jurors would conclude that the defendant had in fact acted appropriately and that other factors were responsible for the plaintiffs’ losses.