As originally published in The National Law Journal.
Corporate defendants involved in complex litigation often face the challenge of keeping trial preparation costs in check while ensuring that the most compelling story is developed to satisfy both the legal burdens defined by the law and the trial jury’s need to understand and be motivated by that story. That’s true in any high-stakes case, but, in complex litigation, jury persuasion takes on different dimensions and requires different strategies for the trial team than in other cases. Complex litigation also necessitates that the defense story be effective in the first case to go to trial as well as those to follow. As a result, jury persuasion in complex litigation requires complex preparation but simple messages.
To translate the complex into the simple, a tremendous amount of thought, research and planning is required. From the early development of the case, trial teams must evaluate the evidence not only from the judge’s perspective but also with the perspective of the jurors in mind. Although understanding the juror perspective can be useful in any case, in complex litigation this knowledge has much wider application, as it can affect more than just one case. Furthermore, factors influencing the outcome in complex litigation, such as variance in attitudes across venues, the length of the litigation life cycle or differing facts across cases, suggest the need for customized preparation strategies.
Employing jury-perception research early in the complex litigation time line can help to answer key questions that will enhance trial strategies throughout the life cycle of the litigation.
Without trial counsel investing time and resources to understand how jurors are likely to view the issues involved in complex litigation, the jury may not believe or understand important elements of the case story once the case makes its way to the courthouse. From the beginning, the legal team will have hypotheses about which facts, arguments, witnesses and techniques will be most persuasive to jurors, but the only way to validate those hypotheses is to test them to understand how jurors perceive them. The early jury-research process can help the trial team in a number of ways: to understand the issues that might be stumbling blocks for jurors; to identify themes that will require elaboration; to develop actionable juror profiles; and to explore variances in attitudes across venues. With this knowledge, not only will the first case be better positioned for success, but any case to follow will benefit.
Knowing which contextual issues present stumbling blocks for jurors — such as general perceptions of large corporations in a certain location, or perhaps in the current economic environment — can help to shape trial strategy. Additionally, any case involving complicated issues and significant stakes (whether financial exposure or reputational risk) can benefit from learning which specific issues will require more time to explain and which topics can be dealt with more concisely as the case story is prepared for a jury. Furthermore, through the jury research process, it becomes clear which points will benefit from graphic support and the types of demonstrative evidence that will enhance the story rather than detract from it. For example, identifying key time lines and issues requiring tutorials that can be developed and used across cases may be critical to enabling jurors’ comprehension of the issues.
An equally, if not more, important objective of jury research in complex litigation is developing an understanding of which types of jurors are likely to view the case favorably or unfavorably. Focusing on the characteristics of favorable and unfavorable jurors while the discovery process is ongoing allows counsel to explore issues and develop evidence that may address key concerns of specific types of jurors. This knowledge can also help to tailor the communications strategy to the predispositions of a particular venue should case-related attitudes or experiences be more prevalent in one venue than another. For example, some witnesses may play better in an urban venue than a rural venue or vice versa, or some themes and evidence may be more compelling in some parts of the country than in others.
Finally, the early research process can help to determine the likelihood that the collection of cases and/or the individual case can be successfully defended and what types of facts (that may be unique to individual cases) make it more or less likely. This information can be invaluable in assessing settlement opportunities and determining the appropriate overall case-management strategy.
Identifying the witnesses who will be most persuasive to the jury — and who can be available to participate across trials — is critical in complex litigation. Early research can enhance discovery strategy for deposing and designating witnesses, and witness testing with mock jurors can provide further support. In any trial, it is important to rely on the witnesses who will be most persuasive to the jury, but in complex litigation there is the added burden of making sure that that person can be available to participate across trials — either in person (preferably) or in the form of a carefully prepared video deposition (as a last resort).
For example, as Toyota Motor Sales USA Inc. begins to deal with the litigation coming out of its brake and accelerator problems, it will have to figure out which witnesses will best be able to tell a compelling story of why the company did the right thing and make sure that their video depositions are prepared and conducted in the most persuasive manner — or else be willing or able to have that person become part of the legal team for many years.
Setting the Stage
It is critical in complex litigation to deliver key information to the jury in a concise and simple story while taking into consideration jurors’ predispositions. Providing a clear and simple framework for the key facts is an important part of developing persuasive communication in any forum, but it’s particularly important when it comes to complex litigation because of its application across cases. Once key issues important to the jurors have been identified, the next step is to define the overarching themes that can be woven together to create the fabric or framework for the story across cases. These are often the elements of the story that will have to be told in every case, regardless of the facts that may vary across cases. These themes should be conveyed in clear and simple language and serve as an organizational structure for the jury’s view of the underlying evidence; incorporating details of case-specific facts or customizing as needed across venues.
For example, jury research in pharmaceutical products litigation showed that a key theme would be that the defendant met or exceeded all safety standards in manufacturing and marketing its drug. However, research showed it was critical to first explain how the drug approval and marketing process works (albeit varying the level of detail and discussion depending on the specific venue or plaintiff story) before striving to demonstrate that the company wasn’t negligent in the way it carried out its work specific to the claim.
From a Distance
When developing the thematic case structure, the focus should be on how jurors would view the issues — and, specifically, how they would view the case from 10,000 feet, not from the perspective of someone viewing the evidence through the weeds associated with every detail. For example, in a class action involving consumer claims that the company failed to live up to its contractual promise, jury research demonstrated that it was more important to show that the class of customers was seeking special treatment at the expense of the majority of customers than it was to explain the minutia required to show that the technical specifications required by the contract work differently than what the plaintiffs claimed.
With this knowledge, the defendant understood that it could not win the case by defending the technical specifications, but it instead would have to focus on customers’ experiences relative to one another. Again, although this would be important in any case, in complex litigation it can yield a core thematic structure that can be utilized across all cases and/or could lead to the conclusion that the case or cases should be settled rather than taken to trial.
As experience in the litigation accumulates, findings from early jury research, enhanced by lessons from the initial trial experiences, can be incorporated into the development of subsequent trial strategies. The trial team can gather lessons from the initial trials in a variety of ways — either during trial or posttrial. Post-verdict interviews can be conducted with trial jurors (where permissible) to uncover key drivers of the trial verdict, as well as points of confusion, that may direct future trial strategy.
Alternatively, employing shadow jurors during the trial can shed light on what actual trial jurors may be thinking midtrial. Based on this insight, the trial team may identify a need to shift direction or emphasis midtrial and/or in the subsequent case. Feedback from a recent shadow jury played an important role in a trial team’s decision to agree to a midtrial settlement by highlighting the communications challenges the defense faced in that particular venue. In complex litigation, these lessons, coupled with those from pretrial research about venue variances, can lead to enhancements in strategies employed in both ongoing and future trials.
Just as a collection of persuasive verbal messages accumulates, developing a library of demonstrative evidence that has been shown to effectively support key messages can also be a cost-effective way to help trial teams integrate effective tools into their trial communications plans across cases.
In sum, developing an overall trial-preparation process that optimizes management and communications strategies across cases will lead to better outcomes — from the first case to the last. Much of the preparation involves simply giving consideration to the unique logistical needs of a complex litigation. Beyond that, starting this process with jury research that addresses the relevant broad issues can provide lessons applicable to most cases. Finally, these initial lessons can be supplemented with case-specific research, both prior to and after initial trials, to learn how those foundational messages should be modified to fit the specifics of any particular fact pattern. It’s simple: With thorough preparation that includes the jurors’ perspective, complex litigation isn’t so complex after all.
HawkPartners can help pharma companies as they navigate this path to the new normal, whether it be understanding HCP channel preferences, assessing the ROI of new channels or tactics, optimizing messages, refining sales aids, or other related areas.