Surveys or a community analysis are another of the tools that trial consultants have at their disposal. The primary application is for jury profiles and change of venue. It is our opinion that surveys are appropriate for a very limited number of cases and are generally high-ticket items with limited returns. The one notable exception is when contemplating a change of venue.
A properly prepared survey can be invaluable in deciding:
- Should the attorney move to change venue; and,
- What venue would be most receptive to the client’s litigation?
This type of survey is generally much more helpful in criminal cases that have received substantial publicity. On rare occasions, we have been involved in civil cases that involved potential changes of venue. If an attorney has a civil case that has received extensive and prolonged pretrial publicity, then a change of venue survey would be extremely helpful.
The other use for a survey is for determining attitudes in the community and the development a juror profile. Our opinion is that surveys tend to be extremely expensive and of limited value.
The key to a good survey is two-fold:
- The survey instrument must be drafted by a trial consultant and a pollster to make sure that the instrument does not contain any bias; and,
- The other critical part of a survey is making sure that the individuals who are conducting the interviews are actually recording correct information. We have learned that college students are often hired to record information and that they get paid on a per-completed interview basis. Our random review of one survey revealed that a full one-third of the completed interviews were either made up, included erroneous information, or came from friends or family members of the college student pollster. It is a very disturbing thought that a lawyer or client would spend this kind of money and not be able to rely on the information.
If an attorney is inclined to conduct some kind of community attitude survey or jury profile survey, a minimum of 450 completed interviews are necessary to obtain statistically sound information. With 450 completed interviews, the margin of error is approximately 3% to 4%. Another risk that one must keep in mind with this type of research is that often the opposing side learns about the research because the lawyer or a friend of the lawyer has been contacted in the survey process. The risk of this happening is decreased in large cities, but we have seen this happen in both small and large communities. If the attorney is not concerned about the other side learning that a survey is being conducted (the results of the survey are privileged under the work product privilege), and the client has the resources to conduct the research, it can be of some value.
The cost of surveys are generally driven by how much time the attorney has given the consultant and pollster to conduct this survey, the number of jurisdictions being tested, the number of completed interviews, and the depth of analysis. In our experience, surveys range in price anywhere from $15,000.00 to $50,000.00, or more.