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JD Supra, LLC




For decades, litigators have relied on focus groups. While this approach can help identify issues for further exploration, attorneys often use focus groups to shape trial strategy or even predict outcomes. But focus groups are ill-suited for these applications because they suffer from three basic weaknesses: 1) they cannot explore unconscious decision-making; 2) they use too few mock jurors to provide reliable answers, and 3) they can become echo chambers that only surface a subset of the issues that an actual jury will consider.

Fortunately, recent technical advances in crowdsourcing and insights into human decision-making have opened the door to a better approach. We can now conduct largescale (i.e., 100’s to 1000’s of mock jurors) A vs. B experiments for trial attorneys. These experiments avoid the problems of focus groups and can be used to test any number of issues. We highlight some examples from our research including: 1) the effects of anchoring, 2) the problem with self-diagnosing bias, 3) how subsequent remedial measures affect juries; and 4) how juries respond to a variety of different jury instructions.

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