Big Data is becoming ever more pervasive in trial preparation, and for good reason. To use it effectively, you must understand what it is, what it is not, and how it best fits in your toolbox. Conventionally, trial preparation has included focus groups and mock trials, but now that big data is on the scene, how do these tools play well together? When should you use one over the others? What exactly is Big Data, and why should you adopt it?
What is Big Data, and Why is it Useful?
Big Data is the nomenclature for any large data set study. Several vendors run Big Data jury studies, some of which are more valid and reliable than others, a topic I won’t cover in this article. However, you can contact me privately if you have a vendor and want to know my opinion.
The benefits of Big Data are its ability to extrapolate and predict. Most often, they are used to predict both liability and damages case outcomes. By running the case by several hundred jurors, we can fairly accurately predict what your best, worst, and average day in court would yield across different variables (such as damages “ask” or liability factors). For example, we can test the same case facts with three different damages asks: $10 million, $40 million, and $75 million. Let’s suppose that the low ask yields an average verdict of $5.5 million with a 75% win rate, the middle ask yields an average verdict of $30 million with a 78% win rate, and the large ask yields an average verdict of $25 million with a 60% win rate. That tells us that you are leaving tens of millions of dollars on the table by asking for $10 million, but $75 million angered jurors and caused them to punish you with a lower case value and win rate. You would then know that your ask at trial should likely be around $30 million and that you have a high probability of winning.
You will also receive a juror profile. At the outset, jurors fill out answers to several questions, often answering up to 80 intake questions. Their answers are then correlated with their liability and damages verdicts to give you a profile of a good or bad juror. These criteria are often things we can only learn from Big Data. For example, someone who watches the NFL might be 47% less likely to find in your favor while someone who regularly watches Double Jeopardy may be 35% more likely to give large damages.
How accurate is Big Data? It’s hard to tell as many cases settle and trial often brings surprises, but it is known to be fairly accurate, often within 5% of verdicts. Some of this accuracy, however, stems from properly preparing a Big Data study, which many fail to do.
Do I Need a Consultant to Run a Big Data Study?
No, you are not required to have a consultant, though I think it’s a mistake to run one without. I regularly review Big Data scripts submitted prior to my retention. I find various errors, including weak defense arguments, missing information, confusion, damages asks that are outside the limits of the venue caps, misinformation regarding expert opinions, and very frequently weak case framing. All of these can render Big Data results misleading and invalid, and all were missed by the Big Data vendors.
Avoiding these pitfalls is hard when you are immersed in the case. Most Big Data vendors will suggest having a consultant assist with the project. Those who run Big Data studies are statisticians and know how to work with data. Some are even attorneys. However, they do not have the skills or the time to read through case documents and converse with you about small but important details of the case. They may review your scripts and make suggested changes, but they are not involved in the depths of the case necessary to catch errors or create proper framing. Therefore, to save the integrity of the study, it is suggested to have a consultant assist on the front and back ends. When I work with Big Data, the costs are only slightly higher to have my involvement as I’m taking work off their plates in preparing the study properly. Thus, you can have a consultant on board to direct the research and dive deep into the case for the same price or a few thousand more.
Having a consultant help with Big Data is also essential for moving forward and implementing findings. When you find out what jurors are good or bad, how do you implement those questions into your voir dire? How much weight do you give them compared to what jurors say during voir dire? How do you implement the Big Data findings into your case framing? These are all issues a consultant can help with.
Big Data vs Focus Groups & Mock Trials
How does Big Data interact with focus groups and mock trials? Do we still need these smaller juror studies? Absolutely. Big Data is excellent at predicting damages and trial outcomes but not very useful for framing or understanding what jurors like or dislike about the case. It does nothing to show deliberations or group dynamics. Conversely, focus groups and mock trials are terrible at predicting damages or case outcomes but are fantastic for case framing, group dynamics, and getting feedback on issues with the case.
When budgets allow, I prefer to run a focus group or mock trial first to adjust case framing and then use that new frame for a more accurate Big Data study. However, suppose you are headed to mediation and need an early read on the case value. In that case, it may be worth running a Big Data study first and then running focus groups and mock trials, potentially running a second Big Data study later.
Costs
What does this all cost? As with most things in life, it depends. The price varies with the length of the statements and videos, as well as the number of damages anchors or other variables tested. If you would like a quote, don’t hesitate to reach out.
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