Imagine knowing what a jury is going to do — whether they will find liability, how they will apportion it and how much they will award in damages — before voir dire even begins.
“The last five trials I’ve gone to I’ve been armed with the answer to those questions before the trial even starts,” Brent Walker of Brent Walker Law told The Texas Lawbook in a recent interview. “It’s sort of like playing poker and knowing what the cards are going to be.”
In late April, Walker was among the trial lawyers and educators who spoke at a jury science conference in Madrid (dubbed JuryBall — a play on the book and movie Moneyball), espousing the benefits of using big data to get better results for clients in jury trials.
He told attendees how the data — specifically large-scale online studies that gather opinions on the facts and value of a case from as many as 2,000 individuals, rather than a group of 12 or 20 in a mock jury or focus group — has influenced the last four eight-figure verdicts he received in the courtroom.
“As long as there have been trial lawyers there’s been the belief that the practice is an art, based on intuition, and must be informed by great experience and our solid-gold guts and instincts,” Walker said. “And what these researchers have been demonstrating over time … is that most questions in a case are empirical, having fixed and correct answers.”
“Human beings are blessedly predictable.”
Walker was an early adopter of the statistical analysis and empirical methods developed by John Campbell, who started studying juries in 2011 while teaching at the University of Denver Sturm College of Law. Together with his wife, Alicia Campbell, he founded Empirical Jury, a firm focused on helping lawyers diagnose strengths and weaknesses in a case and better understand the value of the case to an average juror.
“Now if someone were to say … ‘I’m getting good verdicts already, and I’m charming and good in front of a jury,’ I would say all that’s true,” Campbell told The Lawbook. “But if you’re a great lawyer, then imagine how good you’ll be if you have the best information possible.”
“It’s like having X-ray vision into what a jury is most likely to do.”
Campbell and his team have worked with about a dozen trial lawyers in Texas over the past decade or so, and he said he’s noticed skepticism about the value of the big data studies has waned over time.
“Eight to 10 years ago, there was a larger camp of, ‘Oh, come on, you can’t apply science to this. Juries are unpredictable, and every jury is different,’” he said.
But something happened around the time of the pandemic, and over the past five or so years, he said he finds himself answering fewer questions from skeptics.
“And part of that is that people had to go online, had to have Zoom calls and had court hearings by Zoom,” Campbell said. “And I think a lot of these feelings that people online aren’t real or aren’t paying attention kind of went away.”
Randy Sorrels of Sorrels Law is another attorney who has added Campbell’s data to his jury trial toolbox. But Sorrels explained to The Lawbook in a recent interview that while he sees the value in the JuryBall data, he goes with an all-of-the-above approach to trial prep — employing mock trials and focus groups as well to gain the best understanding of his case’s strengths and weaknesses.
“The skills of a defense lawyer or plaintiff lawyer can certainly make a difference,” he said. “But we want to know what’s the lowest common denominator. We’ve had more settlements than verdicts, but a couple of verdicts we’ve had have been right in the range of what the data said.”
Sorrels likened using the data surveys to an executive of a company seeking feedback from the executive team and putting that information to use in practice. While Campbell admits the study isn’t an exact down-to-the-dollar roadmap of what a jury will do, Sorrels said it has “usually” proven to be correct in his experience.
“Those of us who are information hungry are liking this stuff,” he said. “And some people think ‘I know what it is,’ and I’m guessing they lost a whole bunch of trials if they think they know everything.”
Walker said the data has proven useful, even outside of the courtroom, in mediations. The first time he showed a defense attorney the big data study while mediating a personal injury case, the reception was cold.
“They said ‘You cooked this up, you slanted it … to get what you want,’” Walker recalled. “And I didn’t do that, there’s no reason to do that.”
The case didn’t settle.
At trial, a jury awarded what Walker said was an “identical” result to what the study showed would happen.
“The next time I had a case with the same mediator, I said, ‘Here’s my big data study, here’s what the case is worth,’” Walker said. “The other side didn’t believe it, and the mediator said, ‘I’ve seen this movie, and I know how it ends.’”
Walker said he believes the tool, and the potential for early resolution of disputes it presents, could eventually work to bring down the cost of legal services and reduce the backlog of cases in courts across the country. The cost of a smaller study, he said, is about $7,000, while those that curate the opinions of 2,000 or more participants can cost upwards of $20,000 to $25,000.
“For now, the tool is used mostly by plaintiff lawyers,” Campbell said.
“The next phase is, how fully does the defense get this and start to adopt it?” he said. “I’ve been surprised by how slow the uptake has been, that they’ve been, in my view, somewhat slow to it.”