12 Angry Surfers: Mock Trials Go Online

After months of preparation, the lawyers at Sanders, Simpson & Fletcher had their case almost ready for trial. The Springfield, MO, plaintiffs' firm of 11 lawyers had worked hard to fine-tune the civil case. Their client had the potential of being awarded significant damages. But the allegation ' sexual misconduct against a church pastor ' was tricky. Would the facts of the case resonate well with jurors?

The best way to find out would be with a mock jury trial. But rather than spending several days away from the office working with a live mock jury, last spring, the attorneys decided to take the case online, to a virtual jury. And in just a few days, says attorney Sophie Woodworth, it had responses from more than 50 “jurors.”

“We wanted to see if we were on the right track with our intended argument,” she says. “The feedback supported our positions. The process was quick, and the best part was it required a minimum of effort on our part.”

Woodworth has joined a growing group of lawyers seeking quicker, cheaper ways to get feedback about their cases. With technology already providing much in the way of trial support, it seems only natural that virtual communication has begun filling the mock jury gap.

“Online juries provide two distinct advantages,” says Chris Bagby, founder and president of Arlington-based eJury. “It helps you prepare for trial by giving feedback to help you try a better case. Secondly, the Internet provides a convenient opportunity to gather empirical data about a case by putting it in front of people who may never have stepped inside a courtroom.”

Many traditional jury-consulting firms now offer online mock jury services. Two of the better-known Web-based companies are eJury and Virtual Jury.

Bagby, a practicing lawyer, founded eJury in 1999. He says that he got the idea one day while watching the NBC television show “Dateline,” which featured trial coverage with an online poll for viewers to vote for the guilt or innocence of the defendant.

As Bagby watched the poll numbers on the screen climbing into the thousands, he realized the same service could be offered to lawyers seeking the input of a mock jury, but without the expense of a live event.

In the past, a live mock trial or focus group has generally been considered only in cases where significant monetary awards are anticipated. Gathering potential jurors, locating a convenient facility, attorney travel expenses, witness fees and other associated expenditures can send mock-trial costs skyrocketing.

“That makes focus groups and mock juries not feasible for the average case,” Bagby says. “But online, attorneys get the equivalent of several jury opinions in less time, and for a lot less money.” Live mock juries may consist of no more than 12 people, while online juries can include 50 or more participants.

How It Works

To submit a case for consideration, attorneys provide the online service with a factual summary of the case, including the claims and expected defense of both parties. Photos or other visual exhibits can be provided to be scanned into the system for viewing. The lawyers also provide jury instructions, or charges, to be given at trial, and include any additional questions designed to solicit feedback from the jurors about the case.

The service searches its database for the names of potential jurors who match the demographics of the trial venue; done by sifting through information on income, education, family background, political affiliations and other pertinent data potential jurors provide when they register with the provider.

Those who match the requested demographics are e-mailed a chance to participate in the case. And unlike many courthouse jurors, most cyberjurors welcome the chance to serve. In fact, many have referred friends and relatives. That kind of viral marketing has enabled the online sites to build a database of more than 100,000 potential jurors who have a wide variety of income and professions.

“Jurors are interviewed and prescreened, just as with live focus groups,” says Robert Gordon, founder and president of Virtual Jury, based in Addison. “But the trial process is much more relaxed, so you often get a unique perspective and much more information than you would in a traditional setting.”

Turnaround time is fairly quick, generally 3 to 5 days. Lawyers receive statistical data on the jurors and their findings, along with summaries and individual juror comments.

At eJury, jurors consider the merits of the case individually. At Virtual Jury, participants utilize a chat-room experience for group deliberations. Moderators oversee the process, encouraging comments from less forthcoming jurors. Gordon says some attorneys even pose anonymous questions to jurors or just tune in to watch as comments are made.

Online juries can also be used to determine how a case might slant in a particular jurisdiction, helpful information to have when determining filing venue. “You can get an early read, or a snapshot, of the area's values, or how a case might be viewed in different jurisdictions,” says Gordon.

But what about the lack of personal contact? Voice intonations, facial expressions and body language contribute significantly to the deliberation process. “Online feedback can certainly be helpful in an informational sense,” says Nancy Marder, a professor at Chicago-Kent College of Law. “But I don't think these are a complete substitute for, or predicative of, what an actual jury might do.”

Even the courthouse experience itself has an impact on jurors, Marder says. “Just the physical presence in the courthouse, your sense of responsibility as a juror. That can't be replicated online.”

That point gets no argument from the service providers. Bagby and Gordon agree that live mock juries are still an important part of the process. They say that some cases are actually better suited for live presentation. Straightforward tort, criminal defense or even domestic relations cases work well for online juries.

On the other hand, complicated facts are harder to present in the virtual world. “Cases like commercial litigation or intellectual property don't translate well,” says Gordon. “Trying those cases online, it's better to pick one aspect of the case to be considered; for example, is a company entitled to lost profits or should punitive damages be awarded? Narrowing it down to one issue simplifies the process.”

At eJury, charges are based on the number of pages of data and questions submitted. Bagby says the average case, with seven pages of facts and 10 questions, costs approximately $1,500, but costs can range from $600 to $4,000.

At Virtual Jury, an average case costs about $8,500, Gordon says. The service includes statistical data and comments, as well as a transcript of the deliberation process. The site also offers streaming video, although many cyberjurors still lack the technology to reliably view video.

When Woodworth's firm finally went to trial in May 2004, the input from the online jurors gave her and the lead partners a boost of confidence. Their work was rewarded with a $6 million verdict for their client, which, Woodworth noted, was right in line with the award given by the online mock jury.

After months of preparation, the lawyers at Sanders, Simpson & Fletcher had their case almost ready for trial. The Springfield, MO, plaintiffs' firm of 11 lawyers had worked hard to fine-tune the civil case. Their client had the potential of being awarded significant damages. But the allegation ' sexual misconduct against a church pastor ' was tricky. Would the facts of the case resonate well with jurors?

The best way to find out would be with a mock jury trial. But rather than spending several days away from the office working with a live mock jury, last spring, the attorneys decided to take the case online, to a virtual jury. And in just a few days, says attorney Sophie Woodworth, it had responses from more than 50 “jurors.”

“We wanted to see if we were on the right track with our intended argument,” she says. “The feedback supported our positions. The process was quick, and the best part was it required a minimum of effort on our part.”

Woodworth has joined a growing group of lawyers seeking quicker, cheaper ways to get feedback about their cases. With technology already providing much in the way of trial support, it seems only natural that virtual communication has begun filling the mock jury gap.

“Online juries provide two distinct advantages,” says Chris Bagby, founder and president of Arlington-based eJury. “It helps you prepare for trial by giving feedback to help you try a better case. Secondly, the Internet provides a convenient opportunity to gather empirical data about a case by putting it in front of people who may never have stepped inside a courtroom.”

Many traditional jury-consulting firms now offer online mock jury services. Two of the better-known Web-based companies are eJury and Virtual Jury.

Bagby, a practicing lawyer, founded eJury in 1999. He says that he got the idea one day while watching the NBC television show “Dateline,” which featured trial coverage with an online poll for viewers to vote for the guilt or innocence of the defendant.

As Bagby watched the poll numbers on the screen climbing into the thousands, he realized the same service could be offered to lawyers seeking the input of a mock jury, but without the expense of a live event.

In the past, a live mock trial or focus group has generally been considered only in cases where significant monetary awards are anticipated. Gathering potential jurors, locating a convenient facility, attorney travel expenses, witness fees and other associated expenditures can send mock-trial costs skyrocketing.

“That makes focus groups and mock juries not feasible for the average case,” Bagby says. “But online, attorneys get the equivalent of several jury opinions in less time, and for a lot less money.” Live mock juries may consist of no more than 12 people, while online juries can include 50 or more participants.

How It Works

To submit a case for consideration, attorneys provide the online service with a factual summary of the case, including the claims and expected defense of both parties. Photos or other visual exhibits can be provided to be scanned into the system for viewing. The lawyers also provide jury instructions, or charges, to be given at trial, and include any additional questions designed to solicit feedback from the jurors about the case.

The service searches its database for the names of potential jurors who match the demographics of the trial venue; done by sifting through information on income, education, family background, political affiliations and other pertinent data potential jurors provide when they register with the provider.

Those who match the requested demographics are e-mailed a chance to participate in the case. And unlike many courthouse jurors, most cyberjurors welcome the chance to serve. In fact, many have referred friends and relatives. That kind of viral marketing has enabled the online sites to build a database of more than 100,000 potential jurors who have a wide variety of income and professions.

“Jurors are interviewed and prescreened, just as with live focus groups,” says Robert Gordon, founder and president of Virtual Jury, based in Addison. “But the trial process is much more relaxed, so you often get a unique perspective and much more information than you would in a traditional setting.”

Turnaround time is fairly quick, generally 3 to 5 days. Lawyers receive statistical data on the jurors and their findings, along with summaries and individual juror comments.

At eJury, jurors consider the merits of the case individually. At Virtual Jury, participants utilize a chat-room experience for group deliberations. Moderators oversee the process, encouraging comments from less forthcoming jurors. Gordon says some attorneys even pose anonymous questions to jurors or just tune in to watch as comments are made.

Online juries can also be used to determine how a case might slant in a particular jurisdiction, helpful information to have when determining filing venue. “You can get an early read, or a snapshot, of the area's values, or how a case might be viewed in different jurisdictions,” says Gordon.

But what about the lack of personal contact? Voice intonations, facial expressions and body language contribute significantly to the deliberation process. “Online feedback can certainly be helpful in an informational sense,” says Nancy Marder, a professor at Chicago-Kent College of Law. “But I don't think these are a complete substitute for, or predicative of, what an actual jury might do.”

Even the courthouse experience itself has an impact on jurors, Marder says. “Just the physical presence in the courthouse, your sense of responsibility as a juror. That can't be replicated online.”

That point gets no argument from the service providers. Bagby and Gordon agree that live mock juries are still an important part of the process. They say that some cases are actually better suited for live presentation. Straightforward tort, criminal defense or even domestic relations cases work well for online juries.

On the other hand, complicated facts are harder to present in the virtual world. “Cases like commercial litigation or intellectual property don't translate well,” says Gordon. “Trying those cases online, it's better to pick one aspect of the case to be considered; for example, is a company entitled to lost profits or should punitive damages be awarded? Narrowing it down to one issue simplifies the process.”

At eJury, charges are based on the number of pages of data and questions submitted. Bagby says the average case, with seven pages of facts and 10 questions, costs approximately $1,500, but costs can range from $600 to $4,000.

At Virtual Jury, an average case costs about $8,500, Gordon says. The service includes statistical data and comments, as well as a transcript of the deliberation process. The site also offers streaming video, although many cyberjurors still lack the technology to reliably view video.

When Woodworth's firm finally went to trial in May 2004, the input from the online jurors gave her and the lead partners a boost of confidence. Their work was rewarded with a $6 million verdict for their client, which, Woodworth noted, was right in line with the award given by the online mock jury.