In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:
Sometimes even the results of a survey pre-test can be valuable. Pre-testing or pilot testing a survey is a standard research practice that often improves the survey by eliminating confusing wording or awkward question sequences. In addition, pre-testing can provide a rough indication of the likely results of a full-scale study. While the information that comes from pre-testing is not as precise as the results of a full-scale survey, the data can have an important impact on the strategy of the parties.
• In a case alleging trade dress infringement, the parties were attempting to negotiate a settlement while a pre-test of a survey was being conducted on behalf of the plaintiff. When the plaintiff’s representative in the negotiation introduced that very day’s pre-test results into the discussion, the defendant accepted the settlement offered.
• In a case involving cartoon characters on children’s clothing, the defendant maintained that there could be no confusion with the plaintiff’s trademarked character. Pre-test results in this case, however, showed a considerable amount of confusion. Recognizing that they were unlikely to prevail if they went forward with the case, the defendant withdrew the infringing characters.