Good Data Drives Out Bad Cases marketing expert witness and president of Applied Marketing Science, Inc., Robert L. Klein writes on the effective use of surveys in legal cases:
A survey can be a very effective way of helping a client see the true “beauty” of her case. For example, a survey showing that a patent infringement caused minimal lost sales can encourage a party to accept a smaller than hoped for settlement. A survey showing significant confusion due to packaging or trademark similarity, can motivate a defendant to negotiate rather than fight on. A survey establishing that marketplace realities bear little resemblance to the allegations can persuade a plaintiff to drop the case. When both sides are able to look at the same information and consider how that information will impact a judge or jury, cases settle. Armed with valid and reliable survey data, attorneys are better able to assess the merits of their case and advise their clients as to the best way to proceed.
Some attorneys may resist commissioning a survey for fear that the results will not be supportive of their client’s case. Surveys are not cheap, and sometimes the attorney’s instincts will be correct. But if a survey is going to expose the weakness of one side’s case, the other side should reasonably be expected to conduct the same survey and see the same result. The first side to know the truth can set the agenda for how the suit proceeds.