The Problem
Your carrier is probably guessing at what your case is worth. And the plaintiff's attorney knows it.
Ask most defense attorneys how they determine the value of a case. They'll tell you they consult prior verdicts in the venue, factor in the injury severity, weigh the liability picture, and apply their experience. In other words — they guess. Educated, experienced guesses, but guesses nonetheless.
On the other side of the table, the plaintiff's attorney may have run the case through a focus group. They've tested their narrative on real people pulled from the same community that will sit in the jury box. They know which arguments land, which witnesses are credible, and roughly what number a real jury would award. And they're negotiating with that knowledge while your team negotiates without it.
This information asymmetry is one of the most underappreciated drivers of nuclear settlements — cases that never make the news but cost carriers and their insureds enormous sums because nobody on the defense side knew what the case was actually worth.
The Hidden Epidemic
Nuclear verdicts — jury awards over $10 million — get the headlines. But experts at Courtroom Sciences argue the bigger and more expensive problem is the nuclear settlement: cases that settle for vastly inflated amounts because the defense didn't know what a real jury would actually award. These settlements never appear in verdict databases. Nobody talks about them. And they dwarf the number of nuclear verdicts by a factor of roughly 50 to 1.
"The more expensive problem in this industry isn't the nuclear verdict — it's the nuclear settlement that never reaches the newspaper, that no one wants to talk about."
Dr. Bill Kanaski, Ph.D. — Courtroom Sciences, Litigation Psychology Podcast
Research attribution: The data and insights in this briefing are drawn primarily from the published work and podcast commentary of Dr. Bill Kanaski of Courtroom Sciences, a jury consulting and litigation science firm with over 30 years of research experience. Additional context is sourced from Tyson & Mendes LLP research and FDCC expert commentary. The alliance's advocacy positions build on this research from the member and insured perspective.
The Timing Problem
Jury research done two months before trial is almost useless. Here's why — and when it should happen instead.
When carriers do invest in jury research, they typically do it wrong in one critical way: they do it too late. The conventional model has been to commission a mock trial or focus group in the final weeks before trial — when the case is already fully developed, witnesses are locked in, the theme is set, and the negotiating window has largely closed.
If that research reveals a $50 million problem, there is almost nothing the defense can do with that information. The window to reshape the case, develop alternative arguments, or use the data to negotiate a reasonable settlement has already passed.
When Jury Research Should Happen — And What It Can Do at Each Stage
★
File Opens · Months 1–3
Early Focus Group — Case Valuation & Theme Development
A focus group at file opening establishes a scientific baseline for case value. Results can be used to set accurate reserves, guide discovery strategy, develop the defense narrative from the start, and enter mediation with data rather than instinct. This is when research changes outcomes most.
Highest Impact — Strongly Recommended
2
During Discovery · Months 3–12
Mock Trial — Theme Testing & Mediation Preparation
Seven out of ten mock trials and focus groups should now be conducted during discovery according to Courtroom Sciences research — before mediation, not after it fails. Mock jury data gives the mediator a credible scientific counter to inflated plaintiff demands and gives the claims adjuster documented justification for any settlement they recommend internally.
High Impact — Best Practice
3
Pre-Trial · 60–90 Days Out
Full Mock Trial — Witness Prep & Jury Selection Strategy
Pre-trial research is still valuable for refining opening statement structure, identifying witness preparation needs, and developing voir dire and jury selection strategy. At this stage research confirms or adjusts the trial plan but cannot fundamentally reshape the case.
Moderate Impact — Better Than Nothing
✕
After Settlement Fails · Eve of Trial
"Let's Do Research If The Case Doesn't Settle"
This is the most common — and most damaging — sequencing mistake in the industry. Conditioning jury research on whether settlement fails means doing research at the single worst moment possible: after the negotiating window has closed, after the case has fully developed, after alternatives have been exhausted. At this point research can only confirm bad news.
Lowest Impact — Common Mistake
The Financial Case
The cost of jury research is fixed. The cost of not doing it isn't.
The most common objection to jury research is cost. A properly conducted focus group or mock trial runs between $50,000 and $150,000 depending on scope and market. For many claims professionals working within tight file budgets and incentivized to minimize per-file spend, this feels like a large number.
The financial logic, however, is straightforward. The cost of jury research does not change based on when you do it. A $100,000 mock trial costs the same whether conducted in month three or month thirty-six. What changes dramatically is what you can do with the results.
Return on Investment
The math behind the $50,000 decision
$100K
Typical cost of a full mock trial with jury science methodology
vs.
$10M+
Threshold for nuclear verdict or nuclear settlement
=
100×
Minimum potential return on a single high-exposure file
$0
Difference in research cost between doing it early vs. doing it late — the investment is the same regardless of timing
50×
Approximate ratio of nuclear settlements to nuclear verdicts — the cases nobody talks about are the bigger problem
2–3 yrs
How far in advance of trial research must happen to be most useful in reshaping case strategy and mediation position
Sources: Courtroom Sciences (Dr. Bill Kanaski), Litigation Psychology Podcast series. Investment figures are illustrative ranges based on practitioner commentary and do not represent guaranteed outcomes.
The Structural Barrier
Claims adjusters are incentivized to minimize file spend — not to win cases. This is the real reason jury research doesn't happen.
Understanding why carriers consistently underinvest in jury science requires understanding how claims professionals are evaluated. In most carrier organizations, claims adjusters are measured and compensated based on per-file spend efficiency — keeping costs low on individual files. Investing $100,000 in a mock trial registers on their scorecard as a cost, regardless of what that investment might prevent.
Contrast this with companies that carry significant self-insured retentions — the first $5 million or $10 million of any loss comes directly from their own balance sheet. These companies, according to Courtroom Sciences, invest in jury science readily and willingly because the financial connection between upfront research and ultimate loss is direct and personal.
For members of the Alliance, understanding this structural dynamic is important because it explains a gap between what carriers say they will do and what actually happens on high-exposure files.
⚠
Case value based on instinctReserves set from attorney gut feel and comparable verdicts rather than actual juror data from the specific venue and case facts.
✓
Case value based on scienceReserves informed by mock jury data showing what a real panel from the actual venue would award on the actual facts.
⚠
Blind mediationDefense enters mediation without data, allowing plaintiff counsel to set the negotiating anchor unchallenged with inflated demand figures.
✓
Mediation with dataDefense enters mediation with scientific evidence of case value, giving the mediator a credible counter to inflated demands and protecting the adjuster internally.
⚠
Narrative developed lateDefense theme and trial story shaped in the final weeks, when discovery is closed and case facts are locked.
✓
Narrative developed earlyMock trial results reveal which arguments resonate and which fall flat — months before trial when strategy can still be adjusted.
⚠
Risk aversion exploitedWithout data, inflated demands create career-anxiety pressure on adjusters and counsel — driving nuisance settlements on cases that should be tried or settled for far less.
✓
Risk aversion defendedScientific evidence gives claims professionals documented justification to resist inflated demands and explain any settlement decision to management.
Standards of Practice
What rigorous jury science actually looks like — and why not all research is equal.
Not all jury research is created equal. The jury consulting industry is largely unregulated, and the quality of research varies enormously between practitioners. Understanding the difference between rigorous scientific methodology and an informal focus group matters because poor research produces misleading results that will misinform your settlement strategy.
Methodology
Structured Sub-Panel Deliberations
Proper mock trial methodology breaks participants into sub-panels of 6–8 who deliberate as a group before reporting damages. Averaging all individual responses produces statistically misleading numbers. Group deliberation mirrors what actually happens in a real jury room and produces valid, reliable data.
Recruitment
Venue-Matched Participants
Mock jurors must be recruited from the actual venue where the case will be tried — not from convenience panels or online survey pools. Juror attitudes, anti-corporate sentiment, and economic distress vary dramatically by geography. Results from the wrong population produce dangerously misleading case valuations.
Credentials
Behavioral Science Training
The jury consulting industry is unregulated. Many practitioners lack formal training in the scientific method. Research conducted by consultants with advanced degrees in behavioral science, psychology, or neuroscience produces more valid and defensible results than that conducted by former attorneys or political science graduates.
Format
Full Trial Format Mock
A properly structured mock trial includes opening statements, witness clips, expert testimony excerpts, and closings — not just a case summary read aloud. The closer the format mirrors actual trial conditions, the more accurate the predictive value of the research. Structured questioning at each stage produces more granular intelligence.
Timing
Research Before Mediation
Mock trial data belongs in the mediation room as well as the courtroom. Carriers and counsel should enter mediation with a written research report they can share with the mediator — demonstrating scientifically what a real jury would award versus what plaintiff is demanding.
Post-Trial
Juror Interviews After Verdict
Post-verdict juror interviews — conducted by someone other than lead trial counsel — are one of the most underutilized tools in the defense toolkit. Jurors tell independent interviewers things they won't say to the attorneys. This intelligence shapes future case strategy at the portfolio level.
Alliance Advocacy Position
What the Alliance advocates on your behalf regarding jury science
The Alliance advocates that carriers handling member excess liability demonstrate a documented approach to jury science on high-exposure files — not as an optional enhancement but as a standard component of responsible claims management on cases with nuclear verdict exposure.
Early investment standard: On any file flagged for nuclear verdict exposure — catastrophic injury, death, egregious conduct, bad-facts electronic evidence, or judicial hellhole venue — jury research should be conducted during the discovery phase, not conditioned on settlement failure.
Mediation data standard: Carriers should enter mediation on high-exposure member files with mock jury research in hand — giving the mediator scientific case valuation data and giving the claims professional documented justification for any settlement recommendation.
Scientific methodology standard: Jury research on member files should be conducted by qualified practitioners using rigorous behavioral science methodology — venue-matched recruitment, structured sub-panel deliberations, and formal written reporting.
Jury consultant at trial: On cases with $10 million or more in plaintiff demand, the Alliance advocates for carrier approval of a qualified jury consultant for voir dire and jury selection — one of the highest-leverage investments available at the trial stage.
Questions to raise with your broker about jury science on your files
Has our carrier conducted any jury research on our high-exposure files? If so, when was it done — before or after mediation? Were the results used to inform the mediation position?
How is case value being determined on our files? Is it based on attorney experience and comparable verdicts, or has scientific mock jury research been used to establish a data-backed baseline?
Is our claims adjuster entering mediation with supporting data or going in blind — allowing plaintiff counsel to set the negotiating anchor with an unchallenged inflated demand?
On any file flagged as a potential nuclear verdict case — catastrophic injury, egregious conduct, bad venue — has early jury research been approved and budgeted? If not, why not?
After any verdict on our files, were jurors interviewed? What did the Alliance learn from the jury's perspective, and how has that intelligence been applied to similar cases in the same venue?
The Alliance does not manage claims on behalf of members. What the Alliance does is ensure that members understand the standards that distinguish responsible carrier claims management from the status quo — and that members and their brokers have the language to advocate for those standards on high-exposure files.
Jury science is not a luxury. On a file with $50 million in exposure, it is the most cost-effective investment available. The question is whether it is being made — and whether it is being made at the right time.
For additional briefings in the Jury Science Series, or to access other resources in the member library, speak with your broker or visit your member portal.