Using mind maps to guide early litigation
If you have ever worked with us, then you know we have two mantras: 1) Look at juror attitudes and experiences, not demographics, and 2) Start jury research sooner rather than later. So it should come as no surprise that we believe strongly in learning about jurors’ relevant attitudes and experiences as early as possible in any litigation. Although many traditional forms of jury research, such as in-depth focus groups and mock trials, aren’t as helpful or cost effective in the early stages of discovery, there are ways to gain valuable insight during those early stages. One method is to conduct online research into the litigation topic and related issues and construct mind maps, visual representations of concepts reflected in layperson comments.
To illustrate the benefits of this method, we used it to learn about lay attitudes towards a new prescription drug that, to our knowledge, has not yet been involved in litigation: flibanserin. Flibanserin is the so-called “female Viagra,” a libido-enhancement drug for women approved by the FDA just this year. We analyzed 475 on-line comments to stories about this specific drug and its approval process, and constructed mind maps. Our mind maps identified these concepts, among others: how flibanserin compares to other drugs/interventions, whether a decreased libido is a “real disease” requiring medical treatment, and concerns about female sexuality and autonomy. Here’s how these findings could be used in trial preparation:
Most laypersons will not be familiar with the drug, and as a result, will understand this drug in the light of drugs and interventions they do know. So flibenserin was compared to Viagra, HRT, cosmetic surgery, implants, and anti-depressants. This has implications for discovery (what comparisons, if any, do witnesses and documents offer?), theme development (X comparison is helpful, include it; & X comparison is misleading, address it), jury research (explore such comparisons further), and jury selection (identifying juror experience with “comparison” drugs and interventions).
Most jurors will have their own experiences with libido and will likely have strong opinions about whether lower libido is a genuine problem, what the cause is, and how/if it should be treated. Gaining a full understanding of different perspectives on lower libido and whether it should even be treated would help ensure that your trial themes resonate with the greatest number of jurors.
Commenters also expressed concerns related to female sexuality and agency: Could this drug make women lose control over their sexual urges, with negative practical and moral consequences? Who should be making these decisions about a woman’s body? Who even has standing to comment on this issue? These remarks demonstrate an underlying fear for women’s safety and autonomy – fears that are likely to be deeply rooted and capable of producing strong visceral reactions. The trial team should be acutely aware of and sensitive to such fears.
As the above example demonstrates, mind mapping can provide valuable and early insight into how jurors could view the products and major players in a litigation. It can alert you to any underlying hot button issues you should be sensitive to and/or prepared to address or debunk. Knowing this information early ensures that you are attuned to salient juror beliefs and attitudes when examining documents and that your witnesses and experts are prepared to explain or address juror concerns. It is also beneficial in guiding case strategy and theme development as well as providing direction for more case-specific research.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
