WINNING FORMULAS: APPLYING SCIENCE TO LITIGATION
By: Richard W. Epstein, Managing Partner

In litigation an attorney’s job is to determine the facts and themes which will convince jurors to decide in favor of his client. At Ekker, Kuster, McConnell, & Epstein, we apply the same statistical and demographic data and formulas to litigation that politicians and corporations have used to win elections and market their goods and services.
In 2001, Dr. Oscar McKnight and Mr. Richard Epstein formed Scientific Legal Services (www.scientificlegalservices.com) to bring the science of statistics and market research to litigation. No corporation or politician would release a new product to market or run a political campaign without market research, and Ekker, Kuster, McConnell & Epstein does not mediate or try a complex case without testing the facts and arguments of the case on potential jurors.

Basically, the process works as follows:

• Dr. McKnight and the lawyers of Ekker, Kuster, McConnell & Epstein work with the litigation team to develop a statistically valid survey that contains all of the important aspects of the case. The conceptual development begins with professional readers highlighting the important facts of the case. Advanced psychometric techniques are then applied to these facts to validate both the conceptual development and questions of concern.
• Once the survey is validated, it is distributed to three separate population pools to answer the questions presented in the survey.
• The same statistical analysis and formulas that are used by political candidates (Karl Rove) and major corporations to develop winning themes for elections or marketing campaigns are used by SLS to predict the outcome of litigation.
• SLS measures and evaluates key facts, issues, demonstrative evidence, and attorney presentations such as openings or closings in order to predict their effect on the outcome of a case.
• The process is creative and fluid and can be used to measure anything that the litigation team desires.
• The core product provides an invaluable comment section which mimics jury deliberations, giving the lawyer an understanding of why a certain result was obtained and which factors influenced the result.

These techniques have been used by EKME in automobile accidents, construction accidents, sexual harassment, age discrimination, nursing home negligence cases, and medical malpractice claims. Through our demographic and statistical analysis, EKME obtains a clear measurement of the amount of damages jurors will return as well as the arguments to use to impose liability and damages.
In a sexual harassment case, they determined that the female attorney’s jewelry distracted potential jurors and that the male attorney did not fit the juror’s perception of a bank attorney. In a construction accident case, Ekker, Kuster, McConnell, & Epstein was able to measure the impact of a severely injured plaintiff’s hunting trip with the defendant three months after the accident or his use of an ATV on the value of his claim.
By applying Science Legal Services to litigation, Ekker, Kuster, McConnell & Epstein can dramatically increase the odds of success for their clients.

Richard Epstein is the Managing Partner at EKME. He is a litigation attorney and has been practicing law since 1978.

THE INFORMATION PROVIDED IN THIS ARTICLE IS PROVIDED FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS ARTICLE IS INTENDED AS LEGAL ADVICE, NOR SHOULD IT BE INTERPRETED AS SUCH. IF YOU NEED ADVICE REGARDING LEGAL MATTERS, SEEK THE ADVICE OF AN ATTORNEY.