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The Smith Co. brings a lawsuit against the Jones Co. for millions of dollars in damages. The case is filed in Green County, a small, quiet community, but an ominous place for a defendant like Jones. Half the county works at Smith or knows someone who does, and Jones fears that the plaintiff’s home field advantage goes beyond having a bigger locker room and a louder cheering section. The refs � that is to say the jurors � themselves may turn a blind eye to precisely half the fouls, so that no matter which way the coin toss falls, Jones will always be running uphill. The law recognizes Jones Co.’s concerns, providing for changes of venue in civil litigation “in the interest of justice.” 28 U.S.C. 1401a. Although such motions are more common in criminal cases, where they often are based on the frequency, spread, content and even tone of pretrial publicity, a few lessons do transfer to the civil realm. In both civil and criminal venue change motions, the size of the community and perceptions of the parties can be determinative. Perceptions of the parties to a civil suit, instead of deriving from pretrial publicity, tend to come from economic and social considerations, especially in smaller communities. For example, in Smith v. Jones, the importance of the plaintiff to the Green County economy in terms of jobs or taxes means local jurors could have an interest in the outcome of the trial. This self-interest, in the words of one court decision, raises the “risk of a possible subliminal bias.” Long Island Lighting Co. v. New England Petroleum Corp., 362 N.Y.S.2d 350 (Queens Co., N.Y., Sup. Ct.). Because it may be unclear how much of an economic or social impact is enough to impede “the interest of justice,” the movant must show both the presence of such factors and their likely impact on a venire. Observers have spoken to the likely impact on a civil venire in an experimental test of the home field advantage. Reid Hastie et al., “Do plaintiffs’ requests and plaintiffs’ identities matter?” in Punitive Damages: How Juries Decide 62-74 (Cass R. Sunstein et al. eds., 2002). This study found that punitive damages differed when parties to the suit were based in the same location as the jurors as opposed to a distant city. The hometown plaintiff was awarded significantly more � $25 million more in median damages � than a remote plaintiff. Furthermore, the remote plaintiff was 90% more likely than the local one to receive nothing in punitive damages. That local plaintiffs would receive higher awards is entirely consistent with the findings of decades of social psychological research. This research has found that even when people are grouped according to arbitrary distinctions, like eye color or art preference, and even when members of each group do not know one another or have any physical interaction whatsoever � in other words, even when the groupings exist entirely in the mind � people tend to favor their in-group and derogate an out-group. If such biases can be demonstrated when no real differences exist, even greater prejudice is certain to arise among jurors who live within blocks of a plaintiff’s employees and attend the same churches, and whose children attend the same schools. Sharing group membership, not to mention having some stake in the financial health of one of the litigants, would also affect the way in which jurors respond to persuasive appeals from the two sides. Research shows when some entity, like the largest employer in the county, is viewed as important, people will devote more effort toward evaluating persuasive messages about that entity. Unfortunately for the defendant, however, if its advocacy conflicts with pre-existing feelings toward the local plaintiff, jurors are likely to focus their mental energies on finding reasons to accept the plaintiff’s arguments and dismiss the defendant’s. Richard E. Petty and John T. Cacioppo, Involvement and Persuasion: Tradition Versus Integration, Psychol. Bull. 107, 367-374. Implacability of bias Cognitive and motivational biases such as these are difficult for most people to discern within their own psyches, let alone correct. Efforts to counter such influences can actually have the paradoxical effect of increasing the bias. Most cogently, this has been noted in jury research, which shows that instructions from the bench often have the effect of making extra-evidentiary information even more salient to jurors than it would be without the admonition. Nor is voir dire likely to remedy the bias against a defendant like Jones. For example, studies on the efficacy of voir dire in reducing the effects of pretrial publicity in criminal trials foster little optimism. Further, not only are jurors themselves ill-equipped to detect and compensate for such biases; research has shown that judges and attorneys often are unable to determine whether and which jurors should be challenged for cause. See Amy J. Posey & Lawrence S. Wrightsman, Trial Consulting 58-59 (2005). Given the consequences of such biases, one avenue for seeking redress is to demonstrate their presence in a change-of-venue study. Such a study likely will take the form of a telephone survey, but potential biasing factors in the study itself can undermine its validity and expose it to criticism from the opposition. These methodological biasing factors fall under the rubric of error, primarily from four sources: sampling error, specification error, measurement error and statistical error. Sampling error occurs when the survey respondents are not truly representative of the target population. A representative sample is one in which every member of the target population has an equal chance of participating in the study. For venue analyses, the target population consists of the jury-eligible residents of the venue to be examined. Unless one possesses the same rolls the local courts use to summon jurors, the sampling frame � or those who actually will be contacted � will be households with landline telephones. Households are called using random-digit dialing from lists prepared by sample vendors, including unlisted numbers. Since all but about 5% of American households have landline telephones, this approach usually reaches a reasonably representative sample of prospective jurors. Additional screening questions, about age, voter registration or drivers’ licenses further serve to ensure jury eligibility. Survey screening should exclude anyone who would probably be excused for cause � for example, employees of Smith or Jones or their families. A critical question in the 21st century is how telephone surveys are affected by the growing use of cellphones. As long as cellphone users also have landlines, survey samples may still be representative, but the number of people exclusively using cellphones is increasing. The cell-only population is younger than those who have landlines. In spite of this, they do not seem to possess different attitudes, at least in the political realm. Furthermore, for jury research the question may be moot, since younger people are also underrepresented in many jury rolls. See American Society of Trial Consultants, Standards for Survey Research in Connection With Motions to Change Venue (1999). The extent to which a sample’s characteristics deviate from the population’s affects the margin of error. The error margin is defined as the percentage by which the reported results could diverge from a canvass of every member of the population. Just as in a political poll, what usually is more important is a comparison, say, between candidates or venues. If the difference between the two is greater than the error margin, then the results can still be valid. The exclusion of part of the population from the survey � whether because they only use cellphones, do not answer their phones or refuse to participate outright � can inflate the error margin. At the same time, the more critical question is whether the reason for their nonresponse is related to the purpose of the survey. With sampling error, as with other sources of error, if the issues raised in the survey are unrelated to the error source, then they probably do not affect the study’s findings. For example, if a change-of-venue survey were being conducted in a case involving a cellphone provider, then the underrepresentation of cell users could be critical. Specification error The second source of error, specification error, arises when the questions do not tap the concept of interest. The concept of interest in a civil change-of-venue study often is specified by statute. For example, in Kentucky, Ky. Rev. Stat. Ann. � 452.010, reads: “(2) A party to any civil action triable by a jury in a Circuit Court may have a change of venue when it appears that, because of the undue influence of his adversary or the odium that attends the party applying or his cause of action or defense, or because of the circumstances or nature of the case he cannot have a fair and impartial trial in the county.” Thus, if the case of Smith v. Jones were being heard in real-life Green County, Ky., the change-of-venue survey would focus on Smith’s “undue influence” and Jones’ “odium” among potential jurors. So, should questions like the following appear in a change-of-venue telephone survey?: • There’s a lawsuit in which Smith Co. (that big factory down the road where half your neighbors work) is suing the Jones Co. Do you think Smith Co. has undue influence in Green County? • Which company is more odious to you, Smith or Jones? • If you were a juror in this lawsuit, could you be fair? Of course, none of these questions is suitable. Although all three might assess the appropriate ideas, thus ostensibly reducing specification error, such questions doubtless would increase measurement error. The risk of measurement error increases when something about the question or the respondents skews the results. For example, in the first question, informing the survey respondents about the lawsuit is counterproductive, since it arouses all the psychological biases described above. Asking which of the two parties in the lawsuit is more “odious” also invites measurement error, since many jurors will be unfamiliar with that adjective; in general, a telephone survey should be geared to an 8th grade reading level or lower. Finally, asking about a person’s ability to set aside his or her biases is futile, again for the reasons outlined above: Most people have little ability to detect their own biases, let alone truly compensate for them. The last source of error is statistical error. Usually, the statistical analyses at the heart of a change-of-venue study will compare the target venue with one or more alternative venues chosen to be similar in terms of demographics and convenient to the court, attorneys and witnesses. In comparing the target and alternative venues along the dimensions specified by statute, statistical error is presumed negligible if the analysis is statistically significant � i.e., achieves a “p-value” of 0.05. This “p-value” represents the probability that whatever difference one detects between the two venues might have occurred by chance alone. In other words, if the study in this example were repeated a hundred times, then one would expect spurious results in five replications, and by pure bad luck, this particular study just happened to be one of those five. Keeping it simple Finally, all sources of survey error, as well as methodological or substantive challenges, can be limited by keeping the change-of-venue study simple, conservative and transparent. Simplicity entails not only writing the survey at a middle-school reading level, but also keeping it short and to the point. This also helps with sampling error, since survey refusals increase with the length of the interview. Simplicity extends to the types of analyses conducted. More complex analyses will be more difficult to interpret and thus more open to criticism. Making the survey study conservative and transparent means avoiding the temptation to report only the more favorable data or analyses. The final survey report should include descriptions of how the survey was designed, how respondent eligibility was determined, how interviewers were trained and supervised, how many interview attempts were successful and a summary of the results and conclusions, all in clear and complete tables and text. Ultimately, the survey researcher does the client a disservice by trying to tip the scales with omissions and obfuscations. A change-of-venue study is the last place one needs to confirm expectations about lies, damned lies and statistics. Robert F. Bettler Jr. is a trial consultant in the Atlanta office of the trial and jury consulting firm DecisionQuest. His experience spans the military, engineering, business, education, medicine and neuropsychology fields. Philip K. Anthony is the firm’s chief executive officer and is based in its Los Angeles office. He has more than 30 years’ experience in all 50 states.

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