Using survey evidence in trials may not yield the results you are expecting. That’s why it is necessary to think out of the box.

The problem of competent and often well-intentioned researchers being lambasted for research that most in the research community (for litigation or not) would agree was generally fine is all too common. But it signals a systemic problem or aberration. For starters, intuitive thinkers know well that bench trials and preliminary injunction proceedings are influenced less by rules of evidence and more on a judge’s visceral reactions, by his or her intuitive senses. Psychological and statistical studies on court rulings confirm that what judges say is causing them to decide a case in a particular manner is quite often not truly what causes the decision. Irrespective of studies, experience and intuition clearly suggest this is so.

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