Ensuring Validity and Admissibility of Consumer Surveys

Surveys can be a useful method through which to deliver evidence, particularly when other sources of data are not available. Used in trademark infringement matters for decades, consumer surveys are also gaining in prominence in patent litigations, false advertising and consumer protection cases, and employment-related class actions. However, the relevance and usefulness of expert-submitted surveys in any legal context is dependent on how they are designed and implemented. The benefits of using a valid survey – as well as the potential pitfalls of using a survey affected by one or more biases – are explored further by Managing Principal Rebecca Kirk Fair and Vice President Laura O'Laughlin in an article, “Ensuring Validity and Admissibility of Consumer Surveys,” published in the Winter 2017 edition of the Consumer Litigation newsletter of the American Bar Association's Section of Litigation.

As the authors explain, the avoidance of bias, either in fact or appearance, is central not only to a survey's admissibility but also to the probative weight accorded to the survey expert's testimony. Put simply, valid surveys require a survey expert to ask the right people the right questions in the right way. To encourage acceptance by courts, the survey expert must take affirmative steps to verify their use of relevant survey design, show their use of accurate sampling techniques, and demonstrate how they minimized or avoided the potential for bias that might impact the survey results.