Analysis Group Consultants Explore the Use of Surveys in Litigation in Law360 Article
May 19, 2015
The use of consumer survey methods can be helpful in evaluating and quantifying damages in a variety of cases, including patent infringement disputes, provided that the surveys are designed and implemented by reputable survey experts and adhere to best practices. In a recent Law360 article, "3 Questions to Ask When Using Surveys in Litigation" (May 15, 2015), Senior Economist Laura O'Laughlin and Managing Principal Rebecca Kirk Fair describe how "it is critical to bring in reputable survey experts who will use academically rigorous and unbiased methodologies, employ best practices in survey design and implementation, and develop confirmatory evidence of survey results." By considering these three factors, survey experts "can help attorneys capitalize on the wealth of evidence that primary research can yield in the context of litigation."
In the article, the authors cite several recent examples of litigation in which consumer surveys were used, and note how the use or nonuse of best practices affected the admittance of such methods. "Surveys have been shown in some circumstances to be a useful method through which to deliver evidence, and can be particularly valuable when other sources of data are not available," note Ms. O'Laughlin and Ms. Kirk Fair. "Nonetheless, courts have been and are likely to remain skeptical of surveys - and methodological flaws can hurt both admissibility and weight of impact. Recent decisions relating to 'gatekeeping' and survey evidence, along with other high-profile litigation outcomes, highlight the necessity for adherence to best practice at every step."