Litigation strategy often requires choosing among competing paths before anyone knows how jurors will respond. Attorneys may need to decide which evidence to emphasize, which witnesses to call, which defenses to present, which jury instructions to request, or which themes to build into opening and closing arguments.

Some strategic choices are especially consequential. In a criminal case, counsel may need to decide whether to present an affirmative defense, emphasize reasonable doubt, introduce mitigation evidence, challenge a confession, or focus on weaknesses in the prosecution’s investigation. In a civil case, counsel may need to decide whether to highlight comparative fault, concede limited responsibility, challenge causation, emphasize damages, or frame the dispute as a matter of safety, responsibility, contract performance, or personal accountability.

These choices are often made through professional judgment and experience. That judgment is essential, but it can be strengthened with empirical evidence. Fair Trial Analysis uses jury-pool surveys, randomized case simulations, and statistical analysis to test how potential jurors respond to different versions of a litigation strategy.

The goal is to help attorneys and clients make strategic decisions with better information. Rather than guessing which approach is more persuasive, the analysis can estimate whether one strategy meaningfully changes how jurors understand the case and what outcome they prefer.

What the Analysis Can Show

Strategic-choice analysis can compare two or more defined versions of a case to estimate how each one affects juror responses. Each version can vary a specific strategic element while holding the rest of the case constant.

The analysis can show whether a proposed strategy changes the percentage of respondents who favor conviction, acquittal, liability, no liability, a death sentence, a life sentence, or a particular damages range. It can also show whether the effect is large enough to matter in practical terms.

This type of analysis can help answer questions such as:

• Does one trial theme perform better than another?
• Does introducing a particular item of evidence improve or weaken a party’s position?
• Does a proposed defense reduce the probability of conviction or liability?
• Does mitigation evidence reduce the probability of a death sentence or severe punishment?
• Does a jury instruction change how respondents apply the law?
• Does emphasizing damages increase compensation or create backlash?
• Does conceding a limited point improve credibility or increase exposure?
• Which facts or arguments do respondents rely on when explaining their decisions?

The analysis can also identify tradeoffs. A strategy may help with some respondents while alienating others. A piece of evidence may reduce liability but increase damages. A legal argument may be technically sound but confusing to nonlawyers. By measuring these responses directly, the analysis can help distinguish promising strategies from choices that merely feel persuasive.

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Who This Helps

This analysis helps litigators who need to make consequential strategic choices before trial, mediation, plea negotiations, settlement discussions, or major litigation investments.

It is useful for criminal defense attorneys evaluating trial theories, mitigation presentations, confession challenges, evidentiary disputes, and sentencing strategy. It can also help prosecutors, civil plaintiffs, civil defendants, insurers, and public-interest litigators assess how different case presentations may affect likely outcomes.

For clients, strategic-choice analysis makes litigation advice more concrete. Instead of being told that one approach “may work better,” clients can see empirical evidence showing how potential jurors responded to competing strategies.

For funders, this work demonstrates how rigorous empirical analysis can improve legal decision-making. Strategic choices can shape whether cases are tried fairly, resolved wisely, or litigated effectively. Measuring those choices helps make litigation strategy more disciplined, transparent, and accountable.

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