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A Closer Look at the Use of Consumer Surveys in Litigation
Consumer surveys have long been relied on in trademark infringement cases. Recently, courts have noted that surveys have become “de rigueur in patent cases” as a tool to evaluate and quantify damages relating to alleged infringement. Surveys have also been increasingly used in class certification matters and antitrust cases.
Despite this trend, some remain skeptical of the “probative significance” of survey evidence in litigation. To counter these concerns and to capitalize on the evidence that primary research can yield, attorneys can turn to reputable survey experts for the application of academically rigorous and unbiased methodologies. There are best practices in survey design and implementation used for the development of confirmatory evidence of survey results.
More specifically, in their litigation work, these experts should consider three questions.
Are the methodologies academically rigorous and unbiased?
Experts must demonstrate that the appropriate questions are asked clearly, that respondents understand the survey questions as intended, and that respondents can complete the survey without fatigue.
An appropriate and admissible survey should be grounded in academically rigorous and unbiased methodologies. Once the key questions are identified, the survey expert should consider the most appropriate approach. For example, to assess the impact of particular product logos or claims in advertising in a trademark or consumer confusion matter, a test and control experimental design is often the best choice, as it can isolate whether there is a causal link between the logos or claims and consumer behavior. Such a method can be used to isolate a causal influence on consumer perceptions and preferences of an element of a product, advertisement, or other marketing material.
If the task is to evaluate the relative importance or value of various attributes to consumer choice in, for example, a patent infringement case, a conjoint study – a market research technique used to determine how people value the features that make up a product or service – or other choice-based method may be helpful.
Is the implementation appropriate and unbiased?
A survey will have greater probative value if the expert can document and support the choice of sample, question, and method, while minimizing the possibility or appearance of biases.
Survey evidence, like most expert-presented evidence, is generally sponsored by a party in litigation. To avoid biases, the right people must be asked the right survey questions in the right way. This encompasses multiple design choices and requires the expert to demonstrate that the survey does not drive results in a particular direction.
Critically, the expert must define, target, and sample from the segment of the population whose beliefs are relevant to the issues in the case. Even if every other step was taken appropriately, if the wrong people are surveyed, the results are likely to be irrelevant and the data may be excluded by the court.
Recent court opinions also indicate that transparency regarding the design process can be critical to admissibility. To demonstrate the relevance of particular design decisions, for example, the survey may be pretested before a full launch to increase the likelihood that questions are clear and to minimize the possibility of unintended implications, such as a respondent’s ability to guess the sponsor or purpose of a study. Further, it may be helpful to demonstrate that potential biases have been minimized by conducting surveys and experiments in a manner that is “double-blind,” thus eliminating the chance that the interviewer could influence the results. The survey expert’s decision to use open-ended or closed-ended questions can also have implications in terms of relevance, analysis, and perceived bias.
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