Litigation Surveys

Litigation surveys are surveys that are used in legal proceedings. Like surveys in nonlitigation contexts, they measure opinions, attitudes, and behavior among representative samples of the general public, consumers, employees, and other populations. They afford a useful mechanism for collecting and evaluating opinions or experiences of large groups of individuals bearing on disputed issues in civil and criminal lawsuits. When administered by independent persons who qualify as court expert witnesses in survey methodology by reason of their knowledge, experience, and education, these group assessments may provide more trustworthy information on legal questions than the testimony of a handful of witnesses chosen by an interested party.

State and federal courts throughout the United States now regularly admit survey evidence. However, before 1963, survey respondents' statements were considered hearsay (i.e. statements made outside of court, which are offered to establish facts), and such data were disallowed by many American courts. In 1963, the U.S. District Court in Zippo Manufacturing Co. v. Rogers Imports, Inc. [216 F. Supp. 670, S.D. N.Y.] recognized that survey evidence fit within certain exceptions to the hearsay rule (i.e. the “expert opinion” exception and the “state of mind” exception), essentially removing the hearsay objection as a bar to the introduction of survey evidence in U.S. courts. Today, surveys also have achieved the status of admissible evidence in legal proceedings in other countries as well, such as Canada, the United Kingdom, France, and Germany.

Litigation surveys provide evidence on a multiplicity of issues and now are used routinely in court as well as for the alternative resolution of civil disputes through mediation and arbitration. Public opinion surveys, consumer surveys, and employee surveys represent the most common forms of surveys for litigation.