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Whenever people hold a legally relevant belief, a survey may be the best tool for proving (or disproving) the point at trial.
THE SURVEY IS one of the oldest and most familiar social science research tools. Like all such tools, it is used to collect, arrange, and summarize facts about people. The fact about people that the survey is best suited to determining is what people believe. The most obvious and bestknown use of the survey in the legal setting is to inform triers of fact about large and representative groups of potential witnesses. But the survey has much broader use for the litigator: Whenever people might hold a legally relevant belief, a survey may be appropriate; the results may even be the best way to prove or disprove a claim.
This article discusses some of the ways that you might be able to use surveys to prove or disprove claims. A considerable amount of attention is devoted to the specifics of how surveys can be used to prove or disprove the elements of a trademark infringement case. This is one of the better-known uses of surveys in litigation. However, surveys can tell you what you need to know about almost any set of beliefs that are relevant to the issues in a case. Accordingly, the article also addresses the issues concerning purpose and design of any survey, population definition and sampling, accuracy of the data entry, and disclosure and reporting.
USE OF SURVEYS IN COURT * Some courts have even described surveys as the most direct form of evidence that can be offered. Brunswick Corp. v. Spinit Reel Co., 832 E2d 513, 522 (10th Cir. 1987). In fact, the absence of a survey can lead a court to take the position that the failure to undertake the survey suggests that a properly done survey would not support the party's position. Ortho Pharm. Corp. v. Cosprophar, Inc., 32 F.3d 690, 695 (2d Cir. 1994).
Admissibility
The inquiry under Rule 702 focuses on whether the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." For a survey, the relevant question is, "Was the poll or survey conducted in accordance...