LITIGATION SUPPORT SERVICES Applying Psychological Research to Litigation

LITIGATION SUPPORT SERVICES Applying Psychological Research to Litigation A Division Of INTERCONTINENTAL MARKETING INVESTIGATIONS INC. San Diego, California 1

Martin M. Buncher n n n Consumer/Industrial Psychologist, USC 1964 43 years consulting /research experience Past V. P. and Board Member of American Marketing Assoc. Founder/CEO of IMI Inc. 1977 Completed over 5, 000 Focus Groups, 2, 000 Surveys, 300 Secondary Studies Marketing/Research guest Professor at SDSU and UCSD n PARTIAL INDUSTRIAL EXPERIENCE LIST Aging/mature markets, agriculture, airlines/aerospace, alcoholic beverages, apparel, appliances, automotive, confectionery, chemicals, community redevelopment, computers/hi-tech hardware and software, construction, real estate, education, employee benefit programs, energy/utilities, financial/banking, foods, gaming, health/beauty aids, household products, health care/medical, human resources, hotels/resorts, insurance, manufacturing, newspapers/magazines, pets, politicians and private interest groups, public safety, public transportation, radio/TV, restaurants. security systems, sporting events, sports and outdoor equipment, student loans, theme parks, telecommunications, tobacco, toys/games, tourism, utilities. 2

Legal Research/Litigation Support/Expert Witness Testimony Most pertinent to litigation support services are the following: 2006 Heller Ehrman Quinine Sulfate n 2004 Blumberg, Lorber, Nelson – Sexual harassment/Wrongful termination n 2003 Crockett - Trade Dress n 2003 Crockett -Branding n 2003 Fraudulent Advertising - Dechert n 2002 Ed Cross & Associates – Insurance Fraud, toxic mold n 2001 Blumenthal, Ostroff & Markham – Advertising Fraud, Toy Industry � 3

Legal Research/Litigation Support/Expert Witness Testimony-Continued n 1995 n 1994 1993 n n 1993 n 1992 1991 1989 n n n Branscomb, De. Cicco, Kopelowitz & Quinn – Lease Fraud Mc. Dowell, Drew, Mc. Dowell – S. Cal Edison Lawsuit R. Rex Parris – Lucky’s Market Slip & Fall Case Sure. Safe Industries – Trademark/Brand Name Infringement R. Esensten – Insurance Company Failure to Service Claim/Breach of Contract R. Esensten – Jury Trial Simulation David Sperber – Jury Trial Simulation/Estate Management Fraud 4

Legal Research/Litigation Support/Expert Witness Testimony-Continue n 2000 n n 2000 1999 n 1997 n 1995 Rose, Klein and Marias – Legal Statute Violation, Candle Industry Rosenthal, Allen & Smith - Breach of Contract/Fraud Polakovic/San Bernardino County – Murder Case Change of Venue James Lyle - GM Fuel Tank Warrantee Casey, Gerry, Reed & Schenk – GM Fuel Tank Warrantee Freeman, Freeman & Smiley – Insurance Company Wrongful Termination Crockett & Fish – Camera Dolly Trade Dress Infringement R. Rex Parris – Motorcycle Injury 5

Larry Percy n n n Profession, Theoretician, Author Copenhagen Business School Stockholm School of Economics and Stockholm University Graduate School of Communication. Honorary Phd. Strategic planning with major advertising agencies (last position as Director of Strategic Planning for Lintas in the U. S) n n n Board Member and Director of the Association for Consumer Research Editorial boards of a number of academic journals, including the Journal of Marketing Research, Journal of Advertising , The Journal of Current Issues and Research in Advertising, and Psychology and Marketing 35 years experience spans the entire range of advertising and marketing problems 6

Partial List Of Publications Books n n n n Percy, Larry, J. R. Rossiter and R. Elliott (2001) Strategic Advertising Management, Oxford, England: Oxford University Press. Percy, Larry (1997) Strategies for Implementing Integrated Marketing Communications, Chicago: NTC Publishing Group. Percy, Larry, Ed. (1997) Marketing Research That Pays Off Binghamton, New York: Haworth Press. Rossiter. J. R. and L. Percy (1997) Advertising Communication and Promotion Management New York: Mc. Graw-Hill. Rossiter, J. R. and L. Percy (1987) Advertising and Promotion Management New York: Mc. Graw-Hill. Percy, Larry and A. Woodside, Eds. (1983) Advertising and Consumer Psychology Lexington, Mass: Lexington Books. Percy, Larry and J. R. Rossiter (1980) Advertising Strategy: A Communication Theory Approach New York: Praeger. 7

Larry Percy Publications n Percy, Larry and J. R. Rossiter (in press) “Measuring Advertising Effectiveness” in M. J. Houston (ed) Handbook of Marketing Research New York: Mc. Graw-Hill. n Rossiter, J. R. and L. Percy (2001) “The a-b-e Model of Benefit Focus in Advertising” in T. J. Reynolds and J. C. Olson (eds) Understanding Consumer Decision Making, Mahwah, N. J. : Lawrence Erlbaum Associates, pp 183 -214. n Percy, Larry (2001) “Marketing Communication in Evolution” in Admap, February, pp 30 -32. n Percy, Larry (2000) “Commentary: Neuro Images of Advertising” Business Strategy Review, Autumn, pp 29 -30. n Percy, Larry and J. R. Rossiter (2000) “Building and Managing brands with 8 Traditional Marketing Communication” in Franz-Rudolf Esch (ed. ) Moderne

Litigation Support Tools n n n Jury Trial Simulation Voire Dire/Juror Selection Witness Preparation Trial Monitoring Expert Witness Testimony n Testing Arguments & Exploring Case Issues Among Jurors & Other Target Groups By: -Qualitative Research -Quantitative Research 9

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JURY TRIAL SIMULATI 0 N Ad hoc design to fit the case and counsel needs Basics: - jury panel from potential juror pool versus retired judge - client lawyers representing plaintiff/defense (role playing as needed) - witnesses needing rehearsal - suitable research venue w/ recruitment/facilities/audio-video - consultant/researcher for monitoring and investigating juror perceptions and attitudes, developing implications during the simulation 11

JURY TRIAL SIMULATION n Length designed in proportion to needs, minimum 4 hours, maximum = days? n Cost = $8, 000 and up n Timing = week to prepare, immediate results and recommendations n Location = research facility where the jury pool lives n Output = verbal or written report, transcripts QUESTIONS? 12

Survey Research n Purposes: n To test hypotheses about case issues among designated target groups n To prove or disprove claims made by Plaintiffs and Defendants in Case filings Ultimately generating statistically significant or otherwise reliable information (trend data) covering key issues of people’s perceptions, attitudes and behavior involved in the claims. 13

Survey Research - Continued n Methods - Face to face (offices, central research locations, trade shows, spectator events, etc. ) - Phone (CATI) Centers - Internet 14

Survey Research - Continued n Procedure (Planning) 1) Determination of specific purpose of the research, I. e. , “to prove”, “demonstrate”, “establish”, etc. 2) Delineation of target group(s) to be interviewed 3) Establishment of best method of data collection 4) Selection of appropriate sample size 5) Questionnaire Design 15

Survey Research - Continued n Procedure (Execution) 6) Interviewing 7) Data Processing 8) Analysis and “report” 9) Declaration 10) Expert Testimony 16

Survey Research - Continued n Participants in Survey Execution 1) Research experts 2) Specialized Field Operations (CATI, Web, Central locations, etc. ) 3) Sample Source 4) Data Processing Operations 17

Survey Research - Continued n Timing and Costs Both are wide open dependent on resources and case needs Research Costs are generally quoted at a fixed price with a +/- 10% contingency QUESTIONS? 18

Qualitative Research n Purpose To generate and/or refine HYPOTHESES about the way designated target groups “ perceive”, “ form attitudes about”, and “ behave towards” RELEVANT STIMULI such as: people social issues specific case issues current/past events weather, religion, philosophies -- everything else 19

Qualitative Research-Continued n Methods n n 1) Focus Groups 2) Individual Interviews 1 = peer pressure, social interaction, moderator influence 2 = individually processed information 20

Qualitative Research-Continued n Procedure 1) Determination of specific purpose of the research, I. e. , “to prove”, “demonstrate”, “establish”, etc. 2) Delineation of target group(s) to be interviewed 3) Development of Moderator/Interviewer guide 4) Schedule and complete interviewing by Psychologist appropriately briefed on case-relevant science 5) Analysis and “report” 21

Qualitative Research-Continued n Timing and Costs Again, wide open: Depends on number of interviews or group sessions, difficultly of accessing the respondent targets, and the length of the interview instrument/amount of information collected 22

Proper use of Qualitative & Quantitative Research n Qualitative: - to generate insights - discover the full range of possibilities - formulate hypotheses and discuss possible implications n Quantitative - to show trends, - to test hypotheses - to support statement of facts and implications 23

Qualitative v. Quantitative Research QUESTIONS? 24

Voire Dire/Juror Selection n Purpose: To provide an aid in the selection of potential jurists most likely to be positively predisposed towards the client side of the case 25

Voire Dire/Juror Selection-Continued n Method = Survey Research 1) Development of a set of questions based on case issues designed to reveal relevant juror predispositions, by isolating specific perceptual, attitudinal and behavior tendencies among a sample of those potential jurors 2) Recruitment of a random sample of potential jurors from the actual case venue 3) Administration of the interview (usually possible by CATI system, unless visuals are required) 4) Tabulation, analysis and “report” of findings 5) Psychologist assistance to counsel in final juror selection 26

Voire Dire/Juror Selection-Continued n Timing and Cost - normally in a week or two - typical survey costs: N = 100 N = 200 N = 300 $5, 000 -$7, 000 $6, 000 -$11, 000 $7, 000 - $15, 000 Costs depend on sample size, number and type of questions (open v. closed –end) asked QUESTIONS? 27

Witness Preparation Best done in trial simulation circumstances to provide the witness with the look and feel of a potentially hostile environment where pressure will challenge his/her performance 28

Trial Monitoring Can be only the consultant observing and analyzing, or in some cases, rules permitting, trial observation (live or taped) by a mock jury with debriefings by the consultant similar to jury trial simulation 29

Expert Witness Testimony Over the years, Martin Buncher and Larry Percy have gained knowledge and experience in almost every market and industry where research has been completed. A partial list of clients served over the years follows: 30

Advertising Agencies/Public Relations/Communications HBM Creamer H. Silver Lintas: USA* Carter Advertising Phillips-Ramsey Capener, Matthews & Walcher Cantor Advertising Franklin & Associates Nuffer-Smith, Tucker, Inc. BBDO Detroit Huckaby & Rodriquez Della Famina Stu Mollrich & Associates TNT Advertising Stoorza Company Arthur I. Rothafel & Associates Robert Mc. Kim Advertising The St. George Group Dr. Salcher Team MBH* Kay Communications Asher/Gould Advertising Earl Palmer Brown Di Zinno Thompson Institute of Canadian Advertising Hakuhodo Advertising* Jordan, Mc. Grath, Case & Taylor Campbell-Ewald* Johns, Cohen, Pasqualina Ogilvy & Mather Lord, Dentsu & Partners Parsons & Kearn Spear-Hall Communications Baxter, Gurian & Mazzei DFS Dorland Mc. Gregor Marketing Nelson Communications Irwin Ink Inter/Media James Dodds & Co. Sports Marketing* Maxim Marketing Corporation Foute Cone & Belding Worldwide Frank Small & Associates* Kandu Communications Marc Advertising Gallop France* Harmonics 31

Automotive Chevrolet Bridgestone General Motors* Oldsmobile Toyota* Pontiac AC Delco Electronics LDF Loffler* Audi Exxon Anheuser-Busch Beer Drinkers of America Beer Industry Schlitz Brewing Co. Heublein Coca Cola Interbrew Advanta 1 -800 -Car. Search Kawasaki Chevron USA Winston Tire Avis Car Rental Mercedes Benz* AC Rochester International* SAAB* Lexus Beverage Refuelin' Hansens Shasta Beverages Chambourcy OMS Holland Schlitz 32

Computer/Hi-Tech/Electronics Toro Company Kyocera Practical Peripherals Linear Corp. Micro. Age Data Facts Hitachi Nintendo Remington Rand SOFRES-FS&A Teckla – Finland* HIJK Computer Gift Cards Sage Software Sanyo Hitachi Symantec Hudson Soft Hayes Park Place Productions Consumer Computers Corp. Data Base Solutions Teac Meldac of America* Unisys Phonics Game Quick. Start Internet Technology Newpoint Fiberlink Teack Sony IBM Telecom Italia 33

Financial Services Mellon Bank Central Savings Home Federal Santel Credit Union American Savings Bank Butterfield Bank of America People. First. com Bank of Hawaii Loan. To. Learn Cigna Peat Marwick Main Great American Federal KMG Main Kurdman La Mesa Bank Wells Fargo Bank San Diego Federal Security Pacific Scripps Bank United States Treasury Department Harmonic International 34

Food Beech-Nut Lean Cuisine Tollhouse Maxim Marketing/Pocket Pretzel Fresh. Nes Stouffers Nestles Kwai Garlic University Food Budget Gourmet Cuisine Fresh Bilmar Turkey Milk Advisory Board Berringer Los Hermanos Nescafe Nestea Carnation International* Korean Tobacco & Gensing Basic American Frozen Foods Taco Bell Living Lean Fresh. Chef Tasters Choice Libby's Nori-Nu Tofu Crosse & Blackwell Wispride Prices Yo Baby Yogurt 35

Manufacturing Wooltex International* Stiffel Lamps St. Thomas* Rainville Tile* Redi-Tag Pacific Southwest Airmotive Loomis Armored Transport* Atlas/Copco* Sure. Safe Industries Agfa Air Liquide Hunter Industries Bayer (Silicone)* Interactive Image Technologies Barbara Thomas Enterprises Nippon Steel* Stanley Smith Security* Main Nickless Ltd. * Kyocera BTE Wagner Die Cut 36

Restaurant/Fast Food/Supermarket Southland Corp. /7 -11 Kodash Ralph's Supermarkets Carlos Murphy's Arby's The Italian Oven Restaurants Season's Cafe Albertson's Supermarkets Foodmaker/Jack-in-the-Box Hungry Hunter Tustin French Quarter Stuart Anderson's Taco Bell* Sidney's Australian Grille Social/Political Torrance & Associates Chapman College University of Southern California City of Inglewood The Greater Irvine Industrial League United States Information Agency (USIA) Australian Bureau of Industry Economics* Gemological Institute of America The Irvine Company Roxani Gillespie City of Irvine City of Los Angeles United Way San Diego Jewish Academy NASA D. C. Public Transportation 37

Travel/Airlines/Tourism Council of the South Pacific* Tourism Australia* Pacific Southwestern Airlines / USAir Eastern Airlines All Nippon Airlines* Mexican Tourism* Asiana Airlines Streamline Travel ATC Travel. Land Lufthansa Continental Airlines Retail/Chain/Franchise Fed. Mart True Value Hardware Sears Serta Mattress Company Supercuts Motorsport* The Center Company Sanyo Tyler Mall Pet. Co May Stores Paper. Pak Borgata Mall Cigar America 38

SUMMARY n n Research is a tool to be used for enhanced understanding of the case issues and how to deal with them It is controllable in terms of timing, cost, and application Intercontinental Marketing Investigations Inc. Litigation Support Division PO Box 2147 Rancho Santa Fe, CA 92067 Buncher@imiesearch. com 858 -756 -1765 39