The Use of Surveys in Litigation: Recent Trends

07 April 2010
By Sarah Butler and Dr. Kent Van Liere

Surveys are used in the courts to provide necessary evidence in a range of cases. "The Use of Surveys in Litigation: Recent Trends," a study by NERA Vice President Sarah Butler and Senior Vice President Dr. Kent Van Liere, examines cases with survey evidence submitted by an expert for 2008 and 2009 opinions. They identified 87 cases -- 44 in 2008 and 43 in 2009 -- in which surveys are mentioned in the decision. Of these, the large majority were surveys submitted in intellectual property cases (70 percent) and false advertising (16 percent). A smaller number of cases in labor, class certification, and antitrust also relied on surveys for key evidence. In addition to a general examination of the types of surveys conducted, the authors also examine the key challenges made to the submitted survey evidence. While the authors find that the challenges vary, their analysis demonstrates interesting patterns by type of case. Overall, the study suggests the importance of a survey expert who clearly understands the legal issues involved in the case and who can apply not only the general appropriate standards but also develop the most appropriate conceptualization.