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Using Marketing, Business, and Competitive Research to Win Cases

By Don E. Smith

American Consulting Group, Inc.

Submitted March, 2002

Marketing research is a powerful tool that helps lawyers win cases. Examples:

  1. Established that a distributor did not implement "effective marketing & sales programs" as required by the contract. The unlawful termination suit was dismissed.
  2. Demonstrated that equivalent "products and services" were priced at $2,400,000 vs the $200,000 value claim. The case was settled prior to trial for $2,400,000.
  3. Based on market data, defined that the claimed economic loss was a maximum of $100,000 rather than the claimed $6,400,000 claim. The suit was settled for $50,000.

Summary: Areas that benefit from marketing research

  • Advertising effectiveness
  • Agent performance
  • Best effort evaluation
  • Competition
  • Competitive analysis
  • Dealer performance
  • Distributor performance
  • Effectiveness of programs
  • Market share
  • Market size & growth
  • New product opportunity
  • Pricing
  • Profit loss
  • Sales loss
  • Sales performance
  • Strategy

Many market research expert witnesses have an undergraduate degree in their specialty (engineering, business, marketing) and an MBA. They average over twenty years of business experience. Unfortunately, some lawyers do not recognize the value of marketing research...and put their cases at risk.

For example, many lawyers bring in an expert to express an opinion based on his/her experiences. In many cases, this experience is narrow; the expert's testimony is weak. With effective research, numerous facts from a range of sources provide a far more convincing argument.

The keys to the selection and use of marketing research professionals include:

  1. Define the hypothesis and the information required to win the case. This guides you in the selection of your researcher and keeps the research focused and affordable.
  2. Define key words that define the background and experience you require from your researcher. Such fine-tuning is now possible through the use of ExpertLaw.com's search capability.
  3. Use researchers with extensive (a) business experience and (b) litigation support experience. Unfortunately, many market researchers are not effective during the stress of a deposition or trial.
  4. One of the strengths of market researchers is attention to detail. This can also be a weakness. An experienced researcher recognizes when details are not required; this saves both time and money.
  5. Secure several research-in-progress verbal reports. The information will provide you with valuable insight to the case and your strategy. It also helps focus the researcher.

Copyright © 1999-2002 Don E. Smith.All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.