The Texas Supreme Court rejected a lower court’s order against a law firm for a supposed “push poll” in what the Insights Association called “a crucial victory for the right of litigants to use bona fide marketing research in court trials."
The Insights Association, the leading nonprofit trade association for the marketing research and data analytics industry, had filed amicus briefs in the Texas Supreme Court, as well in the lower court of appeals in 2016, in defense of research in this case.
The case (Brewer v. Lennox Hearth Products LLC et al., case # 18-0426) was a further appeal of sanctions that were levied against Brewer, Attorneys & Counselors, a law firm defending a company in a complicated high-profile personal injury suit. The sanctioning was primarily based on a survey that sought to test public opinions on themes and views of the case before trial. A lower court judge ruled that the survey was a "push poll" and sanctioned the law firm for breaching legal ethics.
According to the majority decision, “the evidence shows [Brewer] undertook reasonable efforts to secure a third-party industry professional to create a relatively balanced public opinion survey for random administration. The record bears no direct, or even circumstantial, evidence of bad faith
The decision noted that, “Pretrial surveys are not uncommon and are neither categorically permissible nor inherently suspect.” Case law, the decision continued, shows "[e]xamples of pretrial surveys… from almost every state and in the federal judicial system. Such surveys are not inherently improper." Further, it found no reason to suspect the integrity of the research process in this case: “the evidence shows he undertook reasonable efforts to secure a third-party industry professional to create a relatively balanced public opinion survey for random administration. The record bears no direct, or even circumstantial, evidence of bad faith.”
The Texas Supreme Court concluded that, “Evidence that the survey database and survey respondents were randomly selected—without any input by Brewer or his staff—was unrefuted. And the record does not support the allegation that anyone in particular was 'targeted.' Nor is there evidence that the size of the survey database suggested anything untoward. Genuine inaccuracies in the formulation of litigation statements tested in Brewer’s quite lengthy survey are debatable, but any such defects were isolated and few and far between. The survey reflects reasonable efforts to achieve a reasonable degree of balance.”
In response to the court win, Howard Fienberg, VP Advocacy of the Insights Association, commented that “the decision not only prevented the chilling of marketing research in the context of litigation and jury trials, but also vindicated bona fide research conducted by legitimate companies under the strictures of the insights industry’s codes and standards.”
About the Author
Based in Washington, DC, Howard is the Insights Association's lobbyist for the marketing research and data analytics industry, focusing primarily on consumer privacy and data security, the Telephone Consumer Protection Act (TCPA), tort reform, and the funding and integrity of the decennial Census and the American Community Survey (ACS).
Howard has more than two decades of public policy experience. Before the Insights Association, he worked in Congress as senior legislative staffer for then-Representatives Christopher Cox (CA-48) and Cliff Stearns (FL-06). He also served more than four years with a science policy think tank, working to improve the understanding of scientific and social research and methodology among journalists and policymakers.
Howard is also co-director of The Census Project, a 900+ member coalition in support of a fair and accurate Census and ACS.
He has also served previously on the Board of Directors for the National Institute for Lobbying and Ethics and and the Association of Government Relations Professionals.
Howard has an MA International Relations from the University of Essex in England and a BA Honors Political Studies from Trent University in Canada, and has obtained the Certified Association Executive (CAE), Professional Lobbying Certificate (PLC) and the Public Policy Certificate (PPC).
When not running advocacy for the Insights Association, Howard enjoys hockey, NFL football, sci-fi and horror movies, playing with his dog, and spending time with family and friends.