The Marketing Research Association (MRA) filed an amicus brief on September 22, 2016, in defense of legitimate research in a Texas push poll dispute.

The case is an 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 opinons on themes and views of the case before trial. The judge ruled that the survey was a "push poll" and sanctioned the law firm for breaching legal ethics.

MRA's amicus brief specifically focuses only on the merits of the research itself, not on the merits of the research companies responsible for the study, the law firm, or the case. It MRA's view that filing this tightly focused brief was necessary because the risk of a negative legal precedent for the research industry outweighed the negative circumstances surrounding the case.

Moreover, we recognize that (as stated in the brief): "many of the underlying allegations in this case are difficult and contested. The purpose of this filing is not to provide commentary on the underlying issues in this case but rather to weigh in on the narrow question of whether or not the survey in question was a 'push poll.' Based on an objective review of the survey, it was not a push poll. However, MRA is concerned that a ruling mischaracterizing the survey as a push poll would have a chilling effect on future legitimate research activities."

The brief explained about survey, opinion and marketing research, how to differentiate such research from a push poll, and methodically demonstrated how the research study at issue in this case was not a push poll.

The conclusion emphasized that, "While MRA takes no position on the veracity of the allegations in this case, it is concerned that those allegations may lead to a ruling that unintentionally misconstrues a bona fide research study as a push poll. Such a ruling could have serious adverse consequences on the research industry." And the concluding request, in addition to calling for the reversal of sanctions against the law firm that purchased the research study, adds another option: "In the alternative, if the Court determines that sanctions are warranted for some other reason, MRA respectfully requests that the Court narrowly tailor its ruling to the facts of this case and make expressly clear that the award of sanctions is not a result of the content and methodology of the survey, which was a valid research study and not, as alleged, a push poll.”

(Special thanks are due to MRA's outside counsel, Stuart Pardau, and to John Gaither, Patrick Nelligan and Seymour Roberts at Neligan Foley LLP who filed the brief on behalf of MRA.)

Read MRA's amicus brief below, or in full in this pdf (which includes the survey at issue in the case).

Interest of Amicus Curiae and Disclosures Required by TEX. R. APP. P. 11

The research profession is a multi-billion dollar worldwide industry, comprised of individuals and organizations working in, or on behalf of, every sector of industry—pollsters and government, public opinion, academic and goods and services researchers. These researchers range from large multinational corporations and small businesses to academic institutes, non-profit organizations and government agencies.

Established in 1957, the Marketing Research Association (“MRA”) is a nonprofit, national membership association with over 2,000 members, representing the survey, opinion and marketing research profession. The association strives to improve research science, methods, accountability and quality. MRA has an interest in protecting and preserving the public image and integrity of bona fide survey, opinion and marketing research and in educating the public about the distinction between bona fide research and push polling, advertising, marketing, and other advocacy. MRA files this brief to defend bona fide research activities, to assist the Court in distinguishing between legitimate research activity and push polling, and to request that the Court not make any ruling that could hamper future legitimate research efforts related to legal work, both in Texas and throughout the country.

No fee was paid in connection with the preparation and filing of this brief. Public Opinion Strategies and Survey Sampling International, LLC, two of the research organizations involved in the dispute underlying this appeal, are a donor to and member of MRA, respectively, but do not have a direct pecuniary interest in the outcome of this appeal.

Finally, MRA acknowledges that many of the underlying allegations in this case are difficult and contested. The purpose of this filing is not to provide commentary on the underlying issues in this case but rather to weigh in on the narrow question of whether or not the survey in question was a “push poll.” Based on an objective review of the survey, it was not a push poll. However, MRA is concerned that a ruling mischaracterizing the survey as a push poll would have a chilling effect on future legitimate research activities, which are essential in an open and free society and crucial to a broad spectrum of areas, including customer satisfaction measurement, political polling, and legal services.

OVERVIEW OF THE RESEARCH AND POLLING INDUSTRY

A. WHAT IS BONA FIDE RESEARCH?

Survey, opinion and marketing research is the systematic, objective investigation and analysis of the opinions, attitudes and behavior of a statisticallyselected group of people. On behalf of their clients – including government (the world’s largest purchaser of research), political campaigns, media, commercial and non-profit entities – researchers design studies, and collect and analyze data, from small but statistically-balanced samples of the public. Researchers seek to determine the public’s opinion and behavior regarding products, services, issues, candidates and other topics. Such information is used to develop new products, improve services, and inform policy. Research is distinguished from commercial activities (such as advertising, marketing and sales) and from advocacy.

In consultation with the broader research profession, MRA has developed a working legal definition of bona fide survey, opinion and marketing research: “the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences and behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional or marketing efforts are involved and through which there is no attempt to influence a participant’s attitudes or behavior.” This definition was adopted by the United States Congress in the proposed RESEARCH FAIRNESS ACT OF 2012, H.R. 5915, 112th Congress (2012) and by the New Hampshire state legislature in amendments passed to a New Hampshire push poll statute in 2014, N.H. REV. STAT. ANN. § 664:2 (2014).

Bona fide research sometimes includes message testing, which is a means of gauging public response to a certain message. Such messages can be considered positive, negative or plainly neutral, and polls containing negative information are not necessarily push polls. Indeed, researchers, companies and political campaigns often test the effectiveness of messages about competitors as well as themselves. Based on the questions contained in the survey in this case, it is clear to MRA that part of the objective was to message test—a perfectly legitimate research objective. Specifically, questions 14, 17-25, and 26-33 of the survey test a wide range of different theories of liability. 2SuppCR 17, 19-20. The fact that questions 17-25 and 26-33 were randomized—asked in a random order—adds even further scientific validity to the process. 2 SuppCR 19-20.

Bona fide research serves a legitimate purpose and is useful across many applications. Researchers are bound by ethical standards and codes, including the MRA’s Code of Marketing Research Standards,[1] and citizens should feel confident about participating in research studies, as well as personally secure and accurately represented when participating in such studies.

B. WHAT IS A “PUSH POLL”?

“Push polling” is not polling at all; it is a form of political campaign messaging or negative phone banking fraudulently disguised as polling. See Evan Gerstmann and Matthew J. Streb, Putting an End to Push Polling: Why it Should Be Banned and Why the First Amendment Lets Congress Ban It, 3 Election L.J. 37, 37 (2004); Jonathan S. Fox, Push Polling: The Art of Political Persuasion, 49 Fla. L. Rev. 563, 564 (1997). While polling can be properly used to test messages, “push polling” is not a test but rather an effort to influence those messages by giving their communication the false appearance of polling. Gerstmann and Streb, 3 Election L.J. at 37. In the political context, polls are methodologically rigorous public opinion surveys of generally 500 to 1,000 people intended to learn about and measure voters opinions and test possible campaign messages.[2]

Advocacy telephone calls, on the other hand, are made to tens of thousands of people and are intended to create or change opinion. Gerstmann and Streb, 3 Election L.J. at 38. For example, political persuasion calls are a campaign advocacy technique used to “push” a voter away from a particular candidate or issue and toward another – they are not a legitimate, scientific poll.

MRA generally refers to such “push polls” as “deceptive persuasion calls,” or “deceptive advocacy techniques,” to better fit the term to the activity. Some researchers also refer to “push polling” as “political telemarketing.” Id. Another trade organization, the American Associate of Public Opinion Research (“AAPOR”), defines a push poll as “an insidious form of negative companioning disguised as a political poll that is designed to change opinions, not measure them.”[3] Based on this view, deceptive persuasion calls under the guise of bona fide polling are a particularly unethical and deceptive activity.

The research profession has been battling against push polling for years, seeking to educate consumers, political professionals, and legislators and regulators on the difference between bona fide research, and political persuasion under the guise of research, and the damage that such deceptive activities inflict on bona fide research.[4] The practice of push polling is abusive and manipulative of the public in that its practitioners gain the attention of respondents under false pretenses by taking advantage of the good will people have toward legitimate research. Gerstmann and Streb, 3 Election L.J. at 37. In addition, push polling is detrimental to the research community by leaving recipients of push polls with a misleading and negative view of what research is and how it works, making them much less likely to participate in future research studies. Id.

C. DISCERNING BONA FIDE RESEARCH FROM PUSH POLLS

MRA and other professional research organizations have identified several factors useful in distinguishing a push poll from legitimate research activity. Push poll calls are usually 30-60 seconds in duration, ask only a few leading or misleading questions, ask no demographic questions, and are placed to many thousands of people. Gerstmann and Streb, 3 Election L.J. at 38; Fox, 49 Fla. L. Rev at 578-583. Conversely, legitimate research calls generally take at least a few minutes, ask carefully designed questions, collect detailed demographic information and are placed to a small representative sample of a particular segment of the public. Id. In short, push polls are designed solely to influence public opinion by sharing information instead of collecting it and shaping opinion instead of analyzing it.

MRA has developed the following chart to assist in distinguishing between legitimate research calls and push polls:[5]

Legitimate Polls/Message Testing Research

“Push Poll” Calls

Generally 5 minutes or longer.

Generally 1 to 2 minutes long.

Neither support nor oppose a candidate/issue or information being tested; seek only to collect unbiased information.

Designed to persuade people, not to measure opinion.

Include questions regarding respondent demographics, such as age range or gender.

Do not ask any personal or demographic questions, which could be used to analyze poll results.

Clearly identify the organization or call center making the call.

May mask the organization or call center making the call, or use a phony name.

Generally total between 300 and 1,500 completed interviews.

Tend to target thousands of people, regardless of demographics.

THE RESEARCH STUDY IN DISPUTE IN THE INSTANT CASE

Based on the standards considered by MRA, the research study in question in this case was not a push poll but was a bona fide research study for a legitimate purpose.

A. LENGTH OF THE CALLS AND THE QUESTIONS ASKED

As set forth above, push polls are generally delivered via telephone calls lasting 30 seconds to a minute and will not include demographic questions. Gerstmann and Streb, 3 Election L.J. at 38; Fox, 49 Fla. L. Rev. at 580. This is because shorter calls cost less and allow more people to be contacted. Id. Conversely, even the shortest bona fide research calls will generally last five minutes or longer and will include specific questions regarding the respondent’s demographics. Gerstmann and Streb, 3 Election L.J. at 38. The poll at issue in this case consisted of at least 42 questions, including specific demographic questions regarding the respondents’ age, state of residence, ownership of a home, use of natural gas, political persuasion, education level, income, gender, and ethnic background. 2SuppCR 11-4.

Given the number of questions, the survey calls in this case would necessarily have taken more than a few minutes to complete. Indeed, the demographic questions alone would likely have taken several minutes to complete. The length of the survey, along with the amount and the nature of the information requested, is not consistent with a push poll, which is designed to reach as many people as possible rather than to collect usable data. These factors suggest that the poll at issue in this case was a legitimate research survey and not a push poll.

B. THE NUMBER OF PEOPLE CALLED, THE RANDOM SAMPLING, AND THE INTENDED NUMBER OF RESPONDENTS

Push polls are designed to reach as many people as possible in a targeted demographic without regard to obtaining a scientific, representative sample of respondents. Gerstmann and Streb, 3 Election L.J. at 38. Here, the survey in question was designed to obtain 300 completed interviews from a sample of approximately 20,000 random phone numbers. 2SuppCR 7. Although it is not clear how many potential respondents were actually contacted in this case, it is often difficult for researchers to reach respondents by telephone. 2SuppCR 9. Accordingly, it is reasonable for a researcher to begin with a pool of 20,000 potential respondents in order to ultimately obtain 300 completed responses. However, because the study would have concluded upon the receipt of 300 completed responses, many of these potential respondents may never have been contacted. Once again, limiting the pool of respondents in this manner is not consistent with the intent or design of a push poll.

C. THE SURVEY TESTED POSITIVE, NEGATIVE, AND NEUTRAL MESSAGES

A bona fide research interview is designed to collect unbiased information from respondents. To collect this information, researchers sometimes include questions designed to test certain positive, negative, or neutral messages. Fox, 49 Fla. L. Rev. at 577-78.[6] The interview script in this case included questions that tested positive, negative and plainly neutral messages on both sides of the issue to measure the effectiveness of those messages. 2SuppCR 11-40. For example, the survey included questions intended to test various conflicting theories of liability for an accident, including reasons why a product manufacturer either should or should not be held liable for an accident involving its product. 2SuppCR 19-20. To reduce the potential for bias, the order of these questions was randomized.[7] By including questions regarding both sides of the issue, these questions represent the type of permissible “message testing” that is often included in bona fide research studies to gauge public response to various messages. Fox, 49 Fla. L. Rev. at 577- 78.[8] By contrast, a push poll would only set forth one side of an issue and would not communicate a message that conflicted with the purpose of the push poll. That was not the case here. Accordingly, this factor also suggests that the survey in question was not a push poll.

D. IDENTIFICATION OF THE RESEARCH COMPANY CONDUCTING THE SURVEY

During a bona fide research call, the caller will clearly identify the organization or call center making the call. Fox, 49 Fla. L. Rev. at 581. Conversely, during a push poll the caller may mask or misidentify the person or organization behind the call. Id. In this case, the interview script began with the caller identifying himself and the research firm that was making the call. 2SuppCR 11. The researchers’ candor regarding the source of the calls also suggests that the survey in this case was not a push poll.

E. STANDARDS AND PRACTICES GOVERNING THE CONTACT OF CELL PHONE USERS

MRA recommends certain best practices for research calls to cell phone users.[9] These practices include: (1) confirming that the respondent is not driving a vehicle while on the phone with the researcher and (2) manually dialing numbers that may belong to a cell phone, rather than using a standard automated telephone dialing system, in order to comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227. Compliance with these research industry practices is another way to differentiate bona fide research activities from push polling. It appears that both of those best practices were followed in research study at issue here. 2SuppCR 9, 11.

CONCLUSION

The research study in this case gives all indications of having been bona fide research and not a push poll. While MRA takes no position on the veracity of the allegations in this case, it is concerned that those allegations may lead to a ruling that unintentionally misconstrues a bona fide research study as a push poll. Such a ruling could have serious and adverse consequences to the research industry. MRA and its members operate in an environment of significant public apathy with respect to research participation and diminishing research response rates. Public apathy drives up the cost and time involved in achieving the required number and strata of participants to reach viable representative samples for most research studies, whether over the phone, in person, or online. MRA is deeply concerned that the sanctions in this case, insofar as they are based on the misunderstanding of the utilization of a bona fide research study, could impair legitimate research efforts in the future, causing individuals to be less likely to trust and work with bona fide, ethically-bound researchers. Sanctioning parties for the use of legitimate research studies will unnecessarily impede MRA and its members, as well litigants and their attorneys, from conducting scientific studies in connection with legal proceedings in Texas and other jurisdictions. Curtailing legitimate legal research, such as the study in this case, will not serve the public interest.

PRAYER

For the reasons set forth above, MRA prays that the order of the trial court awarding sanctions against William A. Brewer III for the use of a legitimate research study be reversed. In the alternative, if the Court determines that sanctions are warranted for some other reason, MRA respectfully requests that the Court narrowly tailor its ruling to the facts of this case and make expressly clear that the award of sanctions is not a result of the content and methodology of the survey, which was a valid research study and not, as alleged, a push poll.

Notes

[1] See “MRA Code of Marketing Research Standards,” available at http://www.insightsassocation.org/issues-policies/mra-code-marketing-res....

[2] See “Push polls” - Deceptive Advocacy/Persuasion Under the Guise of Legitimate Polling, available at http://www.insightsassocation.org/issues-policies/best-practice/push-pol... advocacypersuasion-under-guise-legitimate-polling, citing Stuart Rothenberg, For the Thousandth Time, Don’t Call Them ‘Push Polls,’” Roll Call, March 8, 2007.

[3] See “AAPOR Statements on ‘Push’ Polls,” available at http://www.aapor.org/Standards- Ethics/Resources/AAPOR-Statements-on-Push-Polls.aspx.

[4] Id.

[5] “Push polls” - Deceptive Advocacy/Persuasion Under the Guise of Legitimate Polling, available at http://www.insightsassocation.org/issues-policies/best-practice/push-pol... advocacypersuasion-under-guise-legitimate-polling.

[6] See also Marjorie Connelly, Push Polls, Defined, New York Times, June 18, 2014 (“[T]he fact that a poll contains questions with negative information about one or more candidates does not make it a push poll. Campaigns regularly conduct genuine surveys that test campaign messages and advertising, including negative content.”).

[7]Order bias” occurs when respondents to a survey tend to favor objects because of their position in a list or sequence. Because the objects at the beginning and at the end of a list can be remembered more easily than those occurring in the middle, legitimate researchers’ usual practice is to rotate a list to eliminate this type of bias. See “Order Bias,” available at http://www.insightsassocation.org/issues-policies/glossary/order-bias.

[8] Connelly, Push Polls, Defined, New York Times, June 18, 2014 (“Good message testing includes pro and con statements about both your candidate and his or her opponent” because “[y]ou need to explore the strength and weaknesses on both sides.”) (internal quotations omitted).

[9] See “Calling Cell Phones: The TCPA and Ethical Best Practices for Researchers,” available at http://www.insightsassocation.org/issues-policies/best-practice/calling-... best-practices-researchers; these best practices are echoed in AAPOR’s “Cell Phone Task Force Report 2008,” available at https://www.aapor.org/Education-Resources/Reports/Cell- Phone-Task-Force-Report-2008.aspx and “Cell Phone Task Force Report,” available at http://www.aapor.org/Education-Resources/Reports/Cell-Phone-Task-Force-R....