Survey evidence can be very useful in some cases, but questions are growing about its reliability. By knowing the issues involved with surveys, you’ll be better able to successfully use or oppose survey evidence.

Survey evidence has long been used in trademark and unfair competition litigation, particularly to establish the fact and extent of consumer confusion. Similarly, survey evidence is frequently used to establish deceptive advertising by determining the public’s perception of a particular advertising claim.

In fact, surveys have become so common in unfair competition litigation that some courts now react negatively if such evidence is not offered. At least one court has held that survey evidence is essential to establish a claim for misleading advertising because a plaintiff must make a threshold showing that a statistically significant part of the commercial audience has been misled. Johnson & Johnson Merck Consumer Pharm. Co. v Smithkline Beecham Corp. (2d Cir 1992) 960 F2d 294.

Along with their increased use have been more and more questions about the reliability of survey evidence. This has spawned a growing body of law dealing with the reliability of the methodology employed in compiling particular surveys. For example, the court in Hutchinson v Essence Communications, Inc. (SD NY 1991) 769 F Supp 541, 557 provides that the trustworthiness and probative value of a survey depends on foundational evidence that:

A proper universe (the population to be surveyed) was examined;

A representative sample was selected from that universe;

The questions asked were framed in a clear, precise, and nonleading manner;

Sound interview procedures were followed by competent interviewers who were unaware of the litigation or why the survey was conducted;

The data gathered was accurately reported;

The data gathered was analyzed in accordance with accepted statistical principles; and

The objectivity of the entire process was assured.

Similar factors were set by the Federal Judicial Center’s Manual for Complex Litigation (4th ed 2004).

You should apply these factors to any survey you’re planning to get into evidence or are trying to exclude, and be prepared to show that these factors are met or not. Even if a survey isn’t admitted into evidence and was simply relied on by the expert, you should still check its reliability by applying the factors listed above.

On using survey experts, turn to CEB’s California Expert Witness Guide, chapter 6. On the use of survey evidence use in trademark cases, check out CEB’s California Business Litigation, chapter 6.

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