Many litigators, even those who do trial work, have only a hazy idea about how much value a good jury consultant can bring to trial preparation and presentation. I’m here, with my friend, colleague and Juryology blogger Rich Matthews, to change that. In this post I’m going to identify five ways a good jury consultant can improve your chance of winning at trial.
First, though, I want to acknowledge a challenging hurdle in getting a jury consultant involved in any case. Often, our clients hold the view that lawyers have the education, training and experience needed to do quality jury research, in addition to our day job of mastering and presenting the legal issues, so hiring a jury consultant is needlessly duplicative. Rich dispels this view right away. He says:
“Clients make the mistake of thinking lawyers should be experts in jury research, and it’s often true that the lawyer who would like to hire a trial consultant doesn’t know what to say to the client about that. I would say that it’s like hiring any other expert for the case– lawyers are skilled at the law, jury consultants are skilled at social research. They are two different disciplines entirely.”
How can you effectively use a jury consultant on your case? Here are five ways:
1. In The Courtroom During Voir Dire.
I’ve either heard it said, or said it myself, either way it’s true: selecting a jury is the least understood process of a trial. This is because most schools don’t teach it and the only way to learn is by doing it and not only are trials precious commodities these days, but judges frequently take over the function of voir dire. As a consequence, many of us are ill-prepared to do voir dire well.
Jury consultants can help in formulating the right types of questions to sound out potential reasons why your client could benefit from challenging particular jurors. “Lawyers,” Rich says, “tend to have the wrong priorities in voir dire. They prioritize arguing their case over the most important thing in voir dire which is to get jurors talking and responding to each other.”
Even if the process is spread over multiple days, such as selecting a jury for a long cause trial, everything moves pretty fast in voir dire. A good jury consultant can help slow the process, or at least help your trial team sort through the mass of data being generated in this tight time-frame, so that intelligent decisions can be made about the need for specific juror challenges. As Rich points out, jury consultants are skilled at “tracking all the hundreds of bits of data flying in the courtroom all the time and coalescing that into judgment.”
2. In Developing A Jury Profile Before Trial.
Before anyone enters the courtroom, a jury consultant can help the trial team develop a plan for what kinds of jurors (1) they are likely to encounter in a given venue, and (2) of these, which may come into the case with particular biases that will impede their ability to receive and process evidence fairly (by “fairly” here I naturally mean in a way that is favorable to my client). As Rich says:
“While attorneys are keeping up with developments in the law and managing your cases, the best trial consultants are monitoring all kinds of public opinion data and trends. So trial consultants start out in a much better position to develop a profile for the jury for counsel to follow during jury selection.”
Thus, even if your client is resistant to the cost of having a jury consultant present in the courtroom during voir dire or other crucial parts of the trial, there may still be value in the lesser investment of involving a consultant before trial starts.
3. Working With Focus Groups.
You know those parts of the case which you’re most worried about? When the trier of fact is a panel of jurors, those parts of the case are often not legal issues, but “juror issues.” Rich notes that “easily the best way to assess your case’s juror issues, as distinct from the legal issues,” is to work with a jury consultant and one or more focus groups. “Lawyers,” Rich says, “think like lawyers and focus very closely on the precise laws, whereas jurors are more ‘gestalt’ kind of thinkers and are more interested in a broad kind of justice and morality. This difference in focus will lead lawyers to overestimate the impact of a statute/rule/jury instruction on laypeople. The only way to get on the same plane as laypeople is with a focus group.” Anyone who has done focus group research knows it’s going to yield the most valuable information–useful conclusions–if the research is directed and interpreted by someone with the proper training.
4. Case Evaluation.
Most of us, myself included, tend not to think about involving a jury consultant until after the decision to take a case to trial has been made. Rich feels this is a mistake, since we tend to develop a kind of tunnel vision about the quality of our case or defense, and pass that on to influence our clients. Instead, “it’s imperative to consider the ‘social zeitgeist,’ or what is happening in the collective social consciousness — as well as understand the predictable places where laypeople will deviate from how lawyers think — when valuing a case or deciding whether to take it to trial.” Good jury consultants should be able to channel into this and inform your case evaluation.
A bonus to involving the consultant earlier than later is that he or she can help you shape your discovery to fit a theme that is likely to resonate with jurors, as opposed to the more common approach of trying to pigeonhole evidence gathered at random into a theme that is developed for the first time on the eve of trial.
5. Witness Preparation.
A consultant can help prepare a witness for testimony in deposition or a trial in a way that most lawyers cannot. I’m afraid I have to agree with Rich when he says:
“Lawyers have proven woefully inadequate at witness preparation. Most lawyers think that reviewing the facts and saying ‘Just remember to tell the truth’ constitutes good witness preparation. It doesn’t. Imagine a witness who actually has skills at testifying– not just what to say, but how to say it; how not to bait the bear; how to tell his or her story to jurors. It’s so much more than just ‘Here, re-read your deposition transcript and make sure you follow it precisely or else we’re going to be in trouble.’”
Ok, I’m not that bad at witness preparation, since it’s something I’ve long recognized to be crucially important. But yes, Rich, we get the message!
One last word on hiring a jury consultant, devote the time and effort to finding a good one. As Rich says, there are “lots of mediocre consultants flooding the marketplace.”