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Good research allows trial lawyers to uncover how pre-existing attitudes, opinions, life values and experiences impact a person’s perception and decisions about the evidence. It helps create a persuasive case story that overcomes your opponent’s arguments. Done early enough, pretrial research can improve settlement posture.
Conducting research also is one way to educate a client on what people really think about the evidence. The public delivers the bad news, not you, thereby maintaining a good relationship with the client.
Specific Trial Consultant Services
Focus groups allow for uniquely tailored research that pinpoints the systematic formation of a jury’s decision-making process. To build an effective and compelling story it is necessary to develop a methodology that maps out the impact of various factors, develops a strategy that effectively communicates the story, and determines the individual characteristics of jurors that affect the verdict decision-making process. Focus groups are designed to foster an in-depth discussion led by a skilled trial consultant on the evidence critical to the outcome of the case. That includes favorable and unfavorable evidence, documents, deposition testimony (videotaped is best), styles of counsel, and trial demonstratives that are designed to simplify key concepts. Data is analyzed to determine the importance given to certain evidence, effective themes and ways to improve the communication skills of key witnesses. Because the nature of the research is dissimilar to the trial format, it is not useful for predicting verdict outcome.
Mock Trials: Once a compelling story has been built using well-designed demonstratives, a mock trial affords counsel the opportunity to test the effectiveness of the story within a more formal trial-advocacy setting that includes legal instructions and jury deliberations. The data collected allows for the fine-tuning of the overall posture of the case. Mock trials are most effective once you have defined your case strategy and have a full understanding of your opponent’s strategy. One cautionary note is that it is always difficult to be fair to your opponent’s case, as you typically can’t replicate their manner of presentation or know everything about their strategies regarding presenting their case.
Venue Summaries: Critical decisions should be based on reliable data. A good trial consultant can help with that decision by providing detailed venue summaries which compare demographic, business, and social information along with past verdict decisions in similar cases. Consultants that have national experience will also be able to provide first-hand experience with jurors.
Communications Issues in Trial Consulting
Communicating across cultures is challenging. Our life experiences and values are the lens through which we discuss concepts and make decisions. For example, how will a lawyer in New York play to an audience in Oxford, Mississippi? The main witness is from China – will jurors hold any bias against a foreign national? What do jurors think about the use of an interpreter if the witness can speak English though not fluently?
Beyond the challenge of language, each culture has its own set of rules in communication that its members have learned from birth and thus take for granted. What’s proper or effective in one culture may be ineffective or even offensive in another. But if the witness (or lawyer) can persuasively and credibly communicate their position, then where they came from has less impact. With the globalization of business, corporate counsel that find themselves facing international litigation should also consider retaining a professional trial consultant with experience in the impact of cultural differences. Voir dire obviously is a critical part of any trial, and a trial consultant can help ask the right questions.
Also, the message can’t be separate from the messenger. A critical component in telling your case story is a persuasive and confident witness who can communicate a case narrative into credible testimony. Problems arise when your witness does not fully understand their role, has personal worries and guilt about their involvement, are smart but unable to share that knowledge, or simply just needs therapy. A consultant helps equip each witness with insight into how his or her testimony advances the case story, and how the message may be communicated clearly and effectively. They concentrate on the dynamic relationships between what witnesses say, how they sound to others, and how they present themselves. All while ensuring each witness presents a demeanor that neither distracts jurors from the message nor strengthens the opposition's position.
The jury box is now composed of baby-boomers, Gen-Xers, and millennials—all with different preferences of verbal and visual learning. Messages need to be delivered both orally and visually to ensure that everyone has been reached. The old document blown up on a board is less impressive. There is considerable evidence that certain shapes and colors are more persuasive; certain sounds must be muted. Graphics should compliment the verbal message. Persuasive graphics clarify issues and advance key arguments.
Selecting the Right Jury
Unlike movie and television depictions, trial consultants do not have a war room of monitors displaying the live-feed of juror reactions during voir dire from video cameras stored in the lining of his/her briefcase. Rather, consultants use their expertise based on years of experience to craft case-specific supplemental juror questionnaires and/or a voir dire outline that uncovers unfavorable jurors while keeping favorable jurors. Jury selection is a misnomer, it is really a de-selection process.
Jurors are everyday people, taken from their daily routines and placed in a highly rule-based environment to listen to two sides of a dispute and make profound decisions. Many come in erroneously believing that both sides have to prove their case. They will be told that in deciding the facts of this case, you must not be swayed by bias or favor as to any party. Lawyers frequently make the mistake of telling the jury upfront that they are looking for jurors that can be fair and listen to the evidence and follow the Court’s instructions. Jurors now know that regardless of any potential bias or relationship all they have to do is say Yes. Providing an analogy (sports, food judging, pilots landing a plane) that demonstrates what it means to be impartial helps to establish a standard to which a disclosed bias can be contrasted.
When the trial is over, a consultant has interviewing expertise to gain insights into the jurors' deliberations and reasoning processes. This can be a valuable investment when an appeal is anticipated, or when you expect to face similar issues in other cases. Using a systematic debriefing process following trial, if permitted in your jurisdiction, you can discover why a jury reached the verdict it did and how jurors evaluated specific evidence, witnesses, arguments and theories.
Consultants go by many names – jury, trial, litigation consultant. Regardless of the name, they provide a valuable range of services throughout the litigation process. Yet many lawyers only think of hiring a consultant when mediation has failed, trial is imminent and they begin to think about the need for themes, voir dire questions and jury selection. If that is you, then you have missed out on an extremely valuable resource – a fresh perspective that would better enable you and the client to make fully-informed decisions for a successful outcome to the litigation.
The American Society of Trial Consultants (ASTC) is the only nationally recognized organization that was founded in pursuit of developing the profession of trial consulting. ASTC members agree to follow an established Professional Code, which includes Professional Standards, Practice Guidelines, and Ethical Considerations. Expect your consultant to be familiar with the Code and ask questions about how he or she applies it to his or her own work.
Dr. Sandy Donaldson leads Womble Carlyle’s Trial Consulting practice, helping clients with case assessment and preparation for trials, mediations, and arbitrations. She has more than 25 years of experience in trial consulting.