GPSolo Magazine - Oct/Nov 2003
What a Trial Consultant Can Teach You—Even if You Can't Afford to Hire One
When attorneys or clients think about using trial consultants, they usually think of a professional who formulates jury questionnaires or voir dire questions, develops profiles of whom to strike or try to keep on a panel, and interprets the verbal and nonverbal juror responses during jury selection. But trial consultants can help long before a lawyer stands in front of a group of citizens and asks them whether they can be fair and impartial judges.
It has become increasingly apparent during the past quarter-century that our jury system must be approached as a social system and not merely as a system of laws and rules. Trial consultants help counsel understand the psychological, social, educational, and persuasion principles that inform jury and judicial decision making. Social science research helps us understand how jurors who have no training in separating the law from their own life experiences, beliefs, and predispositions will respond to the issues, evidence, and witnesses in a case. Furthermore, consultant research helps trial counsel to develop effective presentation strategies, themes, and demonstrative evidence for the case.
So what do you do when you can't afford to hire a trial consultant? By understanding the fundamentals of what consultants look for and by following some basic research and communication principles, you can strengthen your trial strategy and be better prepared to try your case—without a substantial financial investment.
Case Presentation Feedback
Understanding your audience is a key to success in trying cases before a jury, judge, or arbitrator. Consultants ask many questions in order to better prepare a case:
- Is there an ongoing socio-political climate that might affect your case?
- What are some of the prevalent community and national issues that might affect your case?
- What personal experiences or beliefs may help jurors relate to your case or to your opponent's case? What potential biases or emotional reactions will jurors have to issues they will hear about in the case?
- What will your audience understand, like, dislike, or need more information about in the case?
- What order and presentation format will most effectively convey the case?
- What will the audience need visually to better understand the case?
- How will the jury interpret the law, instructions, and verdict questions in this case?
- What standards or rules (other than legal instructions) will the jury bring to the case? These nonlegal standards often manifest in judgmental language from jurors such as "He should have . . . "; "She could have . . . "; or "I would have . . . ."
To answer some of these questions and to test case issues, a trial consultant typically will recommend conducting a focus group, mock trial, or both. Although sometimes used interchangeably, a focus group is typically an interactive research study where a moderator presents case information or issues and then periodically gets reactions and recommendations from the group at various points during the presentation. In a mock trial, attorneys playing the various sides in the case give presentations, and then a "jury" or "juries" deliberate to a verdict. Measurements are taken to gauge the movement of juror decisions during the course of the presentations, and then a focus group is held at the end to probe the reasoning behind the jury's verdict.
Conducting social science research for your trial should fulfill several goals. First, it is important to understand how someone with no training in the law and no special knowledge of the issues of the case perceives the evidence, witnesses, and overall case presentation. Before taking a case to trial, test the case in front of this mock jury for comprehension and appeal. Critical points to cover include the following:
- What do jurors get confused about in the case?
- What preconceived notions do jurors have of the issues or parties involved in the case?
- What questions do they have after hearing the entire presentation?
- Which issues are they most focused on, and which do they ignore or minimize?
- How credible or believable are the key witnesses?
- What do they think are the weakest issues or evidence in your case?
If your case can't afford a focus group or mock trial, other options exist for getting valuable feedback without the expense. Present your case to as many people as will give you the time, preferably those who don't know you or your practice. This could be as simple as discussing the case with a taxicab driver or a corner grocer to get their opinions, or gathering a small group of acquaintances or friends to ask them about your case. One attorney we know uses his mother-in-law, whom he knows to be skeptical about his cases.
If you do have a budget (even a small one) for such research, the best approach is to hire a market research firm to recruit a specific demographic that matches the jury pool and screens people who would not be qualified for jury service. Include in the group people of different socio-economic backgrounds, ages, education levels, ethnicities, and life experiences. Try to match the demographic makeup of jurors in the venue where you are trying the case.
When possible, try to find lay people who in your experience match the most skeptical jurors for your type of case. For example, a plaintiff may want to recruit respondents who are tort-reform minded-who are hostile to lawsuits and awards for emotional distress or punitive damages. Likewise, defense attorneys in employment cases may want to recruit respondents who have anti-corporate attitudes or negative work experiences.
Encourage respondents to stop you to ask questions and give reactions to your case. Encourage them to be open in their feedback, giving critiques and telling you when they agree or disagree with your position or understand or don't understand your arguments. Make notes of all the feedback. Be on the lookout for counter-intuitive responses—reactions that have nothing to do with the evidence or that focus on what you previously thought was insignificant. If these people do not understand your case as you intended, chances are neither will your actual jurors.
Try telling the case from various perspectives: as a neutral party revealing what each side might say about a particular issue; as the opposing side; and of course, as your side. If your audience does not already know, do not reveal which side you represent.
In sharing the case presentation with laypeople, keep the following goals in mind:
- Identify the weaknesses or challenging issues in the case, and learn how to address them.
- Develop themes using feedback from the test jurors; use analogies, examples, and phrases directly from their feedback when possible.
- Clarify and simplify confusing or complex issues in the case.
- Identify the jurors' preexisting attitudes, life experiences, and insights that may influence perceptions of the case.
- Have jurors suggest what would help them better understand and be convinced of your case.
In order to achieve maximum benefit from these feedback sessions, keep in mind that your objective is to understand what might happen at trial that could cause you to lose, and to prevent a negative outcome. An essential component is to present a balanced case to your audience, complete with your party's problems and your opponent's strengths. Otherwise you will not gain the necessary insights needed to reposition your vulnerabilities and challenge their strengths. If possible, ask an experienced colleague to present your side of the case so you can prepare and represent the opposing side. You will learn volumes from stepping into the other side's shoes and thinking strategically about its position.
If you're able to present your case in a formal setting, you can benefit from hearing the jurors discuss the case with one another. Even talking about the case to jury-qualified laypeople in casual discussion can help you understand how jurors may view your case. Keep in mind that this research is not intended to be predictive of the actual trial outcome; it is designed to provide invaluable feedback from which to shape the presentation of your case. Additionally, be sure to take reasonable precautions so the content of the discussions does not get back to the other side. This can be done when recruiting people for the project by carefully screening them for any relationship to the parties or knowledge of the case. It is also important to have your respondents sign confidentiality agreements not to disclose the information they will be hearing, seeing, and discussing.
Use the feedback from your focus group or case presentation to develop a single, strong, central theme that addresses both the legal and the non-substantive issues in the case. Using a theme ensures that the desired message can be received, retained, and acted upon by the jurors or finders of fact. Develop a case theme that presents a cohesive, compelling reality for the jurors—one that addresses their educational, emotional, and entertainment needs during the trial. Reinforce the theme throughout the case by using compelling visual images and repeated phrases. Design key images and words for easy retention so that jurors may access and use them persuasively when they deliberate the case. One effective way to help develop the key phrases and images is to construct a compelling story of your case.
Trial consultants spend a great deal of time working with counsel on the "story" of the case. Although this is a vast topic, even a few basic points can aid you in telling the story of the case.
1. What sequence of events conveys the message of your case? Although gravitating to a straight chronological sequence of events is simple, this may not be the best presentation for your case. For example, plaintiff's counsel may find that focusing on the client too early in a personal injury case can call into question the plaintiff's responsibility for his or her own injuries. A better approach may be to focus the story first on the defendant's conduct, even though it occurs later on the timeline.
2. Jurors will place importance on whatever the attorneys spend most of their time on in the case. In an insurance bad- faith case, a defendant may call multiple experts on the intricacies and interpretation of a coverage question. Although this can create a strong record, it also may distract jurors from the simpler reasons that prompted a claims handler to deny the claim in question.
3. Define the characters in your case story and clarify their motivations—or jurors will supply their own rationales.
4. Create background or a context for the parties' actions. For example, the development and growth of a manufacturing sector may help jurors to understand the actions of the defendant in a product liability case.
5. Be clear about how you want your audience to visualize the story and its important points. How can you emphasize the theme through your characters (witnesses) and visuals to create a compelling, convincing presentation? The following questions typically would be suggested by a trial consultant:
- When should particular witnesses testify, and what should be the scope of their testimony?
- Should some witnesses not testify?
- Should software presentations like PowerPoint, Sanction, Trial Director, Summation, or other technologies be used, and if so, when?
- What visuals should be used: blowups, document treatments, timelines, flow and organization charts, animations, models, and so on?
- Should video or audiotapes be used? What about interactive devices such as jury notebooks, flip charts, or magnetic boards?
In answering these questions, it's also important to anticipate what the other side will attempt to do with your witnesses and demonstrative exhibits. Finally, consider the overall effect you want each of the individual story or presentation segments to have on developing and influencing the jury's decision. As often as possible, use the feedback of your judge and jury—their words and experiences—to tell the story of the case when constructing case examples or analogies. This will help them attend to your case and retain more of the information you present. By crafting careful questions in hearings with the judge and in voir dire, both judges and jurors will tell you stories and experiences that will help you create examples, analogies, and metaphors to directly touch the fact finders' life experiences, values, beliefs, and expectations.
Another critical component of trial preparation is effective witness preparation. Because most trials depend heavily on the strength of witness testimony, the witnesses' confidence, credibility, and clarity in deposition or while on the stand are essential to the positive presentation of the case. Carefully consider their order of appearance, planning the timing of certain evidence to increase retention of information and impact on jurors. Help prepare your witnesses by honing both their listening and communication skills so they can give their best testimony under the pressure of cross-examination. Prepare them how best to be cooperative and clear and to give complete answers without volunteering additional information beyond the scope of the question.
Problems arise when witnesses do not fully understand their role in the trial. A common misconception is that they are there to advocate a case position. This misconception can lead to loss of credibility, whether the witness is a lay or an expert witness. Make sure they understand that their role is to tell their part of the story, not to protect your client. We have found that witnesses provide the clearest testimony when they switch roles from advocate to educator. To help witnesses prepare to give their clearest testimony, incorporate the following guidelines:
- Thoroughly explain the trial context to your witness, including the courthouse and courtroom environment, the opposing counsel's examination style if known, a personality profile of the judge, and the demographic profile of the jury. Just as you need to understand your audience, so do your witnesses.
- Clearly define for the witness (and ultimately the jury) how you and they see the witness's role in the trial. Define the specific areas of your witness's knowledge and expertise. Because juror attention is highest at the beginning of testimony, however, don't spend an inordinate amount of time on his or her qualifications. Make sure you get to the substantive aspects of testimony and cover additional expertise or qualifications later.
- Also define which aspects of your witness's background you want to use to enhance his or her credibility and to create an immediate identification or rapport for the jury panel.
- Outline the jury's expectations and biases about witness testimony.
- When appropriate, outline key trial themes for the witness.
- Highlight the substantive points in the witness's testimony for consistent reinforcement.
- Outline important educational issues the witness can offer the jury and determine what demonstrative evidence can support the testimony. Teach your witnesses the most effective use of exhibits.
- Videotape your witnesses during preparation to obtain reactions and recommendations from you or mock jurors regarding mannerisms and nonverbal behaviors such as dress, eye contact, facial expressions, gestures, and vocal variety. Sometimes witnesses need to see themselves as others will see them. If they're self-conscious in front of the camera, take extra time with them, especially if they will be videotaped at deposition. When practicing for trial testimony, explain how the judge, opposing counsel, and ultimately the jury might react to various aspects of their substantive testimony or demeanor. Reviewing the videotape and practicing new behaviors will help them hone their communication skills and confidence. Be sure to point out several positive aspects of each witness's performance, not just what needs changing.
- Teach your witnesses about the basic presentation behaviors that will help their testimony: dressing comfortably, sitting forward, breathing deeply, speaking in a clear voice, and making eye contact. Encourage them to get a good night's sleep before deposition or trial and to eat lightly before they testify.
- When appropriate, provide and encourage witnesses to use documents or other demonstrative exhibits to support and contextualize their testimony. This creates objective evidence for jurors that doesn't rely solely on the perceived credibility of the witness.
- Encourage witnesses to be cooperative and congenial, even under hostile cross-examination. Witnesses increase their credibility if they are perceived as trying to help jurors understand the issues in the case.
- Help witnesses translate potentially confusing jargon, acronyms, and complex concepts to avoid juror confusion. Short, simple sentences help convey credibility.
- Advise witnesses to respond to the questioner but to include the jury in longer answers.
- Take time to address witnesses' concerns or questions. Jurors can sense and usually negatively interpret a witness's hidden agenda. If you do not address these questions and concerns prior to their testimony, often the witness's uncertainty, confusion, or emotional state will affect how they listen to questions and respond on the stand.
- Encourage witnesses to address mistakes or inconsistencies lightly and forthrightly in their testimony. If a witness behaves in a defensive or hostile manner on the stand, jurors will transfer that behavior to the witness's conduct in the case. For example, jurors who view an insurance claims handler's taciturn testimony may conclude that this is the same attitude he exhibited toward a claimant when handling the claim. Similarly, teach witnesses to be patient in addressing and correcting assumptions in cross-examination. Remind them again and again that they are there to help the jury, the judge, and the opposing side understand what really happened in the case.
- In practicing cross-examination, teach the witness about objections and how to respond to various question forms: compound, hypothetical, vague, or buildup. Teach the witness to listen to the question and pause to form an accurate response as well as to allow counsel to object if necessary. The pause also allows the witness to control the pace of the examination.
- Teach witnesses to ask themselves whether they understand the question or are the appropriate person to respond to it. If they don't fully understand the question, chances are the jury doesn't, either. They should be precise about what they know and how they know it.
- Encourage witnesses to answer questions in their own words. Jurors want to hear what witnesses have to say—what they saw, heard, experienced, and expressed an opinion about. This allows jurors more immediate access to the world of the case and helps them see events through the witnesses' eyes, not the attorney's.
These skill-building techniques increase the witnesses' ability to respond to questions, to control the level of detail in their answers, to heighten the jury's perception of their credibility, to educate the jury on key background issues, and to model their confidence and conviction in their responses.
Trial consultants study decision dynamics and use these observations and skills to enhance the clarity and influence of the messages clients send to audiences. Understanding how to research the decision process and develop and present a compelling, clear, and cohesive theme and story for the case is at the heart of persuasive ability as an advocate.
Richard K. Gabriel and Julie Fenyes are principals with Decision Analysis, Inc., a trial consulting firm with offices in Los Angeles, Chicago, and San Francisco. Their website is at www.decision-analysis.com