November 17, 2020 Articles

Effective Use of Jury Consultants

Early and effective engagement of a jury consultant, well before trial, can greatly improve your ability to present a compelling narrative at trial.

By David C. Kent and Gary R. Giewat

“Why do I need a jury consultant?” The question is often asked by clients and attorneys alike. The client wonders why the lawyer, who presumably is already skilled in trying cases, needs the assistance (and expense) of a non-lawyer. Many lawyers resist using a jury consultant for much the same reason.

But it is all a matter of perspective. Attorneys are experts on the law. They know their case, their client, the law, and the procedure. Jury consultants, on the other hand, are experts in human behavior and communication. They bring to the trial team expertise in human behavior and assist in developing trial strategies and providing attorneys with a better understanding of what themes and issues jurors are likely to focus on. Their expertise provides a different perspective.

In fact, the very title “jury consultant” is misleading and artificially limiting. “Trial” or “communications” consultant is more apt because the breadth of the consultant’s training and experience extends beyond selecting a jury. It can involve all aspects of communication and persuasion, including in bench trials.

Engaging the Consultant Early

It is precisely because the “jury consultant” can do so much more than simply help select a jury that the best way to maximize the consultant’s value at trial is to involve the consultant in the pretrial phase. Through pretrial research and the use of social science “tools,” trial consultants assist the trial team by providing valuable insight into how laypeople view varied case issues. They help identify which themes prospective jurors do and do not accept. In a controlled setting such as a mock trial, a consultant can help counsel evaluate the influence of various arguments, documents, demonstrative exhibits, and fact and expert witness testimony (whether presented in excerpts, by summary, or through live witnesses). The resulting knowledge complements the skills of the litigator in the courtroom, helps simplify and clarify the case, and minimizes the likelihood of surprises during trial. Just as most trial lawyers prefer to work up the case they try, so too can a trial consultant bring more value through early involvement rather than only at trial.

A good consultant can help identify the strengths and weaknesses of a case and provide useful and practical recommendations, as well as help identify risk and potential exposure. This information is important and can be useful long before trial, including in preparing witnesses for depositions and in offering guidance on helpful themes to hone in on when deposing the opposition’s witnesses. It can be particularly valuable in settlement discussions by providing some level of objective data to complement the attorney’s or client’s more subjective evaluation of a case.

Focus Groups

The type and depth of pretrial research can vary with the schedule, forum, and budget of the case. Focus groups are one relatively quick and inexpensive research tool. Typically, these involve presentation of a short, scripted summary of the dispute to a small group of people, followed by a question-and-answer session led by a group facilitator. A focus group exercise can last a few hours, making it suitable for a morning, afternoon, or early evening session. Many consultants prefer a full day, which allows them time to fully interview and debrief the participants.

The attorneys, who are most familiar with the case, prepare the written summary of the dispute. The consultant may edit it to focus on a particular research objective, such as obtaining first impressions of the case or reactions to particular facts, arguments, or themes. Because they are limited in time and scope compared with other forms of research, focus groups can be used early and often, modifying the case description as new facts, issues, or research objectives develop.

Traditionally, focus groups have been conducted in person. Even before COVID-19, however, some consultants and market researchers were conducting web-enabled focus groups online, with the ability to recruit larger groups of participants quicker and at a lower cost. With the advent of COVID-19, the impetus for online research has grown and is likely to accelerate.

Mock Trials

Mock trials offer a more in-depth form of pretrial research. These can take different forms, ranging from presentations of more extensive scripted case summaries to role-playing exercises where attorneys present their cases using live or videotaped testimony, documents, and demonstrative aids. The needs of the case can dictate the length of the exercise, but mock trials typically take a full day. Once again, these traditionally are done in person.

As with focus groups, COVID-19 has made the “Zoom mock trial” a more viable form of research. Although not conducted in person, the online mock trial retains the feature of verbal interactions between the consultant and the participants. Given the very real phenomenon of “Zoom fatigue,” a shorter presentation tends to engage participants better and produce more meaningful feedback.

Because they normally involve a much more in-depth view of the case, mock trials require more preparation time and have a higher associated cost than focus groups. As a result, they are less likely to be done multiple times in a single case.

Online Survey Research

So-called bulletin boards and similar survey tools offer additional forms of online research, typically using non-probability “opt-in” samples of jury-eligible respondents. This newer methodology involves presenting to a relatively large sample of people a brief narrative of a lawsuit accompanied by a simplified verdict form, as well as gathering qualitative feedback.

Bulletin boards typically use less detailed case summaries than focus group or mock trial exercises, and they use other online surveys even less so. Neither form of research involves verbal interactions with the participants; instead, participants respond to written questions and inquiries. Both exercises are short: Bulletin boards take an hour or less, and surveys take 15–30 minutes. The key advantage these methods offer is the ability to gather data on a very large scale at relatively low cost. They have great utility in producing a “snapshot” of sentiment from a larger segment of the lay public.

Witness Preparation

During the pretrial phase, trial consultants can provide invaluable assistance in helping witnesses prepare to testify effectively. The formalities and rigidities of deposition and courtroom testimony require special communication techniques, which do not come naturally to most people. Trial consultants can help witnesses understand and properly evaluate questions at trial or in deposition in order to present their truth with confidence, sincerity, and power.

The prevalence of “Zoom depositions” has added a new dimension to witness preparation. Far from being just a different form of a video deposition, remote transmission testimony has its own complicating factors of lighting, sound, camera angles, screen sharing, attorney-client colloquies, and tight “talking head” framing. These create new challenges for presenting effective witness testimony.

Jury Selection

At trial, attorneys often find value in a trial consultant’s ability to assist with the jury selection process. This may be as simple as providing an extra set of trained eyes and ears in the courtroom to evaluate the jury panel. More extensive work can include assistance in preparing a jury questionnaire, performing online background research of panel members (when time permits), and, of course, providing input and suggestions for cause and peremptory strikes during the jury selection process itself.

Trial Activities

During the course of a trial, some attorneys find it useful to receive ongoing feedback from a consultant observing the case in progress. More elaborate and expensive observation and reporting can come from “shadow jurors,” who are paid to attend, observe, and provide daily commentary on the trial. There is some concern that jurors can become distracted and suspicious about seeing the same set of observers attending trial every day. The move to online live streaming of jury trials can overcome this concern by permitting shadow jurors to observe a trial remotely.

When fully involved as a member of the trial team, the consultant can provide valuable insights into the content of voir dire questioning, opening statements, direct and cross-examination, selection and order of witnesses, and closing argument. From the vantage of being an observer, the consultant can provide a more detached and somewhat more objective view of how the case is unfolding than the lawyer, who is caught up in the heat of battle that the trial itself creates.

Post-Trial Activities

Finally, after a trial is over, consultants often follow up on a jury’s verdict by conducting post-trial interviews. This provides the trial team with insight into how the jury reached its decision, an understanding of what the jury viewed as important, and guidance for future cases, which can be very important in serial litigation. Jurors often are more receptive to interviews by someone other than the trial layer, and the results often are more systemized, objective, and informative when conducted by a professional trained in conducting interviews.

Conclusion

As valuable as litigation experience is, it is rare for even the most seasoned attorney to “know it all.” Trial consultants offer a unique set of skills and experience that enhance an attorney’s ability to effectively try a case and serve as an aggressive advocate for his or her client.

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David C. Kent

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David C. Kent is with the Dallas, Texas, office of Faegre Drinker Biddle & Reath, LLP. 

Gary R. Giewat, PhD

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Gary R. Giewat, PhD, is director of research for American Jury Centers, a trial and communication consulting firm, in Hailey, Idaho.

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).