June 01, 2016

Testing Your Evidence: Before and Even During Trial

Four techniques deserve trial counsel’s consideration in almost every case.

David A. Schaefer

 

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Actors rehearse. Athletes practice. Scientists experiment. But until recently, trial lawyers didn’t. It took professionals from other disciplines to change the ways of trial lawyers.

In the late 1970s and early 1980s, V. Hale Starr, armed with a PhD in communication research, began talking to lawyers about things such as proxemics—the study of behavioral and sociological aspects of physical spacing between individuals and its impact on their anxiety and territorial feelings. Think of the proper spacing between you and the witness or the jury box. Starr went on to coauthor several publications on jury selection and was a founding member of the American Society of Trial Consultants (www.astcweb.org).

At the same time, Donald E. Vinson, whom some regard as the “founding father” of trial consulting, started his first consulting firm. Vinson, who holds a PhD in sociology and market research, emphasized (and still apparently does) an interdisciplinary approach applying statistics, mathematics, sociology, and psychology in working with lawyers across the country.

Use of the observations and techniques pioneered by Starr and Vinson are by no means confined to America’s top trial lawyers. Nor are they limited to high-profile criminal prosecutions or “bet the company” civil cases for Fortune 500 corporations. The four techniques for testing evidence discussed in this article—the mock trial, the summary jury trial, the shadow jury, and the focus group—deserve serious consideration by trial counsel in almost every case, provided the client is willing. It is important to note that all can be managed without the assistance of professional consultants, and I’ve done it both ways. But the cost of using a consultant is rarely prohibitive these days, and using one is recommended.

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