June 01, 2017

Trial Tales: Jury Consultants Are Not Bull

Chip Babcock

Back before he was “Dr. Phil,” psychologist and jury consultant Phil McGraw and I visited an insurance adjuster in California. I was trying to get his trial sciences firm hired on an important case our firm was handling. I was convinced that his scientific approach, not only to jury selection but also to trial presentation in general, could make the difference for us.

“Oh, I don’t trust these jury consultants,” the claims adjuster told us. “It’s just a bunch of voodoo. This is certainly not science.”

Although she was still not totally sold after hearing our pitch, the adjuster gave the green light. With our consultant’s help, we won a very difficult case.

The mirror jury Phil assembled for us, which sat in the courtroom throughout the trial, saved me from a critical mistake. They told our team at the end of one day that—contrary to my own impression—I had not laid a glove on the main plaintiff. So I stayed up all that night redoing the rest of my cross. After the next day’s proceedings, the shadow jury told us that they hated the plaintiff.

During that same trial, Phil helped enormously with preparing our own case. Our chief executive officer (CEO) witness could not believe that his company had been sued, and he was prepared to give an arrogant, angry, dismissive response during cross-examination. Often jurors react not so much to what the witnesses say but how they say it.

Phil was able to reach the CEO in ways that I was not. He appealed to the CEO’s analytical mind with statistics about communications through body language. He ended a lengthy discussion by saying, “Look, these [plaintiffs] are here trying to pick your pocket. You can either let them or you can get real and think about how you can tell the truth effectively.”

A few days later, the CEO made a great witness. Phil had dealt with the witness’s psyche and had prepared him psychologically to testify.

After the jury verdict in our favor, I assumed the adjuster was pleased. But I never heard from her again. And since then, I have spoken to many litigators who remain skeptical of trial consultants. To be sure, some consultants are better than others, but a good consultant, who can help with the psychological aspects of a trial, is invaluable.

For example, I recently had a witness who was the general counsel of a Fortune 50 company and was about to be deposed. He felt guilty that his company had been sued. “If I had been doing my job as general counsel,” he said, “this would never have happened.” As a more dispassionate observer and his lawyer, I told him, repeatedly, that this was not his fault and the company’s actions that led to the litigation had nothing to do with him. As his deposition approached, his sense of guilt only increased, and it was adversely affecting the way he approached his testimony.

I asked a trial consultant—not Dr. Phil, who has gone on to other things, including the new CBS television series that he created, Bull, a fictional drama featuring a jury-consulting firm—to help. After several sessions, which can only be described as therapy (my consultant holds a graduate degree in psychology), the general counsel came to terms with his emotions about the case. His testimony turned out well because he did not allow himself to admit, out of a feeling of guilt, to conduct that had not, in fact, occurred. Witnesses bring a complex set of emotions to their depositions and trial testimony, and a skilled cross-examiner can play on these emotions and elicit responses that, as a whole, paint a picture that is not true under the facts as they occurred at the time. The moral of the story is that witnesses have to be prepared emotionally as well as factually.

This feeling of guilt is something you see over and over in witnesses. Still, many trial lawyers think that using a psychologist to help with trial prep is all nonsense. “I just tell my witnesses to be themselves,” one trial attorney told me recently.

Sometimes, in my experience, even good people make lousy witnesses when they are “just themselves.” Jury consultants can help these good people present themselves at their very best.

Chip Babcock

The author is a litigation partner at Jackson Walker LLP in Houston and Dallas.