Essay

The importance of a competent Jury Consultant.

To date, the focus on jury consultants has been on their participation in the jury selection process. A recent article in the Dallas Morning News in June of 2002, entitled "Judging Juries", focuses on the wrong issue, almost exclusively jury selection. In declaring that jury selection is an art, not a science, it states in a quote,

"Many trials are won and lost during jury selection....But it's not because jury consultants are trying to stack the deck. It's because jury consultants and lawyers are successful or unsuccessful in figuring out which jurors are unreceptive to their message and getting rid of them."(7)

This is a good example of focusing on the wrong issue. The important concept here is not "jury selection" but the "message" or story that needs to be conveyed. It is difficult to know what is needed in jury selection if the themes of a case have not been tested with prospective jurors. It is not uncommon for trial lawyers to have little input into jury selection or voir dire, particularly in federal court. Therefore, it is much more important for the litigation team to know how to best present their case, weaving a simple and compelling story for the jury. It should be a story that helps put the spotlight on the strengths of your case and diminishes your weaknesses. That is not jury selection. The article itself, if read by potential jurors, would adversely affect their attitude toward the judicial system. Such shallow information circulating in the general public adds further to the adverse trends already being established in the American society and an increased cynicism toward the judicial system.

How does the general public see jury consultants? Do they see them as people who select or stack juries? That seems to be true. How do lawyers see jury consultants? Some lawyers see us as not regulated and therefore question our competence to do the job. Other lawyers consider it almost malpractice not to use consultants in an important trial. Frequently lawyers are confused about how to use trial consultants beyond jury selection. However, those who do use trial consultants tend to be big re-users. We believe that the sophisticated user thinks of a good trial consultant as someone who can help better communicate their best and most persuasive story. Furthermore, a good consultant can help prepare witnesses to be more comfortable in the courtroom and to help better support the story they are trying to communicate to a judge or jury.

For trial lawyers, the continued erosion in the ability to generalize about juror behavior will probably make jury consulting and particularly mock jury research more important in the future. Good jury research will become more important in setting trial strategy. However, in turn, the trial consultants who are executing this research must take much greater care. Setting the specifications for the recruiting of the mock jurors is one example of the need for particular care and attention. More attention must be given in seeing that the recruiting matches the specifications of the venue. A closer look at the diversity of the potential juror base is necessary to determine what population is required to have meaningful results, given the observed range of diversity in the juror population for any particular region.

Jury consulting will require a much higher standard of professional preparation. Gone is the day when a person not trained in research methods or group dynamics is able to conduct valid mock jury research sessions. It will require knowledge of statistics and the willingness to collect and analyze the profile of every venue in which a research is to be done. It will require a better record keeping system on the behavior of jurors to be sure that the expectations of the research are met. The jury consultant will have to become involved earlier in the process of setting trial strategy in order that the legal team has a better idea of what they are likely to face in any particular venue.

As the American population adopts more of an individualistic attitude and has less of a reliance on communal responsibility or standardized values, individual differences will increase. The result will be that fewer generalizations about jurors and group behavior can be made. Fewer and fewer accepted "norms" will be valid as people become more and more inner or self directed. Trial consultants can be of particular value because, if properly trained and experienced, they see the world through a different set of lenses than a lawyer. From a different perspective, they can see the juror audience and how to communicate with them effectively.

What do you look for in a good jury consultant? First, you look for someone who has proven technical training in research methodologies; a Ph.D. or a Masters Degree is essential as these techniques are not emphasized in law school or in a standard Bachelor Degree program. For instance, a good consultant should know how to develop a good questionnaire, how to select the proper surrogate jurors to participate in a mock trial in that particular venue, how to properly analyze any data that comes from a mock trial, from a community attitude survey to a change of venue study. For example, you can get a false read on your case and your venue if you do not carefully select the proper cross-section of citizens to participate in a mock jury exercise. Witness preparation and jury selection are then by-products of good case research.

A second criteria for a good consultant is that he or she be familiar with focus groups and is properly trained to effectively run them. This results from good academic training as well as some on-the-job experience with a good trial-consulting firm. Even experience in some other practical research area, like market research, is helpful.

Third, a good consultant is someone who is not afraid to give you strategic advice, rather than just parrot back the information obtained from the research. A good consultant will focus on the strengths and weaknesses of your case, your opponents' strengths and weaknesses; make recommendations on strategies, themes and a possible storyline. The job of a good consultant is to interpret information obtained from any research from the perspective of your potential future audience. A consultant who just summarizes what you have all heard or read is of limited value. You should be able to rely on your consultant to tell you what the results of the research mean for your trial strategy.

Fourth, jury consultants should have some acquired knowledge about how our legal system works. This is mandatory. However, it is odd that a jury consultant is expected to be quite knowledgeable about the law but a lawyer, who has turned jury consultant, is frequently not questioned about his or her knowledge of social science research techniques. The sword cuts both ways and all parties should be familiar with both the legal processes and the social science research techniques required for good jury research

Fifth, doing a thorough document and case review is a standard part of the job. Your consultant should be as familiar with the key facts and issues of the case as you are. Today this aspect is a glaring weakness in a lot of jury research. A trial consultant will be of little use to you or your client if he or she cannot run a focus group because they are unfamiliar with the key facts of your case. Furthermore, a jury consultant will be unable to add useful comments about trial strategy if he or she does not know your case well. This mandates that your trial consultant must be an active member of your trial team.

Sixth, regarding pricing, beware of bargains but also beware of price gouging. A certain financial commitment must be made in order that the job can be done properly. Furthermore, as mentioned above, a good consultant must be intimately familiar with your case and this requires extensive document review by the consultants. It may also require many personal meetings with the trial team. This review should be either included in your research costs or negotiated well in advance because the hourly fees for document review and case meetings with the trial team can add up very fast.

What do you want to avoid when you are looking for a jury consultant? First, avoid anyone who makes exaggerated claims about their ability to select a favorable jury. Second, avoid consultants who make misleading claims that jury research is "predictive". While extremely valuable, jury research provides "indicators" of what strengths and weaknesses your case includes and can provide you with an excellent backdrop for trial strategy.

In summary, as lawyers, you are working in an ever-changing American society. The services of competent, well-trained jury consultants can help you stay on top of these changes.

The previous is an excerpt from Dr. Powell's paper "The Changing Jury Environment" presented at the ABA Annual Meeting, Section of Litigation, May 8, 2004. A complete copy of this paper is MEDIA.html">available for download under the MEDIA.html">MEDIA link at www.slrinc.net.