The importance of a competent
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
"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
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
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
What do you want to avoid when you are looking for a jury
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.