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Wednesday, October 18, 2006

What does a jury consultant do, anyway?

"You're a jury consultant, eh? Just like Gene Hackman in that movie! Hey, did you pick that O.J. jury? Man, you people really screw with the system. By the way, can you help my brother-in-law get out of jury duty?"

If I had a nickel for every conversation on an airplane that started that way.....

OK. Let's get a few things straight. Yes, I can help you choose a jury. That is, I can help you figure out which prospective jurors are likely to be unreceptive, unresponsive or unsymathetic to your case (or will just not understand it). But you should always keep in mind what I tell my clients: In terms of impact on verdict choice, what the jurors see almost always trumps who the jurors are.

This brings me to what I mostly do for clients. I help them present their cases more effectively.

I focus on three key concepts: clarity, coherence and comprehension.

CLARITY: Every part of a lawyer's presentation and a witness's testimony must be clear and concise. It is critical for every juror to understand exactly what each member of your trial team (including your client) is trying to say. Even worse than a lack of comprehension is a miscomprehension. That is, you don't want jurors to think you are saying something you're not.

COHERENCE: People are natural story-tellers. They are most comfortable when they have a complete picture of events and feel like they know what happened. This is especially so during a trial. Don't offer the jury bits and pieces of evidence and testimony. Tell them a compelling story about your client's experience. It must start with opening arguments and continue right through closing. Remember that the other side is trying to get the jurors to internalize a competing story. Make sure yours is better.

COMPREHENSION: When many people think about jury consultants, they think of witch doctors or snake oil salesmen who are trying to twist the minds of the jurors. This is complete nonsense. Unfortunately, jurors are quite capable of twisting their own minds! Especially in complicated cases (which are the ones that go to trial), the biggest obstacle facing any litigator is the ability of the jurors to understand the material presented to them. A smart, well-trained expert does not necessarily make a great witness. Choose good teachers as witnesses. Give them effective visual aids. Make them practice direct- and cross-examination, preferrably before a focus group (or two, or three). A jury can't like your case if it can't understand your case.

Trial consultants come from all kinds of professions and educational backgrounds. They focus on a variety of trial elements. Choose the trial consultant whose approach best fits with your own style and the needs of your case. If you need an effective animation of how blood travels through a heart valve, don't hire a consultant with a background in theater. If you need help with your opening argument, don't hire a statistician. For an excellent overview of the trial consulting industry, as well as a list of consultants from around the country, check out the website of the American Society of Trial Consultants (ASTC) at http://www.astcweb.org .

Where do I fit in this odd menagerie of trial consultants? I am trained as a game theorist and a social scientist. I believe in data, statistics and the scientific method. I pride myself in being up-to-date on the latest empirical studies of jury decision-making. I am not a psychic, a magician or a prophet. I don't blow smoke and I'll be the first to tell you when I really don't know how some aspect of your case will go over. But that is what jury research is for. I can design the right survey, focus group or mock-jury study to get you the information you need to choose the right trial strategy.

Now that you know a bit about the profession and a bit about me, I'll be focusing my attention here on interesting trials, interesting jury research and interesting efforts at trial reform. If you really groove on this stuff, feel free to subscribe to my newsletter at http://www.eps-consulting.com/jurybox.

1 comment:

  1. Sarah H.3:48 PM

    What is your response to the claim that jury consultants are invading the privacy rights of the juror? Voir Dire can last weeks, and can reach into such personal areas as sexual history. However, it is difficult to know if a juror will hold bias unless we know if past events will affect their decision-making process.


    I'm actually doing my undergraduate thesis on jury consultants. Care to shed some light.

    ReplyDelete