Evidence Driven Deliberations enhance accuracy and consensus

A Missouri jury is confronted with a cold case

In 1976, Becky Doisy disappeared. A man named Johnny Wright was wanted for questioning in the case. The problem was that Johnny Wright was nowhere to be found. More than thirty years later, Johnny Wright was discovered living as Errol Edwards is Georgia and then Texas. 

The state's case depended on the testimony from Wright's former roommate, Harry Moore, as well as that of William Simmons, a man who knew Wright and Moore from a local methadone clinic. So, the jury was faced with deciding a murder case, based upon little more than the decades-old recollections of two shaky witnesses who had their own problems with the law.

A Conscientious Deliberation

Melissa Spain was the foreperson of the jury. In an interview with The Missourian, she discusses how she realized that the jury had a difficult job and needed to be very careful about how they interpreted the evidence. The first thing that Ms. Spain did was review the 12 pages of jury instructions with her jury in detail, taking as long as necessary for everyone to understand what was required of them.

The jury then turned to the evidence in the case, reviewing the testimonies of Moore and Simmons in detail. Each juror was asked to volunteer any ideas and questions. According to Ms. Spain, “It was a room full of logical, open-minded people just really taking it seriously and looking at every possible angle.” 

Importantly, the jury did not take a vote on any of the verdicts until it had thoroughly reviewed all the evidence. After six hours, the jury returned a guilty verdict.

Evidence-driven vs. Verdict-driven deliberations

The story Ms. Spain tells highlights the advantages of evidence-driven deliberations. Juries sometimes focus on the questions of who did what to whom when -- the evidence -- reserving for later the issue of what their answers mean from a legal perspective. Other juries immediately take votes about which verdict is the right one. This tends to turn deliberations into a competition between two camps to see which can "convince" the other to change its vote. 

Ultimately, of course, a jury needs to take a vote. So, deliberations will eventually become verdict-driven. Delaying a vote, however, and keeping the jury in evidence-driven mode has several advantages.

1. More material and relevant evidence enters the deliberations and fewer factual errors go uncorrected.
2. A larger number of jurors participate actively in the discussion.
3. The tenor of deliberation is more inclusive, polite and respectful.
4. Jury instructions receive greater attention and adherence.
5. Jurors report greater satisfaction with both deliberations and the final verdict.

I have seen judges suggest to juries that they not rush to take a vote, which seems to me a sensible idea. As a litigator, you can request that the judge offer such advice to your next jury. If you don't think that the judge is likely to adhere to such a request, you might consider including language in your closing argument that hints at keeping deliberations in a evidence-driven mode as long as possible: "As you review the evidence in this case, combing through the testimony and exhibits, before you know how your fellow jurors will vote, I hope that you will consider..." 

If a thorough jury is a good jury for your case, try to keep them out of verdict-driven mode as long as possible.

Different Strokes for Different Folks: Consultant Usage varies by specialty and experience

Digging Deeper in the Data

In my last post, I reviewed some general trends in the data from my survey of trial and graphics consultant usage by trial attorneys. As I mentioned in the last post, the survey is completely confidential and only takes about 2 minutes to fill out. Several lawyers responded to my invitation and followed this link to participate in the survey. As such, the data I review today includes a few more observations. The more the merrier, so please take the survey if you have not yet done so!

In perusing the data, I noticed a few interesting trends. These relate to how long a respondent has been practicing law, what kind of cases she handles and where her office is located. I now turn to some of these trends.

Youth vs. Experience

One might expect that young lawyers would be more likely to hire trial and graphics consultants because these folks have grown up in the "high-tech" era. Everything in their lives has been accompanied by fancy graphics and animation. These young lawyers also went to law school after the adoption of the interdisciplinary approach to legal education. A lawyer under 50 years of age is more likely to have been taught by dual-degree professors and might, therefore, have a greater appreciation for the value of psychology and other social sciences in litigation.

As illustrated in the graphs below, this expectation is not born out in the data.

Trial Consultant Usage by Attorneys

More than 15 years experience    Less than 15 years Experience

Graphics Consultant Usage by Attorneys

More than 15 years Experience       Less than 15 years Experience

Trial lawyers with more than 15 years of experience were much more likely to report having employed a trial consultant or graphics consultant than their younger colleagues. So, what do we make of these results?

I think that there are a few factors at work here. First of all, a more experienced litigator will have handled a larger number of cases. As such, she is more likely to have come across some case along the way that seemed to require the expertise of an outside consultant, with respect to either jury or graphics issues.

Second, more experienced litigators tend to handle the higher stakes cases. This is both because litigants with a lot on the line seek out experienced litigators and because large firms assign their highest stakes cases to their most experienced lawyers. These high stakes cases are the ones for which lawyers see the most justification for incurring the expense of a trial or graphics consultant.

Exactly one respondent indicated that she uses a trial consultant in more than half of her cases. She is also the one lawyer who said she uses a graphics consultant more than half the time. This litigator has been practicing for less than five years, supporting, at least anecdotally, the "new breed of lawyer" hypothesis.

Cost Conscious Courtroom Counsellors

In the previous section, I raised for the first time the influence clients can have on their attorneys' trial strategy decisions. The survey sample is made up almost entirely of three kinds of trial lawyers, with different kinds of clients. More than half of the respondents handle predominantly civil defense cases. The remainder is roughly evenly divided between plaintiffs' attorneys and criminal defense attorneys. The differences in reported trial and graphics consultant usage among these three groups is quite remarkable.

Trial Consultant Usage by Attorneys by Primary Practice Area

Civil Defense         Civil Plaintiff           Criminal Defense

Civil defense attorneys are very often hired by insurance companies, who are the ultimate deep-pocket, repeat players in the judicial system. Handling thousands of trials annually, insurance company risk managers understand the value of pretrial research, witness preparation and well-designed jury selection strategy. A litigator might not be inclined to reach out to a consultant for advice, figuring that she has all the tools she needs to win a case. When an insurance company claims supervisor tells that litigator to run a focus group study, she does as she is told. From a personal perspective, I know that many civil defense attorneys call me because an insurance company has told them to "get your jury guy on the phone and set up a mock trial." Under such an arrangement, the litigator incurs none of the cost associated with hiring a consultant.

By contrast, most plaintiffs' attorneys reported having never used a trial consultant. This should not be surprising, given that their clients tend to have less money to work with. In addition, many plaintiffs, having never been involved in a trial before, have unrealistic expectations about the cost of litigation. A plaintiff attorney is under enormous pressure to keep costs down. The financial situation facing a plaintiff attorney tends to differ from that of the defense attorney on the other side of the aisle. Many plaintiffs' attorneys are solo practitioners or members of very small firms, handling mostly small cases. When a high stakes case does come along, such an attorney faces severe cash flow problems financing the litigation. While such a lawyer might very much want to hire a trial or graphics consultant, she might simply not have access to the funds to do so. I know that many of us in the trial consulting community have attempted to implement creative fee structures to make our services more available to plaintiffs' attorneys.

The graph representing trial consulting usage by criminal defense attorneys is probably quite misleading. I head the New England Team of the pro bono initiative of the American Society of Trial Consultants (ASTC). In this capacity, I have been running free clinics for criminal defense attorneys here in Massachusetts. I know that 3 of the 5 criminal defense lawyers who report having used a trial consultant are folks I have personally helped as part of this pro bono initiative. I would need a much larger, and geographically diverse, sample to know how common it is for criminal defense attorneys to use trial consultants.

By comparison, the data on graphics consultant usage should be more reliable.

Graphics Consultant Usage by Attorneys by Primary Practice Area

Civil Defense            Civil Plaintiff          Criminal Defense

The discrepancy between civil plaintiff and defense attorney resource usage is even more pronounced with respect to graphics consulting. A quarter of civil defense attorneys reported hiring a graphics consultant for more than 20% of their cases. By contrast, three-quarters of plaintiffs' lawyers report never having hired anyone to design or produce courtroom graphics.

The one young lawyer, who indicated that she uses trial and graphics consultants in more than half of her cases, handles both criminal and civil defense cases.

From What to Where

We have now discovered differences in consultant usage among lawyers who handle different types of cases. Civil defense lawyers make much more use of trial consultants and graphics consultants than do their less well financed colleagues. We also know that in some areas of tort law, the defense wins 90% of jury trials. It would be purely speculative to connect this success rate with use of trial and graphics consulting services, but it is suggestive enough to warrant further study.

Fortunately, with the exception of criminal defense attorneys, the lawyers who completed this survey are distributed throughout the country. This will provide me an opportunity to explore whether there are regional variations in trial and graphics consulting usage. I will have to be mindful, however, of the trends I have uncovered with respect to seniority and practice area. If the lawyers in one region seem to hire a lot of graphics consultants, I will need to make sure that it is not simply because they are all civil defense attorneys.

Finally, I wish to explore whether there are any systematic variations in the types of services for which attorneys hire consultants. Is it mostly for jury selection in one region and mock trials in another? Do certain types of attorneys hire consultants to help with witness preparation more than others? I will address these questions, along with geographic variations, in my next post.

Trial Consultant Usage All Over the Map

The Survey at a Glance

Several weeks ago, I was in conversation with a colleague about the different approaches taken by various lawyers with respect to using trial consulting services. Some lawyers don't see any use for our expertise, or believe that their clients just can't afford to use us. Some lawyers employ the occasional consultant to run jury research, but really want a project manager more than an expert in jury behavior. There are many lawyers who will call in a trial consultant for the occasional case when she experiences uncertainty regarding a particular jury issue. Finally, there are a handful of lawyers who work with a trial consultant on virtually every case, finding their expertise to be well-worth the investment.

I commented, rather off-handedly, that I thought there were probably lots of regional differences. I think that differences in procedural rules (e.g. attorney conducted voir dire, ad damnum usage) and legal culture result in their being jurisdictions where litigators make great use of trial consulting services and others where attorneys rarely hire trial consultants.

I soon realized that this was a testable hypothesis. So, I went off to SurveyMonkey.com and crafted a short survey to investigate which litigators hire trial consultants (and courtroom graphics consultants) and which ones don't. I included questions about how long each respondent has been a lawyer, what kind of cases she handles, and where her office is located.

The survey is still live and I will be analyzing the data long into the future. So, if you are a trial lawyer, and you have not yet filled out the survey, please do so here. It only takes about 2 minutes and it is completely anonymous.

Spreading the Word

As many of you know, I am extremely active on LinkedIn. I posted a notice about the survey as a discussion on many of the groups to which I belong. I also tweeted an invitation to participate on several occasions. Finally, I sent out an email to everyone on my professional distribution list (formerly used for my newsletter, before it became this blog). I would conservatively estimate that at least one invitation to participate was seen by over 500 litigators.

Well, I wasn't offering to pay respondents. I wasn't raffling off an iPod or a timeshare in Maui. Lawyers are used to billing clients for every 6 minutes of their time and they are extremely sensitive to concerns about online privacy. So, the response rate was not great.

As of today, 37 people have completed the survey. Of these, 5 indicated that they were not lawyers (although a few might work for law firms in some other capacity). 28 of the respondents indicated that they heard about the survey on LinkedIn. 8 found out through email, and 1 via Twitter. Needless to say, any conclusions to be drawn from such a small sample will be speculative in nature. I do hope, however, that the results will give us something to build upon in the future.

Preliminary Results: Trial Consulting

I was careful in the survey to differentiate between "Trial Consulting" services, which deal with the social psychology of jury behavior (jury selection, witness preparation, focus group studies, etc.) and "Trial Graphics" services, which include illustrations and animations for courtroom use. Here is a graph illustrating the frequency with which survey respondents employ "Trial Consulting" services, in terms of percentage of cases.

Trial Consulting Service Usage: Full Sample

As you can see from the figure, very few attorneys indicated that they used trial consultants for more than 20% of their cases. The interesting distinction here seems to be between those litigators who sometimes use trial consultants and those that never do. For my sample, approximately 60% of respondents indicated they had ever used a trial consultant. 

There are a couple of reasons to be skeptical of these numbers. First, I would expect that participating in the survey would be more interesting to those lawyers with some familiarity with trial consulting. As such, I thought that most of the respondents would be lawyers who had worked with trial consultants in the past. Second, the publication of the survey was heavily skewed towards people who know me in some capacity. Of those, I would expect that my clients would be particularly inclined to help me out by filling out the survey. (Based on zip codes and other survey responses, I am fairly sure that about a half-dozen respondents are, in fact, clients of mine.) In light of these factors, I believe that these results probably overestimate trial consultant usage in the general population.

I am located in Massachusetts and most of my clients are from New England. This is reflected in the large number of respondents from this region (9). That said, it is gratifying to see that the remainder of the respondents come from all over the United States. I will be discussing regional variations in the data in my next post.

Preliminary Results: Graphics Consulting

I am what I refer to as a "behavioral" trial consultant. While I advise clients on the kinds of exhibits they might employ at trial, and evaluate the utility of the graphs and illustrations they already have, I do not provide trial graphics services. As such, the responses with respect to graphics consulting are probably less skewed by the participation of my own clients. The graph below shows graphics consulting usage for the complete sample.

Graphics Consulting Service Usage: Full Sample

About half of the survey's respondents have used a graphics consultant for at least one case. I think that most of us would expect trial graphics to be used more frequently than trial consulting. The discrepancy between this expectation and my data undoubtedly arises from the participation of many of my clients. Several of these attorneys, especially those doing criminal defense work, have benefitted from my active pro bono practice. They have not had similar access to affordable trial graphics assistance.

Do the Same Lawyers use Both Services?

As I mention above, there is reason to believe that at least a handful of attorneys would make use of trial consulting services, but not graphics consulting ones. Is this a common occurrence? The graph below answers this question.

Joint Usage of Trial and Graphics Consulting Services

As a general rule, lawyers either use litigation consulting services of both types, or they don't use either. Only a few litigators reported using graphics consultants but not trial consultants. I find this result a bit surprising. While I did not ask respondents about the size of their firms, I would expect that this sample is heavily weighted towards small and mid-sized firms, whose attorneys tend to be heavier users of LinkedIn. Lawyers from large firms (many hundreds of lawyers) are unlikely to have found their way to my survey. Such firms handle huge IP and business litigation cases, in which courtroom exhibits are sophisticated and plentiful. The underrepresentation of such litigators from my sample have certainly affected the nature of my results.

Questions to be Explored

These preliminary results are certainly interesting. We have responses from many attorneys who have used a trial or graphics consultant to help with jury trials. Who are they? What kind of work do they do? Where do they practice? These are the more nuanced questions that I will be addressing in my next two posts.

In addition to surveying experience with consultants, I asked respondents about which kinds of services they had hired consultants to perform. I provided an extensive list, including jury selection, witness preparation, illustrations, animations and more. I will explore in a future post trends in the data, with respect to which trial lawyers made use of which services.

So, stay tuned! Same Bat-time, same Bat-channel.

And remember, it's not too late to contribute your own experience to the data. Take the survey here.