Exciting News!

Dear Followers of the The Jury Box,

It is with great excitement and anticipation that I write today to tell you all that I have recently accepted a position with TrialGraphix, the nation's premier full-service litigation consulting firm. The company website can be found at trialgraphix.com.

TrialGraphix, as its name would imply, is known for unparalleled design and execution of courtroom graphics and animation. Many of you know my views on the importance of visual learning among jurors, so I am thrilled to be associated with a firm at the cutting edge of that field. Now, I can not only make recommendations to my clients about demonstratives, but I can offer those clients the talent and resources at TrialGraphix to make those demonstratives come to life.

TrialGraphix is also at the forefront of trial technology, providing the expertise and technical solutions for any litigator's courtroom needs.

Of particular interest to me -- and you, too, I hope -- is TrialGraphix's long track record as one of the country's most respected jury consulting firms. One reason I agreed to join TrialGraphix is the tremendous respect I have for the jury consultants who are already there. I can't wait to work with them and to introduce them all to you.

For those of you who have worked with me in the past, rest assured that I remain committed to serving the needs of my existing clients. I will be running the jury consulting practice in the New York City office, which is a big change for me, but I will be in Boston often. This position provides me with the best of both worlds: the opportunity to continue to serve my New England clients and the potential to help future clients all over the country.

Since I have subscribers to the Jury Box from all over the country (and even other parts of the world), I want you to know that there is probably a TrialGraphix office near you. The company has offices is San Francisco, Los Angeles, Chicago, Houston, Minneapolis, Miami, Washington and New York. By all means, feel free to contact me directly with any jury issues that come up, but know that we have experience working in every state.

I plan to continue to publish the Jury Box Blog in much the way I have always done so. I apologize for the recent dearth of posts, but I have been quite busy preparing for my new job. I expect that the logo will change to reflect my association with TrialGraphix, but otherwise it will remain pretty much as is. I hope to get some of my new colleagues to contribute guest posts for time to time, especially in the courtroom graphics and trial technology fields.

Thank you all for your continued support of the Jury Box Blog and, by all means, look me up the next time you are in The Big Apple!

-Edward

Heat, Humidity and Trial Consulting: What Services Lawyers Use Where

What we've learned so far

To review, I posted a short survey about trial and graphics consultant usage by trial attorneys. I encourage those who have not yet taken the survey to check it out here. In my previous two posts (Post 1, Post 2), I reviewed some general trends in the data. While the number of respondents (42) precludes any concrete conclusions, the data are at least suggestive.

More experienced attorneys were more likely to report having used trial consulting and graphics consulting services at some point in their careers. This is not surprising since a lawyer who has tried a large number of cases is likely to have run across at least one along the way that warranted the hiring of a jury expert or graphics professional. In addition, litigants in high-stakes cases, where the hiring of outside consultants seems most likely, typically choose to place their cases in the hands of experienced litigators. Similarly, large firms generally assign their largest cases to their most experienced lawyers.

The second major finding is that civil defense attorneys are more likely to hire trial and graphics consultants than are their colleagues who handle plaintiffs' cases. Many of the criminal defense attorneys who participated in the survey reported having used a trial consultant, but this result is likely skewed by the large number of them who had taken advantage of my Pro Bono services. Many fewer of them reported having employed a graphics consultant.

Who Wants What When?

I was not surprised that civil defense attorneys were the primary consumers of trial consulting services. They typically have an insurance company bankrolling litigation and are more likely to have corporate clients. So, the deep-pocket, repeat-player litigants tend to be on the defense side of the ledger. 

I also expected to find that civil defense attorneys used a different mix of trial consulting services than did their plaintiff counterparts. This was not born out by the data. Consider the following graph. You can click on any graph to view it much larger.

Because civil defense attorneys make up such a large fraction of my sample, these absolute numbers are a bit deceiving. To correct for this, I converted these data into percentage of the relevant sample. The reconfigured graph is below.

Those plaintiff attorneys who reported using trial consulting services were just as likely to report running mock trials (a big ticket item) as were civil defense attorneys. One possibility is that once the stakes cross a critical threshold, a plaintiff attorney thinks just like a defense lawyer. That is, there is an "all or nothing" mentality to trial consultant usage. The other possibility is that many plaintiffs' attorneys are unaware that trial consultants provide a suite of inexpensive services, as well as conducting large pre-trial research projects. That is, a plaintiff attorney might know that she can hire a consultant to run a mock trial for $30,000, but she might not know that she can hire one to help draft voir dire questions for $1,000. This is a question for further study.

Note the frequent usage of both case evaluation and jury selection services by criminal defense attorneys. This is, once again, the product of this category of respondents being dominated by attorneys who have received pro bono assistance from me, which has taken the form of case evaluations and jury selection help. It remains an open question whether these are the services most often employed by criminal defense attorneys more generally.

Where is all the action?

When breaking the sample into regions, things got a bit dicey. With only a few dozen lawyers completing the survey, it was simply not possible to sensibly explore which regions' litigators used precisely which services. I did look into using only civil defense attorneys to investigate regional differences, but what few trends emerged mirrored those present in the full sample. I illustrate below trial and graphic consultant usage by region, without attention paid to specific services.

In considering these graphs, it is important to keep in mind the mix of attorneys represented in each region. The West, Mideast and South regions are comprised of 1/2 to 2/3 civil defense attorneys. The New England region sample is dominated by criminal defense attorneys and only contains two civil defense attorneys. The Midwest sample is entirely civl defense attorneys.

With all these caveats, are there any comparisons to be made, at all? Well, it is instructive to look at the responses of attorneys in the Mideast and South regions. The sample sizes are comparable, as are the distributions across legal specialties. Note, however, how much more likely a lawyer from the Mideast region is to report that she had never used either a trial or graphics consultant. There is one young lawyer from New York who reported extremely high usage rates for both trial and graphics services, as well as a strange mix of case types. If one drops this observation as unreliable, the differences between the two regions become even more pronounced.

Anecdotally, I know Florida, Georgia and Texas to be hotbeds of trial consultant activity. There are, however, several trial consulting firms with offices in the tri-state region (near New York City). As such, I am a bit surprised by these dramatic differences.

What next?

I designed this little survey to gather some preliminary information and motivate further study. I think that it has served to accomplish that task. I know that the Research Committee of the American Society of Trial Consultants has plans to conduct a broader and deeper study of these issues in the near future. To that end, if you have suggestions for questions to ask, lawyers groups to approach for participation or groups that would be interested in the results, please let me know. I will forward along all correspondence to the Research Committee.

While a data dude at heart, I know the value of qualitative research, too. So, if you have any questions about this survey or comments about my analysis, please do get in touch. Tell me your story. Share your concerns.

In the meantime, I will leave the survey open for further respondents. If I get enough additional data, I'll post an update here on my blog.

To those of you who took the time to complete the survey, "Thanks very much for your help."

-Edward

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.