Selecting A Trial Consultant
With the exception of witness preparation, trial consulting services can be divided into three related endeavors…research, trial messaging and jury selection.
Research is used to assess case strengths and weaknesses, help develop the case for presentation and to help develop a juror profile. What you discover with research can save a defendant untold dollars in settlement monies, trial costs and verdict awards or maximize a plaintiff’s settlement or verdict award.
It is how a trial consultant uses research feedback, not how they get it, that makes all the difference.
The truth is though, that any law firm or general counsel staff willing to devote the necessary time and effort to the task can conduct the same research exercises that trial consultants use and get reliable results. The research methods used by trial consultants, even the ones claiming proprietary status, are for all intents and purposes similar.
In fact, trial research isn’t much different than the research done in the marketing and entertainment industries. You conduct a survey, you hold a focus group, you talk to people.
Objectivity, insight and understanding are required to synthesize the research and it doesn’t matter whether one uses instinct, academics or practical experience to do it. So it is not a trial consultant’s degree you should be impressed by.
It’s the degree to which a consultant can recognize a persuasive concept, identify a moving theme, craft a compelling message or recognize receptive or unreceptive jurors that matters most.
A trial consultant must be able to:
- Identify the issues that will resonate with jurors.
- Read between the lines of your case facts to understand how the case will be viewed by a majority of people.
- “Listen” between the lines of mock juror feedback to understand what jurors are really saying and what is really motivating them.
- Recognize and rank potential juror biases.
- Help craft an argument that will sway jurors in spite of their biases.
- Grasp a case on several levels (intellectual, emotional and ethical).
You can’t really know who is or isn’t a bad juror unless you know what a case is really about.
So many trial consultants talk about jury selection as a “deselection” process…simply eliminating bad jurors. To effectively do that however, you need to completely understand the intellectual, emotional and ethical complexities of a case.
That deep understanding makes it possible to identify the jurors that will most likely be open or closed to hearing your story. If a trial consultant doesn’t get that, they will invariably blacklist jurors who might prove strong advocates or approve jurors that ultimately vote the wrong way.