What You Should Know

With the exception of witness preparation, trial consulting services can be divided into three related endeavors…research, case presentation (or argument construct) and jury selection.  Research is used to assess strengths and weaknesses and help develop the case for trial and to help develop a juror profile.  What you can discover with research can ultimately save a defendant untold dollars in settlement monies, trial costs and verdict awards or maximize a plaintiff's settlement or verdict award.

The truth is though, that any litigation firm or general counsel staff willing to devote time and effort to the task can conduct the same research exercises that trial consultants use and get reliable results.  The learning curve is not steep.  The research methodologies used by trial consultants, even the ones claiming proprietary status, are for all intents and purposes similar.  In fact, they are not much different than the research methodologies used in the marketing and entertainment industries.  You conduct a survey, you hold a focus group, you talk to people.  It is how a trial consultant uses that feedback not how they get it that makes all the difference.

Objectivity, insight and understanding are required to synthesize the research and it doesn't matter whether one employs instinct, academics or practical experience to do it.  So it is not a trial consultant's degree you should be impressed by, but the degree to which they demonstrate their savvy.  Even without research, it is a consultant's ability to recognize a persuasive concept, identify a moving theme, craft a compelling story, or recognize which jurors will likely be for or against you that matters most.

A trial consultant's real credentials are their win-loss record, the quality of their advice or whether they significantly advance a client's cause.  They must be able to identify the issues that will resonate with jurors.  They must be able to read between the lines of your case facts to understand how the case will be viewed by a majority of people.  They must be able to "listen" between the lines of mock juror feedback to understand what jurors are really saying and what is motivating them.  They must recognize and rank potential juror biases.  They must be able to help craft an argument that will sway jurors in spite of their biases.  They must thoroughly grasp a case on several levels…intellectual, emotional and ethical…so they can find the jurors most receptive to hearing that story and conversely the jurors most likely to reject that story.

So many trial consultants talk about jury selection as a "deselecting" process…simply eliminating bad jurors.  But it is very difficult to effectively know who is or isn't a bad juror unless you know what a case is really about.  If a trial consultant does not get that, they will invariably blacklist jurors who might prove strong advocates or approve jurors that ultimately vote the wrong way.