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Te s t i n g t h e Wa t e r s
How to Use Jury Consultants
Without Blowing the Budget
By Leslie Ellis, Ph.D.
®
DISCOVERY • TRIAL CONSULTING • PRESENTATIONS
A s companies become more concerned with litiga-
tion costs, they are asking their attorneys to keep
their budgets as lean as possible. As a result, some attorneys
Afterwards, the jurors discussed whether the location
looked dangerous to them or not.
In another instance, an attorney in a case about a
feel they can do without any kind of jury consulting. breach of contract worried that jurors would sympathize
But that reaction happens in part because many with the plaintiff and be more inclined to find in his favor
attorneys are unclear about what jury consultants do, how simply because of his friendly, local-boy demeanor.
much their services cost and in what kinds of cases it’s Surrogate jurors saw video clips from the plaintiff’s
appropriate to hire a consultant. deposition and answered questions about their reactions
The jury consulting industry has responded to rising to his testimony.
costs and shrinking budgets by developing a wide variety Neither of these attorneys had much in the budget
of services that focus on specific issues and are cost- for jury research. But they harbored concerns about one
effective. Even those with a small or medium-size budget aspect of the case and didn’t want to go to trial without
can use some of the services of a jury consultant. Here are testing the water first.
a few options attorneys can use without spending a bundle. Another key concern is jury selection. Some attorneys,
One pared-down service is a mini focus group, known for example, feel uncomfortable with their level of
as an issue study. The study basically uses the same experience with jury selection, or they are unfamiliar with
structure as a mock trial, testing case themes and arguments the location and would like some local knowledge. Other
in front of surrogate jurors within the venue where the attorneys want another pair of eyes and ears, or they simply
case is filed but at a fraction of the cost and on an extremely don’t have time to worry about jury selection. An
abbreviated scale, such as by using shorter presentations experienced consultant can help with the process.
or fewer jurors. This kind of exercise is most useful when In situations like this, the consultant is in court during
there are one or two key issues that the team is particularly the actual jury selection and gives advice about what
worried about, there is one discrete issue that can be easily questions to ask and to whom, who to try to strike for
separated from the rest of the case, or there is a particular cause, or how to prioritize peremptory strikes. Consultants
document or difficult witness that is causing concern. can also draft voir dire questions for an attorney to submit
An issue study typically lasts three to four hours and to the judge or ask himself.
involves a brief presentation to a small number of surrogate There are many ways to ask potential jurors if they
jurors in locations where the case has been filed. Most of feel a certain way or subscribe to a certain belief. Jurors
the time is spent assessing jurors’ reactions to the are more likely to answer some questions honestly than
information. The objective is to spend a short amount of others. For example, there is a socially desirable answer
time on a small number of troublesome issues, rather than to the question “Do you have any negative biases against
a lot of time and resources on testing the whole case. companies from China?” Asking about biases that way
For example, an attorney in a case involving premises will not be very effective – everyone will know the right
liability was worried about whether a location within a answer. A consultant can help develop a set of questions
building looked dangerous. The issue study involved intended to identify jurors with certain biases in a less
showing a small group of surrogate jurors from the venue obvious way.
photographs of the location and giving them short A consultant also can strategize with attorneys before
presentations on the danger or safety of the location. the actual jury selection rather than be present during the
jury selection. Most consultants have some flexibility on Beyond assisting with witness preparation and jury
fee structure. It’s not uncommon for an attorney to say, “I selection, there are many other ways in which a jury
only have $1,000 for this, so please write me some voir consultant can offer help on an hourly, cost-controlled
dire questions or let’s discuss strategy until your bill hits basis. Consultants often work with attorneys in crafting
$1,000.” the all-important opening statement or closing argument
Witness Preparation to help ensure that the key themes and story lines are well
incorporated.
Jury consultants can help lawyers on a tight budget
For example, an attorney with a small, local breach-
prepare witnesses for deposition or trial testimony. This
of-contract case knew he needed to help jurors understand
typically entails the consultant meeting with the attorney
why his client was attempting to enforce a contract in its
and the witness, seeing how the attorney and the witness
customer service program for a product that didn’t work.
interact with each other and discussing tips and strategies
He knew jurors would ask, “Why should the defendant
for direct examination and cross-examination. The witness
have to pay for something he will never be able to use?”
then submits to a few rounds of videotaped mock
Jurors needed to understand from the start that the product
examination, on the basis of which the team discusses the
didn’t work because of the defendant’s actions, not the
witness’s strengths and weaknesses.
manufacturer’s actions, and therefore, according to the
In no way does a consultant’s work replace the ways
contract, the defendant was still obligated to pay for the
in which an attorney will prepare the witnesses; the
customer service program. The attorney decided the best
consultant only helps the preparation to be more effective.
use of his limited resources was to have a consultant assist
Jury consultants have extensive exposure to how jurors
with his opening statement to get that message across
and judges react to witnesses, how they decide what weight
to give to a witness’s testimony, and how to help a witness most effectively.
feel most comfortable and confident while testifying. A consultant can also offer advice on witness order
For example, a consultant can help identify behaviors at trial, observe portions of the trial to see how key witnesses
and ways of answering questions that will make a witness do on the stand, or simply spend a couple of hours
look more credible and trustworthy. Jurors pay close strategizing with the trial team about each party’s strengths
attention to witnesses’ verbal and nonverbal and weaknesses. The targeted use of hourly consulting
communications, and a consultant can help eliminate any allows for assistance in the areas lawyers needs it most.
uncomplimentary behaviors, such as tilting the head or Because consultants work on an hourly basis, the attorney
frequently drinking water. They can also help an expert completely controls the cost.
understand his audience’s ability to comprehend complex These services provide a peek at ways a jury might
information, and they can review public speaking evaluate a piece of a case. They can be useful in any area
techniques with a worried novice witness. of litigation and in any size case. A general rule of thumb
Jurors focus heavily on the messages in witnesses’ is that, if $2 million or more is at stake, jury research can
testimony, but they also pay close attention to the messenger. fit within the budget. If there is less than $2 million
Having a consultant spend a few hours with a witness is involved, a strategic use of hourly consulting services
an inexpensive way to help that testimony be as powerful might be the better use of resources.
and persuasive as possible. Juries are far less likely to hear cases than several
years ago. In fact, only around 2 percent of all filed cases
in both state and federal courts are tried before a jury. One
common complaint about juries is that they are
unpredictable. Taking advantage of the available jury
consulting options can help attorneys reduce
unpredictability and feel more comfortable with presenting
their case to a jury.
This article appeared on May 8, 2006 in the Texas Lawyer.
Dr. Leslie Ellis is a senior trial consultant for TrialGraphix,
a full-service national litigation consulting firm specializing
in discovery, trial consulting, and presentations.
TrialGraphix has offices in Miami, Atlanta, Chicago, New
York, Los Angeles, Washington, D.C., Philadelphia, and
Houston.
Nationwide: 800-444-6766
www.trialgraphix.com
