Trial consulting gained attention in 1971, when “scientific jury selection” was employed by a group of social scientists in the defense of the Harrisburg Seven, a group of war protesters who faced conspiracy and kidnapping charges. Since that time, the field has grown considerably in terms of both the number of professionals in the field and the range of services offered. The educational and professional backgrounds of trial consultants vary, but doctoral-level psychologists make up the largest percentage of consultants. There are arguably no limits to the types of services that trial consultant can provide, but the most common include community attitude surveys, jury selection, witness preparation, focus group studies, mock trials (also referred to as trial simulation studies), demonstrative exhibit preparation and evaluation, content analysis of media for purposes of change of venue or change of venire motions, shadow juries, and post-trial juror interviews.
Consultant Backgrounds and Qualifications
The trial-consulting industry is unregulated, and there are no educational, training, or experiential qualifications required to identify oneself as a trial consultant, jury consultant, litigation consultant, or any other associated title. The American Society of Trial Consultants (ASTC) states that its members come from the fields of communication, psychology, sociology, theater, marketing, linguistics, political science, and law. Although there are no state or national licensing requirements, the ASTC Professional Code states, “The trial consultant fully discloses academic qualification and consulting experience to potential clients, specifies the services provided, and identifies the objectives of each consultation.”
Trial Consultants Versus Experts
Trial consultants are typically retained by the attorney(s) representing one party in a case to assist with one or more aspects of trial strategy. Trial consultants differ from experts generally in the type of assistance they provide, although there can be similarities in the research methods they employ and overlap in the information or assistance they provide to attorneys. Whereas experts are hired because of their specialized knowledge of a particular field or subject relevant to a case (e.g., fire analysis, medical disease, accounting methods) and it is anticipated that they may testify at trial, trial consultants are generally hired to provide services that will assist the trial team with the assessment and development of case presentation and trial strategies, and it is typically not expected that they will testify at trial.
A wide range of services designed to address pretrial, trial, and post-trial issues are provided by trial consultants.
Jury selection was one of the first services provided by trial consultants when “scientific jury selection” was employed in the defense of the Harrisburg Seven in 1971, and over the years, there has been considerable debate over the purpose, effectiveness, and ethics of trial consultants assisting with jury selection. Generally, jury selection involves attempts to identify jurors who are sympathetic or unsympathetic toward a particular party in the litigation. These attempts may be based on intuitive assessments of potential jurors during voir dire or on research-based “juror profiles” that identify demographic and attitudinal factors associated with favorable or unfavorable attitudes toward one or more of the parties and that are developed prior to the trial. Sources of information about potential jurors include juror questionnaires administered by the court in connection with jury pool maintenance and provided to the attorneys shortly before the trial, community attitude surveys, supplemental juror questionnaires, and the observation of potential jurors during voir dire (which can provide information on their verbal and nonverbal behavior).
Among jurists as well as social scientists, there is substantial variability in the weight afforded to jury selection and beliefs about the influence of individual jurors and jury composition on final verdicts. Empirical examinations have found that juror demographic and attitudinal factors account for a relatively small amount of variance in final verdicts (somewhere between 5% and 15%). However, it can be argued theoretically as well as statistically that in cases where the strength of evidence on opposing sides is evenly balanced and the litigation stakes are perceived to be high, even a slight advantage afforded by means of juror profiles or other empirically derived diagnostic information employed during jury selection can be helpful.
The methodological shortcomings of much of the early research on jury selection have been pointed to as possible explanations for the relatively weak relationships that have been found between juror demographic and attitudinal characteristics and final juror verdicts. Jury selection research that has assessed juror attitudes specific to the characteristics of a particular case has found stronger relationships between juror attitudes and final verdicts.
Community surveys of jury-eligible individuals can be used to develop juror profiles to be used as part of jury selection. They can also be used to assist attorneys in assessing the strength of a case, a range of possible damage awards in civil cases, and the preexisting prejudice in the trial venue against one or more of the parties.
To develop juror profiles, surveys are administered (typically by phone) to a large number of jury-eligible community members in the trial venue or a surrogate venue deemed sufficiently similar to the trial venue. There is no minimum number of required respondents, but as the sample size increases, the margin of error decreases. Consequently, survey data from hundreds of respondents are required to reach margin-of-error rates that are generally accepted as reasonable in social science. The surveys consist of many demographic and attitudinal questions. In addition, a brief summary of the case is provided, and respondents are asked to indicate which side they favor. (This can be in the form of asking respondents to select a “verdict,” but that form of measurement is not required.) Data analyses are then conducted to examine whether particular demographic or attitudinal factors are consistently associated with a verdict leaning or case outcome preference in favor of one party or the other.
If a community attitude survey reveals that, in general and across demographic factors and various attitudes, jury-eligible individuals heavily favor one side in a particular case, the trial team may decide to plea bargain or settle the case rather than go to trial. Survey results indicating an unbalanced case can also help place the potential influence of juror demographics and attitudes in an appropriate context.
Community surveys can be particularly helpful in civil cases where damage awards may be large or difficult to estimate. Given the variability typically associated with economic measures, a community survey can be a cost-efficient method of gathering estimates of damages from hundreds of jury-eligible individuals.
When the ability of a defendant to receive a fair trial in the trial venue is questioned, trial consultants can conduct community surveys to assess prejudice in that venue. And these results may be included in a motion for change of venue or change of venire. (Change-of-venue/venire motions are typically submitted by the defense, but community surveys can also be conducted by the prosecution or the plaintiff in a case to counter data presented by the defense.) Prejudice against a party may result from various sources, including pretrial publicity, personal experience with the party, or community gossip and rumor. Generally, personal experience with the party and community gossip do not substantially influence prejudice in the venue unless the venue is very small or sparsely populated. Community surveys can then be designed to assess the content and amount of knowledge about the parties as well as preexisting beliefs about guilt or liability.
Focus Group and Trial Simulation Studies
Focus group studies and trial simulation studies allow for a more extensive presentation of trial evidence and arguments to a sample of jury-eligible individuals than community surveys do, but the higher costs associated with compensating individuals for their time and travel to some focus group or conference facility typically result in smaller samples being used in focus group and trial simulation studies. The methods and data analysis techniques generally used in focus group and trial simulation studies come from the fields of marketing, communications, and psychology (particularly small-group research). Trial simulation studies are sometimes based on the experimental method, with half the mock jurors being presented a particular factor (e.g., an argument, a piece of evidence, or a trial procedure) and the other half not being presented with the factor. The fact that the techniques used in focus group and trial simulation studies are grounded in the strong research methods of other fields may account for the lack of empirical examination of the effectiveness of these trial-consulting techniques.
Another service commonly provided by trial consultants is witness preparation, whether it is preparation for depositions or trial testimony. Based on the findings of research in the fields of communications and psychology on topics such as persuasion, physical attractiveness, deception detection, and communicator expertise, trial consultants can provide feedback and guidance on the verbal and nonverbal behavior of potential witnesses. In addition, trial consultants can conduct case-specific research involving the presentation of particular witness testimony, or different versions of the witness testimony, to a sample of individuals and then gathering data on their perceptions of the witness.
Based on empirical research on models of juror decision making, information processing (including the topics of attention, encoding, and recall), and visual perception, trial consultants can assist attorneys in the preparation of demonstrative exhibits and animations to be presented during trial. In addition, trial consultants can present prepared exhibits or animations to a sample of jury-eligible individuals (in isolation or as part of a focus group or trial simulation study) and gather data on individuals’ perceptions of, reactions to, and memory for the materials.
Content Analysis of Media
When substantial pretrial publicity is associated with a case and attorneys believe that it may affect the defendant’s ability to receive a fair trial, trial consultants can assess the amount and content of the publicity. This information can then be included in a motion for change of venue or change of venire. (As with community attitude surveys, this service can also be provided to prosecuting or plaintiff attorneys who seek to oppose such a motion.) Both print (i.e., newspapers and Internet publications) and visual (e.g., news stories or clips appearing on the TV evening news) media can be analyzed. The information gathered from the print media can be quite extensive, including the source of the information and the possible bias of the source (e.g., someone who is likely to be perceived as pro-prosecution, someone who is likely to be perceived as pro-defense, or someone who is likely to be perceived as neutral), the nature of the information (including whether it is likely to be deemed inadmissible at trial), the total length of the story, the prominence of the information (e.g., Did it appear on the front page of the newspaper? What was the size of the headline?), and the content of any photos or figures associated with the story. Information gathered from the visual media can include the content of the video, the length of the video, the time and day(s) when the story was aired, and any commentary provided by the newscaster. Results from media content analyses can be combined with results from community attitude surveys to argue that the prejudice in the venue has resulted from the existing pretrial publicity and that alternative venues in which pretrial publicity has not occurred need to be sought.
The main service that trial consultants can provide during the actual trial (as compared with before the trial) is “shadow juries.” This consists of recruiting a small group of jury-eligible individuals to sit in the courtroom throughout the trial and act as if they were actual jurors in the case. At the end of each day, the trial consultant meets with the shadow jurors to discuss what has been presented at trial that day as well as to date and to gather their perceptions of the strength of each side’s case and their reactions to particular witnesses, evidence, exhibits, attorney tactics and presentation styles, and anything else of interest to the trial team. This information is then provided to the trial team before trial recommences the next day, which allows them to adjust trial strategy based on the feedback.
Post-trial Juror interviews
To understand the ultimate verdict in a case, attorneys often desire to meet with jurors after trial and talk with them about the case and the jury deliberation. This information can provide attorneys feedback on the effectiveness and accuracy of their jury selection techniques as well as the influence of particular arguments or evidence; assist attorneys with similar, pending cases; and serve as a general educational tool. Trial consultants can assist attorneys in developing interview protocols, or they can carry out the actual interviews. Systematic interviews of individual jurors are likely to produce the most complete and reliable data. Obtaining permission from the court to interview jurors and informing jurors about the limits of confidentiality and the use of the data are essential.
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- The American Society of Trial Consultants: http://www.astcweb.org/