By Laurie R. Kuslansky, Ph.D.
1. Anyone can call himself or herself a “jury consultant.”
There are two basic types of jury consultant: those with appropriate credentials . . . and everyone else. Those with appropriate credentials have a background in a relevant field, such as psychology, sociology, or the law, with the training, skills and knowledge to provide bona fide and reliable data collection and interpretation. This includes knowledge and respect for appropriate research design, statistics, and individual and group decision-making. It also includes a working knowledge of the law and legal procedure. However, since ours is an unregulated profession, anyone can and does tout himself or herself as a jury consultant. But knowing the law alone is insufficient to interpret human behavior professionally. And knowing psychiatry alone does little to assist with legal decision-making. Case in point: then D.A. Gil Garcetti relied on his neighbor, a psychiatrist, on the O.J. Simpson criminal trial, instead of turning to the legitimate jury consultants at his disposal . . . and we know how that worked out in the end.
A good jury consultant not only has the appropriate training, but also has the ability to use both art and science to make a significant contribution to a trial team. Although there are organizations, such as the ASTC (American Society of Trial Consultants) with practice guidelines and membership requirements, they have no enforcement teeth, and no licensing authority exists for jury consulting, other than groups such as the American Psychological Association that can qualify their specialists.
As a result, we in the jury consulting field have encountered a colorful array of individuals who lack some or all of the credentials desirable in a jury consultant. Some may lack sophistication in research design; others may rely excessively on qualitative, small-group testing to overgeneralize; still others may be ignorant of the psychological and cognitive bases for perceiving and processing information or of the factors that drive verdicts. Some even come from utterly unrelated backgrounds such as jewelry design or acting. Yet they all call themselves “jury consultants.”
Verdict: Buyer beware. Make sure to vet the credentials of your jury consultant and make sure he or she holds the requisite background to assist in what you need. You don’t go to a dentist for a back problem, so don’t use a communications consultant for psychological insights.
2. Fame is a game.
There are jury consultants who have garnered significant media attention, but they aren’t the best ones out there. In fact, one should question the motives of someone who serves a client in litigation and seeks the limelight rather than holds discretion at a higher premium. In fact, some of the best jury consultants have rarely or never had publicity – to the benefit of their clients and of their professional integrity.
Verdict: Seek out a jury consultant with the goods and a good name, not tip-of-the-tongue media hounds.
3. It’s a small world.
In the beginning, there were very few pioneers in jury consulting, and they all knew one another. As the field expanded over the past 30-40 years, the profession has spawned numerous individual practitioners, small boutiques and larger, national firms. However, throughout this expansion, most experienced jury consultants either know one another or know of one another and probably know everyone’s true worth – or lack thereof -- but are loath, outside exchanges with colleagues, to reveal it. They hold a wealth of knowledge about the field and competitors, but it is seen as bad sportsmanship to disclose negative opinions, even though such opinions may be widely held within the profession and well founded.
How do you tell a prospective client that the person they are considering merely echoes what the attorneys say, rather than providing something of value? Or that someone well known does bad research? Or that a company merely retreads old findings? Or that someone is actually crazy?
Verdict: You don’t.
4. Some tell you what you want to hear vs. what you need to hear.
Jury consulting is not only a profession, it’s also a business. To that end, some counsel – especially newer users of the field – are highly resistant to hearing about any doubt or trouble with their case, even if that is the best value they may gain from a jury consultant. As a result, to avoid losing a client, many jury consultants sugar-coat at best, or at worst conceal, the bad news, mirroring what the client wants to hear rather than delivering critical information.
Verdict: If you only want to hear what you already think, don’t pay someone else to say it.
5. We usually know what won’t work, but if you make us do it anyway, we’ll let you do it.
An experienced jury consultant has plenty of experience watching failed approaches, such as purely scientific presentations with no story, presentations that are cognitive overloads or too long, “tutorials” that are too complex, avoidance of difficult issues, uninformed jury-selection approaches without data to support them, endorsement of an “expert witness” who is clueless about connecting with lay people, and the like. We have also often heard attorneys say, “In order to win this case, the jury must X.” It is rarely supported by the data. In these situations, if the attorneys are rigid in their thinking and not truly open to the input of a solid jury consultant, either the consultant quits (unlikely) or the consultant capitulates to the client, to the client’s disadvantage. It takes someone bold enough to face the risk of losing a client to insist on telling the truth.
Verdict: If you hired a good jury consultant, talk less and listen more.
6. We often know what will work, but you won’t try it, thinking “If it isn’t perfect, it isn’t good.”
Some litigators have a difficult time embracing new ways of seeing their case once they’ve formed their own opinions about it. New themes proposed by a skilled jury consultant may largely fit the evidence, even if not all of it, but when some points don’t, counsel may dismiss the otherwise appealing theme entirely, rather than trying to find ways to make it fit by slightly modifying the theme or revisiting the evidence to support the theme. If a good jury consultant has proposed a theme, the consultant likely has good enough reason to do so, based on an assessment of the evidence and experience with juries. Remember, most litigators have gone to trial far fewer times than most experienced jury consultants. It is only after investing many thousands of dollars that counsel discovers what the consultant suggested in the first place is true. Jurors are far less likely than the lawyers to scrutinize all the facts and all the evidence and all the legal implications at the level that the lawyers do, so they are not as likely to reject broader-sweeping themes that are appealing and largely account for the evidence more simply.
Verdict: Try more, spend less.
Other helpful resources related to jury consulting and trial consulting on A2L's site include:
- 10 Things Every Mock Jury Ever Has Said
- 12 Great Tips for Great Mock Trials in Your Venue
- 13 Changes Coming to Jury & Trial Consulting
- How to Prep a Witness
- A2L Consulting Voted #1 Jury Consultants by the readers of LegalTimes