Trial Consultants, Inc. 1463 NW 104th Drive Gainesville, FL 32606 Tel: (954) 530-8231 Fax: (954) 337-0527

Articles Table of Contents

A version of this article first appeared in The Journalof Legal Nurse Consulting.

Trial Consulting:

A Much in Demand, Highly Effective, and Nicely Profitable
Professional Sub-Specialty for Legal Nurse Consultants

by Amy Singer, Ph.D.

Author Credentials

Amy Singer, Ph.D., is a nationally recognized authority concerning litigation psychology, a field she helped pioneer, and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. Dr. Singer is the founder and president of The Singer Companies, headquartered in Miami and with offices across the country. The Singer Companies is comprised of Trial Consultants, Inc.^®, (jury research and trial preparation); Litigation Consultants, Inc. (case strategic planning and mapping); Trial Communications, Inc. (providing attorneys with specialized services such as "1-800-A JURY DR" and "Dial-a-Jury Reaction"), Port-O-Court, Inc. (the world's only fully equipped floating mock courtroom), and The Institute for Settlement Sciences, Inc. (settlement intelligence services). Dr. Singer is now organizing the National Institute for Trial Consulting, the nation's first school to educate, train, and certify trial consultants. The National Institute for Trial Consulting will offer students certification programs in four professional specialty areas: Jury Selection, Witness preparations, Facilitation (organizing and leading jury focus groups and jury simulations), and Simultaneous Jury Research - In-Court Assessment & Strategy. The National Institute for Trial Consulting will be organized as an alternative educational delivery system, which means that students will be able to establish their own individual learning goals, conduct much of their study at home, and work largely at their own pace. (Brief descriptions of many of the school's courses are listed in the "Specific professional knowledge and skills required" section of the article which follows.) Those interested in learning more concerning the National Institute for Trial Consulting, its courses and costs, and related information should contact Trial Consultants, Inc. 1463 NW 104th Drive, Gainesville, FL 32606. Phones: (954) 530-8231 Fax: (954) 337-0527. E-Mail: JuryDoctor@aol.com.

Trial Consulting:

A Much in Demand, Highly Effective, and Nicely Profitable

Professional Sub-Specialty for Legal Nurse Consultants

by Amy Singer, Ph.D.

Though a relatively new profession, legal nurse consulting has already achieved a highly positive impact vis-a-vis our nation's justice system, helping, both in court and out, to illuminate and clarify vital issues in medical malpractice, personal injury, and similar cases. Another relatively new profession also has had an equally positive impact on the justice system - trial consulting. This new legal discipline is comprised of professionals who assist attorneys in developing the most intelligent and effective trial strategies to win their cases. Trial consultants are jury experts, and a significant portion of what they do concerns advising attorneys on how best to determine, then eliminate, biased jurors during voir dire, thus promoting fairer trials for all.

Legal nurse consulting and trial consulting: numerous similarities

The professions of legal nurse consulting and trial consulting are alike in many ways. For example, legal nurse consultants evaluate and analyze medical and related data and information, then render informed opinions on the delivery of health care and the subsequent outcomes - usually in the context of legal disputes which often are settled in court. Similarly, trial consultants evaluate, analyze, and interpret jurors' value beliefs, i.e., their internal dicta and personal codes, as they relate to specific case issues, determine what the jurors think and feel about the case, then render opinions regarding how the jurors are likely to determine the outcome of trial disputes.

Many other parallels exist between the two professions. For instance, the standards of practice for legal nurse consultants are based on the following nursing fundamentals: assessment, analysis and issue identification, planning, implementation, and evaluation. Trial consultants utilize these same valuable problem-solving techniques in their own work: assessment of the case particulars (facts, evidence, witness testimony, etc.); analysis and issue identification regarding what case issues the jurors will consider most important; planning the most effective jury selection and trial presentation strategy; implementation of that strategy in court; and evaluation, often on a day-to-day basis, concerning its effect on the jurors.

Strong interviewing skills essential to both fields

One key similarity that both legal nurse consulting and trial consulting share concerns the art (and it is most definitely an art) of interviewing. Great nurses are almost always great interviewers - they know how to ask the right questions, carefully listen to the answers provided, then evaluate what is most important. It is only through such educated and intelligent probing that the nurse can adequately determine the patient's current health. Of course legal nurse consultants regularly employ in their own practices the professional interviewing skills they originally developed as nurses. Along this line, trial consultants must also be great interviewers. Indeed, questioning jurors concerning the case's primary issues, carefully listening to the responses given, and then professionally evaluating and interpreting what has been said is a sine qua non of professional trial consulting.

Clearly, the fields of legal nurse consulting and trial consulting share an uncommon number of professional similarities; both depend on quality evaluation, interpretation and analysis; and both require many of the same basic interpersonal skills. For these and similar reasons, I believe that legal nurse consultants would also make excellent trial consultants.

Trial consulting as an added professional diversity for legal nurse consultants

Legal nurse consultants may wish to consider trial consulting as a valuable new professional diversity they can offer attorneys and others. Due to their superior knowledge, expertise, and experience concerning medical malpractice, personal injury, and similar cases, legal nurse consultants who offer trial consulting services would be starting with some distinct advantages over already established trial consulting professionals.

Would such a step, however, be practical for most legal nurse consultants? To best answer that question, let's first take a closer look at the field of trial consulting in general, then briefly discuss the personal characteristics and the required professional knowledge and skills that trial consultants should possess in order to perform effectively.

The profession of trial consulting

The use of trial consultants by attorneys to help them plan and win their cases has exploded in recent years. Trial consultants offer attorneys during voir dire a benefit of inestimable value: being able to "de-select" biased jurors with the absolute highest probable degree of certitude. (Ferreting out and eliminating biased jurors prior to trial is absolutely critical to courtroom success. Studies show that jurors are most influenced by personal biases, secondly by legally inadmissible information acquired during trial, and only third, by legally admissible evidence.) It is often stated that the case has already been won or lost by the time the last juror is impaneled. Therefore the professional capability of trial consultants to most accurately determine, and then eliminate, biased jurors offers a truly spectacular advantage to the attorney. (Such a huge advantage, according to many knowledgeable attorneys, that failure to employ a trial consultant in an important trial might almost be considered grounds for malpractice).

The profession of trial consulting has grown dramatically from the early '70s when only a few hardy trial consulting pioneers (of which I am very proud to be included) first began to assist attorneys with their cases. From these early days it is now estimated that over 300 professionals currently practice trial consulting on a regular basis, according to the American Society of Trial Consultants. And the field is expanding rapidly every day.

Trial consultants are drawn from a wide variety of professional fields, including such disciplines as psychology (and in particular, social psychology), sociology, therapeutic counseling, communications, and public relations. (Additionally, a not insubstantial number of trial consultants first began their careers as actors, actresses, and similar artists and performers.)

Focus groups and simulations: essential tools of trial consulting

Trial consultants utilize jury focus groups and jury simulations to help determine juror attitudes concerning the primary case issues prior to trial. Jury focus groups and jury simulations enable the attorney to test-market alternative trial strategies, trial themes, and so on, in order to determine what will work best during the trial. Such pre-trial research proceedings are similar to the product testing activities that companies conduct prior to bringing their products to market, or to the polling that political groups perform, or benefit from, before deciding to sponsor a particular candidate.

Jury focus groups and jury simulations spotlight jurors' cognitive processes. Basically they consist of shortened versions of an upcoming trial presented before a carefully selected sample of surrogate jurors. The jurors' deliberations are carefully noted, evaluated, and interpreted to determine jury attitudes concerning all of the key aspects of the case.

Surrogate juries normally are organized and administered in the venue where the trial will take place. This aids in recruiting surrogate jurors whose values and beliefs are opposition prone. Such negative jurors are far more likely to focus on, and thus clearly identify for the attorney, the case's basic problem areas. This is very useful because it is the case's problem areas that create the most trouble. When the attorney learns what these problem areas are, then he or she will be in the best position to plan on how to handle them during the trial. The number of surrogate jurors generally will be the same as that of the actual jury.

In most cases, the jury simulations are repeated numerous times before different groups of surrogate juries (usually three to 10 times). As in any other scientific test, this repetition is essential to ensure the validity of the results. There are normally two different series of jury simulations conducted. The first series takes place usually about three months before trial or before discovery is complete. These simulations are set up to discover the issues of key importance for potential jurors, along with the best trial theme and case presentation strategy. The second series of jury simulations is performed directly before the trial is to commence. This second series of simulations helps determine how jurors will regard the facts and evidence of the case, as well as the arguments that have been developed, once discovery is complete.

Invaluable data for the attorney

When properly organized, administered, analyzed, and interpreted, jury focus groups and jury simulations can provide the attorney with a virtual cornucopia of highly singular and extremely valuable information. This can include how jurors will think and feel about the case; what types of jurors will regard the case facts positively and negatively; what prejudicial attitudes are likely to surface among certain jurors; what the jurors will consider the primary cases issues to be; what trial theme and presentation strategy will work best; what voir dire questions to ask to most reliably determine which jurors will be favorably or unfavorably disposed towards the case; what information jurors will be expecting to be presented during the trial (and even when that information should be presented to achieve the optimum effect); what areas of the case are likely to be misperceived by the jurors; what the case problem areas may be; what will be the assessment of damages; and what questions, if left unanswered, may fester away during deliberations and eventually end up poisoning the case.

Other trial consulting services

In addition to determining key trial issues and how specific types of jurors will relate to them, trial consultants also assist attorneys in many other valuables ways. These include, but are not limited to, planning, developing, and implementing change of venue studies (along with public opinion and attitude surveys); voir dire consultations; planning, developing, administering, and interpreting supplemental juror questionnaires; organizing witness preparations; and providing courtroom image consultations and make-overs.

Important personal characteristics

As already discussed, a trial consultant must be a good interviewer. Further, he or she should be a good judge of people so as to be able to form reliable opinions regarding whether a juror will be pro-plaintiff (prosecution) or pro-defense. Additionally, and most importantly, a trial consultant also needs to be a good psychologist. This means that he or she needs to be able to listen thoughtfully to what jurors have to say in order to determine what is truly most important to them, and what is not.

Numerous professional studies, plus my 17 years experience as a trial consultant, indicate that no other factor is as important in predicting how a juror will decide a case as are that person's value beliefs. (As discussed, people's value beliefs are the bedrock truths, principles, and internal codes they hold most basic to their own personalities.) In terms of court cases, value beliefs are often expressed through the use of such words and phrases as "should," "must," "ought to," or with such terms as "everyone..." or "anyone...." To illustrate, "doctors should...," "the patient could have...," "anyone knows that...," and so on.

Jurors' value beliefs shape the way they view the world and everything in it. This shaping process presents itself in the form of attitudes, i.e., the basic filters by which jurors weigh the

evidence during trials. Discover the core value beliefs, and you can determine attitudes. Determine attitudes and jury verdict behavior can also be projected. The jurors' value beliefs form the key to unlock the entire puzzle. But you need to have a good psychological sense in order to hear, evaluate, and interpret what is really being said when jurors speak.

Other personal traits that are useful in trial consulting include being able to facilitate a conversation (essential in conducting focus groups and jury simulations); being a strong and effective communicator (in order to detail to the attorney, in the most convincing and credible fashion, the results of jury research); being warm, open, and engaging (important in all aspects of trial consulting, but particularly during jury research and preparing witnesses); being able to work well with others, and so on.

Specific professional knowledge and skills required

In addition to the personal characteristics already listed, there also is a substantial body of professional knowledge, along with numerous professional skills, that the trial consultant must possess in order to be able to perform credibly. Legal nurse consultants who wish to provide professional trial consulting services to attorneys and others will need to be educated, at least to an initial degree, in a number of key areas. The following list of professional courses represents the essential trial consulting curriculum, i.e., the basic subjects legal nurse consultants will need to master to work as trial consultants. Each course is highlighted according to selected key topics:

• Social Psychology - Understanding social phenomena and their impact on the individual and groups; identification of the social and psychological variables that give human behavior a predictable base; the social mediations of decision making; related topics.
• Litigation Psychology - Power advocacy and jury persuasion; decision making through jury focus groups and jury simulations; case analysis through jury research; neurolinguistic programming; related topics.
• Jury Psychology - Individual and group decision making, and factors affecting both; psychology of the "minds of jurors" and how the personality and value beliefs characteristics of jurors correlate with jury verdicts; jury attitudes and prejudices; post-verdict interviewing; related topics.
• Jury Deliberations - History, philosophy, psychology, interpretation, etc.; scientific studies regarding motivational factors affecting juror and jury decision making, etc.
• Jury Research (Focus Groups and Simulations) - Theories, methodologies, purposes, procedures, protocols, samplings, plus the organization and management of interrogative focus groups and jury simulations research vis-a-vis surrogate jurors; facilitation and group dynamics; development of analogies, metaphors trial themes, voir dire questions, etc.; discussion of the case's "pivotal point"; de-briefing jurors; strategic planning; database management; related topics.
• Voir Dire and Jury Selection - Discussion of the jury system; examination of variations of voir dire proceedings in federal, state, and local courts; classification of voir dire questions to distinguish juror profile information; correlation of value beliefs, life experiences, and personality and decision making processes during the deliberation proceedings; advising and assisting attorneys during voir dire; determining and "de-selecting" biased jurors through question design, juror responses, and non-verbal cues; related topics.
• Interviewing & Creative Problem Solving - Planning, organizing, and administering the interview for individuals and groups; evaluating and interpreting responses; the psychological dimensions of asking questions, etc.
• Research & Experimental Design - Developing scientifically valid jury research results, including such topics as collecting, grouping, and presenting data; measures of central tendency and variation, theoretical distribution, probability, hypothesis testing, estimation of parameters, regression, and correlation relative to sampling and survey research; related topics.
• Statistics - (In conjunction with research and experimental design) Collecting, classifying, and interpreting jury research findings and other related information; understanding, weighing, and properly characterizing jury research results, etc.
• In-court Assessment & Simultaneous Juries - Advanced training in behavioral sciences, inclusive of deception cues, body language and demeanor, etc.; organizing and administering simultaneous ("shadow") juries, the de-briefing of jurors; strategic planning; legal report writing; trial presentation critiques; planning and developing psychological recommendations for attorneys; related topics.
• Questionnaire/Survey Design - Planning, development, implementation and interpretation of supplemental juror questionnaires and public opinion polls.
• Database Planning, Development and Management - Planning and setting up databases in an organized, accessible, and accurate manner; organization of jury research findings for guidance and application in later trials and proceedings; development of business databases, etc.
• Communications - Developing interpersonal communication skills; elements of persuasion, argumentation, and debate; understanding and interpreting non-verbal communication; group discussion; oral interpretation; negotiation and settlement techniques; related topics.
• Witness preparations - Preparing lay and expert witnesses for deposition, mediation, and
• trial testimony; dynamics of direct and cross examination; plus, for the expert witness, forensic evidence, science, junk science, medical experts, etc.; and, for the lay witness, non-expert damage testimony and daily life reports; use of the video camera and related techniques; etc.
• Demonstrative Evidence & Aids - Evidence presentation and support for such items as "day in the life" films, print and video settlement brochures, courtroom graphics, and other visual evidence, etc.; understanding the basics of production techniques for computer animation, print, audio/visual, and other media; discussion of sensual modalities; etc.
• Administration - Basics of the business of trial consulting; marketing a professional practice; related topics.
• Law - Basic elements of criminal, tort, and commercial law; compensatory vs. punitive damages; rules of civil and criminal procedures, including admissibility of evidence, discovery proceedings, voir dire process, proof of evidence, liability and damages issues, jury instructions, etc.; jury system and the voir dire process; courtroom dynamics; related topics.
• Attorney & Courtroom Psychology & Critique - Role playing, demeanor, behavioral characteristics, personality, credibility, likability, etc.; dynamics of courtroom psychology; courtroom psychological strategies for civil attorneys and for criminal attorneys; communicating with attorneys on all case-related and trial consulting information and findings; trial theory selection; trial notebook development; related topics.
• Acting - Study and development of acting skills, concentrating on transmitting oral statements, ideas, opinions, and judgments in the most convincing and commanding fashion.

As the above course list indicates, there is obviously much to know, and to know how to do, for one to be able to perform as a professional trial consultant. In most cases, therefore, it will be advisable for legal nurse consultants to first consider specializing in a specific trial consulting area to start. These can be categorized as follows: Jury Selection, Facilitation (organizing and leading jury focus groups and jury simulations), Witness preparations, and Simultaneous Jury Research - In-Court Assessment & Strategy. Each specialty area is in current strong demand.

Trial consulting: in demand and profitable

Legal nurse consultants who decide to expand their practice areas by providing trial consulting services can be assured that there is a very strong market nationwide for their services among attorneys and others. Trial consultants almost always are now used on the larger cases ($750,000 or more); additionally, trial consultants now offer a wide variety of highly effective yet economical professional services, making trial consulting feasible for almost all trials.

In terms of profit potential, legal nurse consultants offering trial consulting services should be able to realize an attractive monetary return for their efforts. Trial consultants starting out generally charge from $250 - $1,000 per day for their professional services, with the top practitioners currently earning as much as $30,000 daily, or more.

Regarding the marketing of trial consulting services, the tried and true standards of developing a professional practice continue to apply - i.e., the importance of networking; writing articles and giving speeches; the power of "word of mouth" advertising; placing "tombstone" notices in targeted legal and trade journals; organizing direct mail efforts to clients and prospects, creating and sending out newsletters; and so on.

Additionally, legal nurse consultants are in the ideal position of being able to offer their newly developed trial consulting services to their current and past clients. And it is important to note that trial consulting services are in extremely high demand at present, a situation that can only be expected to continue to get even better as more attorneys turn to trial consulting to help them win their cases in court.

Recommending trial consultants to attorneys and others

Regardless of its attractive profit potential or similar inducements, many legal nurse consultants may nevertheless have no desire to perform as trial consultants themselves, or to otherwise offer, even in a very limited fashion, professional trial consulting services to attorneys and others. But legal nurse consultants who wish to provide the maximum degree of service to their firm and/or clients should, however, know when to recommend that the attorney or firm consider retaining a professional trial consultant, or alternatively, to request discrete trial consulting services. To perform this task most effectively, legal nurse consultants need to have some understanding of the fees associated with trial consulting.

Trial consulting's costs

Regarding the costs of specific professional trial consulting services, legal nurse consultants

must keep in mind that each case is different and that the required level of services will vary accordingly, thus affecting overall costs. With this thought in mind, the following pricing benchmarks, while broadly gauged, are provided to assist the legal nurse consultant who wants to intelligently recommend trial consulting services to attorneys and others: focus groups, $750 - $4,500; jury simulations, $2,500 - $4,500; witness preparations, $400 - $2,000 (daily); voir dire counseling, $500 - $2,500; simultaneous juries and in-court assessments, $2,000 (daily); and supplemental jury questionnaires, $500 - $750. Such negative jurors are far more likely to focus on, and thus clearly identify for the attorney, the case's basic problem areas. This is very useful because it is the case's problem areas that create the most trouble. When the attorney learns what these problem areas are, then he or she will be in the best position to plan on how to handle them during the trial. Additionally, various "mini"-case analyses, consisting of shortened focus groups, along with similar abbreviated trial consulting services, are available for $500 to $1,000 for smaller cases. And other effective yet economical professional trial consulting services also are available.

Immense benefits provided

Considering the high stakes, financial and otherwise, that are often associated with most litigation, it would seem prudent to retain a trial consultant for nearly all cases regardless of size. Trial consultants offer attorneys highly singular and extremely reliable intelligence concerning what jurors think and feel about the case, and how their deliberations are likely to unfold. Armed with such invaluable information, the attorney can strategically plan the case most effectively. And also most cost-efficiently. Indeed, trial consulting often significantly reduces the overall cost of conducting a trial, eliminating the need for much otherwise expensive case preparation time. The fact is that trial consulting is applicable for all but the very smallest of cases. Indeed, it is quite difficult to place a price on the following type of valuable information that trial consulting provides: being able to know precisely what jurors will consider to be most important about a particular case, what trial presentation strategy jurors will find most appealing, and how jurors will be most likely to weigh the case during deliberations.

It all comes down to the jury

For the attorney, the jury is everything. Trial consulting offers the attorney the most reliable information available regarding what the jury will think and feel about his or her case - uniquely valuable data available from no other source. The legal nurse consultant who is professionally equipped to offer trial consulting services, or is knowledgeable regarding the strategic recommendation and use of such services, will find himself or herself in constant positive demand by attorneys.

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