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A version of this article first appeared in Florida Bar News.

Trial Consulting for the Smaller Practitioner

You can choose margarine or the high-priced spread

by Dr. Amy Singer

More and more, trial consulting is becoming almost a given for high stakes court cases. Indeed, many lead attorneys in the larger court cases are reluctant to enter into a courtroom without the assistance of a trial consultant. A growing number of attorneys who regularly handle large cases have come to regard trial consulting as a vital litigation tool. Also, they know the other side will likely use a trial consultant, and they don't want to be (or appear to be) outgunned.

But what about the smaller cases? Does trial consulting offer true value for these cases in relation to its cost? Or is it rather an unnecessary elegance, as some smaller practitioners seem to feel?

To examine the question of trial consulting's value for the smaller practitioner, it is necessary to first understand what trial consulting is all about. In this regard, it will be helpful if we look briefly to the world of modern marketing.

No responsible company will introduce a product into the marketplace today without first doing extensive product research. Companies who fail to test their products before introduction do so at their peril. Everyone may want to drive a nice new car, but few want to drive an Edsel.

Product research is often conducted through focus groups and consumer panels. It's goal is to determine whether the members of the sample groups interviewed will be motivated to purchase the product as currently planned, and why (or why not).

Testing is done again and again until a consensus opinion clearly emerges: "Yes, we would purchase the product if it is configured thusly"; or "No, we would not purchase the product under any conceivable circumstances."

The logicality of this product research approach is obvious. Through testing, a solid determination is made that potential customers, as represented by the surrogate customers of the focus groups and panels, will purchase a particular product, if it is planned and designed according to a specific set of criteria.

Trial consulting determines what jurors are willing to "purchase"

Trial consulting parallels product research. But instead of focusing on how customers will respond to a particular product, trial consulting test markets how jurors will respond to a particular trial presentation strategy.

Trial consultants use jury focus groups and jury simulations to reliably determine how and why jurors will react to a particular trial theme, to an opening statement and closing argument, and to other key aspects of the case.

Such jury research can also clearly delineate what the jurors will consider to be the most essential attributes of the case (thus showing the attorney what evidence to stress), along with those case aspects the jurors will consider inconsequential.

Just as valuable, jury research can reliably determine what type of jurors should be seated for a particular case (often, with very surprising results for demographic-dependent attorneys). And it can even elucidate the specific voir dire questions the attorney should use to best determine who these ideal jurors are within the venire panel.

In addition to other benefits, trial consulting also is an excellent aid in overall settlement strategy, and in determining how much a case is worth.

True jury-validated findings

It's important to note that any voir dire and trial strategy recommendations the trial consultant develops will not be based on intuition and instincts. Rather, they will be (or should be) based on true jury-validated findings achieved through carefully controlled social science experiments using scientifically valid jury focus groups and jury simulations. Such findings offer the attorney the very best evidence available on how the jurors are predicted to react to the case he or she plans to present. Short of sitting in the jury room during deliberations, you can't get closer to the horse's mouth than that.

Clearly, such bona fide pre-trial test marketing of a case can be of inestimable value to the attorney. The unique advantages of trial consulting and jury research are applicable no matter how large or how small the case. Therefore, trial consulting must be considered a highly worthwhile litigation tool, not only for attorneys trying large cases, but also for the smaller practitioner.

What about costs?

When it comes to smaller cases, are the obviously singular benefits of trial consulting outweighed by its costs?[ ][1]

The attorney trying a small case cannot commission the same full-fledged jury simulations, jury focus groups, and shadow juries that are becoming de rigueur for the larger court cases. The economy of the case may simply not warrant such expense.

This does not mean the attorney is precluded from conducting any form of jury research. When handled professionally, such jury research can be organized and conducted very cost-effectively.

For example, a scaled-down jury "reaction" to arguments can be organized, administered, and evaluated for $300 per hour, depending on the case; similarly, mini-issue analyses can be conducted for as little as $300 per hour. While very economical, such jury research can provide an important amount of specific and highly reliable data concerning how jurors are likely to deliberate about the case.

The above-mentioned outlays are not out of line when considering the overall expense of litigation today. Indeed, the cost of such jury research should be looked at as a very prudent investment against the valuable returns provided.

Attorneys weighing costs should also consider that jury research makes for a far more efficient case preparation process. It is estimated that attorneys can save about five hours of preparation time for every one hour of jury research time.

Reading the jury in economy paperback edition

While reduced, the costs detailed above may still not be warranted for a particular case.[2] In this event, there are other less costly yet highly valuable trial consulting/jury research services the attorney can specify for even the smallest court cases. Often, they can be made available for as low as $500-$1,000, depending on the case. Following are just a few:

• "Mini"-focus groups - An economical alternative to standard jury focus groups, "mini"-focus groups can be very valuable in determining how jurors will react to the facts of the case, whether there are any case problems, and in planning discovery.
• Voir dire counseling - While voir dire is a vital trial element, it is more a psychological process than it is a legal one. Trial consultants formally trained in psychology can be extremely helpful in showing the attorney how to most effectively use voir dire to find and seat the jurors needed for a particular case.
• Supplemental juror questionnaires - Trial consultants are expert in the development and use of supplemental juror questionnaires. These help increase the likelihood of self disclosure and can provide a strong foundation to challenge for cause.

Trial consulting is still a relatively emerging field, and new services are being developed all the time. For example, our firm now offers an 800-number service, 1-800-A JURY DR, that attorneys can contact to quickly receive case-specific voir dire questions, along with trial theme and strategy recommendations for late-breaking trials. All information is derived from our automated data files of past court cases, and is accessed by our litigation psychology specialists through targeted key word searches.

Along this line, we have just introduced a special "DIAL-A-JURY-REACTION" service (1-305-892-0000) that attorneys can use to secure immediate jury reaction to vital aspects of their cases. We assemble defense-prone jurors for plaintiffs' attorneys on Thursdays, and plaintiff-prone jurors for defense attorneys on Tuesdays. This is a creative yet inexpensive way for the attorney to quickly learn if there are any important holes in the case that may have been overlooked.

"Do-it-yourself" jury research?

A word of caution: attorneys are advised against doing their own jury research. Attorneys need to understand that litigation research is a very technical field; that it employs scientific methods based on experimental design; and that its product is a psychological analysis and interpretation of systematically collected scientific data concerning probable jury responses to selected stimuli, for strategic planning and communications.

Litigation research, when done correctly, means far more than randomly organizing a group of people, seating them in a room, and then listening to them comment about the case. Any findings developed under these circumstances will likely have no statistical significance regarding how the actual jury may see things. To provide meaningful results, jury research can not be done on the fly.

Trial consulting shines a spotlight on the jury

For the attorney, all depends on the jury. He or she can try the greatest case in the world, provide stunning courtroom oratory, and cross-examine witnesses like Perry Mason. But if the jury rules against his or her client, all this means nothing. Therefore, any reliable benchmarks the attorney can develop to anticipate the jurors' attitudes concerning the case - and thus their deliberations - are extremely worthwhile. Trial consulting can provide such valuable benchmarks, and at reasonable costs for even the smallest of cases.

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[1] Various courts across the U.S. have ruled that trial consulting expenses can be recoverable. To the best of my knowledge, such rulings have been confined to high-profile criminal cases to date.

[2] How much should you spend on trial consulting for a particular case? A good rule of thumb is to plan to spend approximately 1/2 of 1 percent of what you hope to recover. Therefore, for a case worth $250,000, you should plan on trial consulting expenses of around $1,250, or risk exposure.