Getting the Best Value from Trial Consultants and Jury Research

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1 Zagnoli McE voy Foley L LC Experts in Litigation Communication Getting the Best Value from Trial Consultants and Jury Research Jo Ellen Livingston, Ph.D., George Hunter, Ph.D. Zagnoli McEvoy Foley LLC Why should you hire a person who is not a lawyer to help try your case? How can a panel of a few dozen laypeople help predict what an actual jury will do? If you are a successful lawyer, what does pretrial research bring to the table? When considering the value of jury research, these are burning questions for many lawyers today, and even more so for their clients who have to pay the bill for these services. The number of law firms and businesses sophisticated in the use of jury consulting services and pretrial research has grown steadily in the last decade. Still, many lawyers and executives are unfamiliar with the jury research process or have limited experience in this area. In order to optimize the benefit of jury research, attorneys should have a clear understanding of what consultants bring to the table and what can be accomplished with pretrial research. What a Trial Consultant Can Do Trial consultants (also sometimes referred to as jury consultants or litigation consultants) bring a different dimension to the trial preparation process that is otherwise not easily-accessible to the legal community. Just as attorneys are experts in the law, consultants are experts in the jury decision-making process; they have insight into how jurors form their opinions about cases and what impacts those opinions. The ultimate focus for a consultant is to help the trial team develop a persuasive communication strategy for the case. Drug and Medical Device Seminar May 10 11, 2007 San Francisco Marriott San Francisco, California NEW THIS YEAR... VENDOR EXHIBITS! Presented by DRI s Drug and Medical Device Committee Who Should Attend Pharmaceutical and medical device trial counsel In-house counsel Lawyers who represent physicians Risk managers and insurance claims representatives Public relations professionals Service providers to trial counsel Published in DRI Drug & Medical Device Seminar Course Materials (2007) Jo Ellen Livingston, Ph.D. George Hunter, Ph.D.

2 At the start of 2007, there were over 500 individuals listed as members of the American Society of Trial Consultants (ASTC). Most offer a variety of services in the field. Trial consultants acquire their expertise in a variety of disciplines including (but not limited to) psychology, communication studies, political science, sociology, and linguistics. There are even some skilled consultants who have training in acting and theatre. Given this wide range of experiences and credentials, trial consultants vary significantly in the way they conduct their research. However, all good consultants can synthesize case materials with their research tools to get an accurate read on the attitudes and beliefs of research participants. The diversity of backgrounds among consultants has opened the door for many subdisciplines within the field and allows for a great deal of creativity. The diversity among consultants has, however, also created an environment with considerable variability in the quality and type of products that different consultants provide. In selecting a trial consultant, attorneys should not only look at whether the individual s skills and training meet with their expectations, but whether the consultant also feels like a good fit with the trial team. When selecting a consultant from among the hundreds of candidates, look at the background and type of person you are hiring. Experience, discipline, and style are important considerations. Most importantly, you are looking for compatibility with the lead lawyer and the needs of the case. It is best to make the consultant a part of the team; therefore, it is important that you like them. On the other hand, resist the temptation to hire someone who thinks and acts too much like you. One of the goals for selecting a trial consultant should be finding someone who can add a different perspective to your team. A good consultant will be able to help the lawyer go places he or she has not gone before. As one of our clients recently said, Using a consultant caused me to break a habit do something that makes you feel insecure. A good consultant will be able to help the lawyer go places he or she has not gone before. Selecting the Right Consultant for Your Case When selecting a product or service, let the consultant make strong suggestions on the direction to be taken. Ask what services are needed and why. Ask what answers will be provided by what projects, and what the consultant believes is the best fit for your case. Because of the wide variety of services available, many lawyers don t know what types of research and consulting might be the most useful, so don t be embarrassed to ask. A skilled consultant will be able to provide clear guidance on what research tools can be best applied to a given case. What You Can Learn From Focus Groups/Mock Trials The major tools that trial consultants use in pretrial research are focus groups and mock trials. Focus groups typically involve consultants moderating a discussion of a case summary to mock jurors. Mock trials typically involve case presentations by attorneys and deliberations by mock jurors. While focus groups and mock trials can be structured in many ways, the value of any type of jury research is consistent to gain feedback from your decision makers. Practice makes perfect may be true, but practice with feedback is even better. Focus groups and mock trials reveal valuable information about jurors decision-making processes on your case. Knowing what facts the average person finds relevant in a complicated case makes the sometimes overwhelming amount of information available in a case more manageable. It 2

3 is eye-opening to see what can be left out and still make case facts work positively. What facts will jurors make up on their own to fill in the gaps in the story? What information do jurors need? How do they need it? Pretrial research helps answer these questions. Here are some of the areas where pretrial research can impact your case: Developing Case Themes Complex cases often involve thousands of pages of information, and trials may last weeks or even months. During this time, jurors are bombarded with information, and it is the task of the attorney to distill the case down into the most effective understandable themes as possible. These themes act as anchors that the jurors use to process the nearly overwhelming amount of information they are exposed to during trial. A good theme should be easily stated in less than 20 seconds, and will have the following qualities: Considers all the evidence good and bad. Has emotional (as well as factual) appeal. Is short and simple, much like a telegram. The theme can be incorporated in all parts of the trial (voir dire, opening, witnesses on direct and cross, closing). Helps jurors to answer the verdict form. Often, mock jurors will create their own stories about what the case is about, combining the evidence (the story that you ve provided) with their own individual and collective backgrounds and experience. These stories reflect how jurors think about the case, and these stories will often not mirror what the attorneys believed were the most important or convincing elements of the case. Some elements will be virtually ignored during deliberations, others may be exaggerated, and some may be practically invented by the jurors. Pretrial research can identify where jurors minds will go, giving attorneys and consultants inside information to help craft the most effective themes possible for the case. Witness Evaluation & Preparation Pretrial research can identify where jurors minds will go, giving attorneys and consultants inside information to help craft the most effective themes possible for the case. Despite having stellar credentials, does your expert witness communicate effectively and persuasively? If your witness does not have such stellar credentials, how relevant is that to the jury? Mock jurors will tell you how credible your witness is (or is not). Their candor will assist you and your witness in improving his/her appearance, demeanor, and delivery, all of which enhance credibility. Two elements of witness testimony, image and effectiveness, are especially important to test in the research. The Witness Image Every single witness will have an impact and leave an impression. Some, of course, will leave better impressions than others. Impression is the result of image, which is the combination of how one looks, how one moves, what is said and how. For example, when you watch a doctor talk, what is she communicating? Is she caring? Is she smart? Is she confident, and does she inspire confidence in others? For each witness, impression

4 management is critical, and you can either help manage that impression or you can ignore it and hope it works in your favor. Pretrial research helps you manage it. When managing a witness image, consultants look to mock jurors for help in answering four key questions: 1. What image does this witness currently have? 2. What image is the witness expected to have? 3. What image will hurt the case? 4. What image will help the case? The Witness Effectiveness in Helping the Jurors In post-trial interviews, jurors consistently describe a lack of interest in many witnesses and in what many of them had to say. Witnesses come and go during a trial and jurors are not always sure why some were even there. After the trial is over, many witnesses will be afterthoughts to jurors. The witnesses who stand out are the ones who teach jurors and help them make their decision. Those who best guide jurors through this process and teach them about the case will be those with the most persuasive impact. Focus groups and mock trials evaluate not only the effectiveness of witnesses, but also help identify language and concepts that mock jurors use, which can then be incorporated into witness testimony. The witnesses who stand out are the ones who teach jurors and help them make their decision. Evaluating Attorneys Skills In addition to working with witness images, pretrial research can help increase awareness of what image is being conveyed to jurors by the attorneys themselves. Most of us are actually fairly poor at knowing how we are seen by others. Research has demonstrated that people are only correct in knowing the image they project to others about half the time, and this inaccuracy extends to attorneys perceptions of themselves inside the courtroom. In fact, the individual attorney may be the least likely to know what his or her own image is. Everyone has habits and quirks, many of which we are almost entirely unaware. You may have had your own experience in finally learning about an unusual personal mannerism, but wondered why no one bothered to tell you sooner. Mock jurors give both the good news about the attorneys image and the bad. They can give feedback on how effectively the case was communicated through verbal and nonverbal behavior, how appropriate was the attorneys demeanor with witnesses, how effectively demonstrative evidence was used and insight into the rapport with the mock jurors themselves. If you have ever had the opportunity to talk to jurors after a trial, you have probably wished that you had known before how they would respond to you and your case. Research can alleviate some of the agony associated with 20/20 hindsight and help refine the image that you present to the judge and jury. Assessing Damages Are your expectations for settlement and/or damages reasonable? What is seen as greedy? What is an insult? In addition to debating the overall merits of the case, mock jurors will discuss potential damages. From pretrial research, you can learn what motivates jurors to award or withhold money, what language they use in talking about damages, and what

5 issues they apply to the damage question. Armed with this information, you can approach settlement negotiations or trial with a more confident idea of what the case is worth to a jury, and not just to your client. Jury Selection and Voir Dire If the size of the research is large enough, consultants will also use data collected from questionnaires to generate a juror profile, detailing which jurors are more likely to favor the defense, which tend to favor the plaintiff, and what issues are relevant to each side. Such a profile is helpful as a starting point for jury selection and voir dire, but it should not be regarded as the final word for the process. The problem with statistics and stereotypes is they often do not work when applied to small groups. Suppose, for example, that you learn 70% of single moms are tough on corporate crime. During voir dire, you are looking at a single mom. Is she of the 70% who is tough on corporations or the 30% who is pro-business? Frequently, by focusing on the stereotypes, some specific experience that is more relevant to the case may be overlooked. Statistically-derived profiles are a good starting point, but the fit for an individual juror to your case will always come down to that individual s experiences and worldview. So, it is essential to talk with jurors and learn more about them. Pretrial research can identify the topics that you must explore the most with jurors. The issues most relevant to the decision-making process in pretrial focus groups will be the areas you will want to explore in voir dire. We have all heard horror stories about the jury that arrived at its verdict based on anything but what the law requires or the evidence presented. This happens in focus groups and mock trials too, and the feedback you receive there will alert you to issues you may otherwise consider irrelevant to your case but are vital to explore in voir dire. Frequently, by focusing on the stereotypes, some specific experience that is more relevant to the case may be overlooked. Questions to Ask a Trial Consultant Once the decision has been made to bring a consultant onto the trial team and use pretrial research, you will need to identify the candidate who is the best fit for your case. Here are five questions that we recommend asking to identify the best consultant for the job. 1. Is your firm full service? In complex cases, it is advantageous to use a consulting firm that can handle many different facets of litigation. Look for firms that not only provide litigation consulting, but also have specialized graphics consultants and trial technology support. Using such a firm will allow a cohesive approach to your litigation-related consulting and support needs. 2. Are you a member of ASTC? The American Society of Trial Consultants is the professional organization that defines standards and practices for consultants across the country. Those consultants who are members of ASTC are committed to professional ethics and codes of conduct, and participate in ongoing education to keep their practices up-todate with the latest social-scientific research.... consultants who are members of ASTC are committed to professional ethics and codes of conduct,... 5

6 3. What is your success rate? This is actually a trick question. As a profession, trial consultants in ASTC have an ethical standard against declaring success rates. The problem with such boasts is they are typically impossible to verify, will include good losses such as a jury award that came in slightly better than the worst-case scenario, and will take credit for things outside the consultants control. When looking for a consultant, be watchful for those who brag too much. 4. What can you do to fit my budget? There is a wide variety of methods and tools used by consultants, and there is a considerable range in costs. Jury research can be as simple as a cost-conscious online survey, or it can be a multi-day mock trial that costs $100,000 or more. Consultants should work with you to design a study that will answer your most important questions within your budget range. An upfront agreement (such as a letter of engagement) that lays out the services to be provided and the costs associated with those services is recommended. 5. What will I get at the end of the project? All consultants should have advanced training in designing, conducting, and analyzing social-scientific research. Some, however, are more skilled at turning that analysis into meaningful solutions for your case that you can use. Look for consultants who will be able to turn the research results into clear case themes, recommendations for case strategy, and ideas for strengthening your case through visual demonstratives.

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