Effective Use of Trial Consultants

I. Why I am a Firm Believer in Using a Good Trial Consultant.   

    In my opinion, there is one reason not to use a trial consultant in every case:  cost.  In today’s climate, that makes good sense.  In 1995, when I first hired a trial consultant (Jeri Kagel ) to help with a case I was defending for the Georgia Department of Transportation, she taught me that what is most important always follows the “but.”  For example, in the proverbial “Dear John” letter, “I love you, but I am leaving,” it is the phrase after the “but” that has the biggest impact. The same is true here.  Trial consultants can be expensive, but, a good trial consultant can make the difference between winning and losing or a significant difference in the damage award.  We pay experts, particularly medical experts, ridiculous sums of money, yet they rarely have the same impact on a case that an effective trial consultant does.  The reason is simple:  trial consultants make us all better: lawyers, clients, experts, lay witnesses and juries.   

    I have used a trial consultant in almost every phase of litigation, including:
•    Evaluation of my client;
•    Preparation of difficult witnesses for depositions – to teach them what the job of a deponent is and the tools and techniques to effectively do that job;
•    Creation of themes for trial;
•    Focus groups and mock trials to determine settlement value, gauge the effectiveness of my themes and witnesses, test the impact of certain evidence, obtain feedback on the impact of gruesome injuries, and even to get input on exhibits;
•    Preparation of clients and witnesses for testifying at trial – to teach them what the job of a trial witness is and to work with me and my witness together so that we function as a team during direct in a way that best resonates with jurors;
•    Input on my opening statement;
•    Voir Dire;
•    Jury profiles and selection; and
•    Post-verdict jury polling.

    For litigators to effectively use a trial consultant and get the most out of the relationship, I believe we have to get beyond our own egos and realize that we should use trial consultants just as we would other experts, with the understanding that lawyers do not know everything about the human elements at play in both the pre-trial and trial environments.  We must be open to the expertise of a trial consultant who is likely not a “Type A” personality and who has the time and training to understand the interpersonal and psycho-social aspects so important to putting together a compelling case that will influence settlement or resonate with lay jurors.

    Juliana Reno of Kutak Rock LLP in Omaha is less kind:   It looks to us- the lawyers on the street- like the barrier to hiring a trial consultant is money . . . . . Money only appears to be the problem.  The real problem is ignorance.  Lawyers are ignorant of the actual cost of hiring a trial consultant, of the range of services that a trial consultant can provide, and of the skills that an experienced consultant brings to the table.  Because lawyers do not have solid information about the real benefit of a trial consultant, lawyers have no motivation to find out the real cost of a consultant.  As a result, lawyers blithely assume that a consultant will fail the cost-benefit analysis. Juliana Reno, A Lawyer’s View of Trial Consulting, in HANDBOOK OF TRIAL CONSULTING 393 (Brian H. Bornstein and Richard L. Wiener eds., 2011).

    Whether it's ego, cost, or ignorance, lawyers need to overcome these hurdles to get the best results possible for our clients.

II.    What to Expect When Working With a Trial Consultant.
    Regardless of whether you are simply hiring a trial consultant to evaluate the believability of your client or to conduct a pretrial focus group, the relationship begins with a meeting.  You meet with the consultant to tell him/her about your case and what issue you would like them to address.  You might have also given them a copy of an accident report, a contract at issue, or a deposition.  For me, these meetings are painful. 

    Let me explain.  I have hired Jeri Kagel in several cases where I was defending the Georgia Department of Transportation and wanted to conduct a focus group to determine the impact that multiple prior accidents would have on the jury or whether plaintiff’s catastrophic injuries would distract the jury from liability issues.  In those cases, despite the fact that I had been living with the cases for years, I had attended every deposition, and believed that I was almost ready for trial, my consultant invariably asked me questions that I did not know the answer to and brought up issues I never considered.  Typically, my response was that the questions and issues she brought up were not important, and that after she reviewed the entire file, she would understand why.  Then, in the privacy of my own office, tail between my legs, I would realize that a jury might really be concerned about the issues raised by my trial consultant. I have been trying cases for close to 25 years, and have been working with Jeri Kagel for about 20, and this scenario played out in every single case we worked on together, regardless of how prepared I thought I was.  Why?  Because Jeri’s background in law and psychology allowed her to view my case and my client through a different lens.  Simply put, trial consultants bring a different skill set to the table.

    Perhaps most importantly, trial consultants understand the psychology of how jurors attribute blame.  In our business, in both criminal and civil cases, that is what we are asking people to do:  we ask jurors or judges to decide who or what to blame and to determine the degree of blameworthiness.  Consequently, we as attorneys need to learn what we can do to influence how jurors place blame.  Jeri Kagel addressed the topic of blame in a recent article entitled, “Attribution of Blame – The Psychology of Blame and Its Use in Trial Strategy.”  Kagel wrote:
When something bad happens, it is human nature to want to blame something, or more often, someone. Identifying a source for blame provides closure for past wrongs, gives a sense of present control, and often eases fear of future harm. . . .So the question is how can a trial attorney influence how jurors attribute blame? The answer lies in understanding the psychology of how blame is attributed. The psychological inquiry into attributing blame is amazingly rich and complex...  
One theory that is particularly useful to trial attorneys [is] Attribution Theory.  Attribution Theory suggests that people use two categories when determining the cause of an event: external causes and internal causes. External causes originate outside the actor. They are situational or environmental. Take for instance a car accident on an old road on a rainy day. The driver may fault external conditions, like standing water and low visibility, rather than his own driving. Internal causes come from within the actor. In the same car accident, for example, the injured party may fault the driver for choosing to drive too fast for conditions, or for not using his headlights despite the poor visibility. When people perceive an event to have an internal cause, they are likely to blame the actor rather than the environment.

Attribution Theory helps attorneys develop trial strategies such as which jurors to strike, how to structure the case, what evidence to present, and how to present it. A plaintiff’s attorney will often want to point to an internal cause so that jurors can blame the actor. Conversely, a defendant’s attorney will want to emphasize an external cause so that jurors blame the environment or situation rather than the actor.    

    With the understanding of the psychology of blame, good trial consultants can help us create strong themes for our cases and provide witnesses with the tools and techniques to communicate their part of the case story in ways that relate to, and engage, the jury.  In cases where you have limited budgets, difficult clients or witnesses, or in cases you know will never see the inside of a courtroom, trial consultants should be used to prepare your client and even experts for deposition. 

    I recognize that as seasoned litigators, we have taken and defended hundreds of depositions.  We can and do prepare our clients and witnesses for depositions every day.  I think I do it well and better than most.  But watch a good trial consultant prepare your client or witness for deposition, and you will never want to go it alone again.  I have watched Jeri transform people who are frightened, uneducated, arrogant, defensive, or even offensive into effective, compelling witnesses in ways I could not have alone.  The benefits of a strong deposition are incalculable:  plaintiffs can increase the settlement value of their cases and defendants can do the opposite. 

    In the rare case that reaches trial, if your budget allows, a consultant can assist with everything from themes, opening, witness preparation, voir dire, and jury profiling.  More often, however, cost is an issue, so depending on your case, you can make the difficult choice of where you will get the most bang for your buck.  Typically, I spend my money on theme development and witness preparation.

    Your trial consultant’s witness preparation should include:
•   Explaining the structure and dynamics of the trial so the witness understands the significance of their testimony;
•   Teaching strategies to "do the job of the witness" on both direct and cross examination, including how to handle the overbearing cross examiner while maintaining their focus on teaching the jury;
•   Infusing the witness’s testimony with storytelling tools and techniques to keep jurors engaged;
•   Working with the attorney to:
•   Prepare and organize direct examination;
•   Build a rapport between the lawyer and the witness;
•   Practice direct and cross examinations.

III.    What About Focus Groups and Mock Trials?
   The most realistic way to evaluate a case for trial -- or to determine its settlement value -- is to preview the case and observe the responses.  Traditionally, a focus group is an interactive research study where a consultant facilitates the presentation of information pertinent to the case and elicits responses from the participants.  In a mock trial, attorneys present both the plaintiff’s and defendant’s cases, then observe as the participants, or mock jury, deliberate.  Jeri Kagel has taken both pre-trial events -- the mock trial and the focus group -- and combined important aspects of each to create an effective hybrid:  a CasePreview.  The CasePreview offers attorneys and witnesses the opportunity for a "dress rehearsal.”  Attorneys have the opportunity to receive feedback on each aspect of the case -- not just on overall impressions at the end of the presentation.  Kagel’s approach can also be more cost effective, as it can allow for a shorter event. 

  The goals of each of these pre-trial events are similar, as each to some degree gives the trial team the opportunity to:
•    Discover differences in interpretations of case facts;
•    Assess the case's strengths and weaknesses;
•    Contrast and evaluate trial strategies and presentations;
•    Understand jurors' priorities, questions, and attitudes;
•    Determine witness and attorney appeal;
•    Clarify when and why jurors attribute blame;
•    Learn how jurors' perceptions translate into possible damage awards;
•    Ascertain settlement value.

  Each of these pretrial events provides an opportunity to present your case; then learn and analyze how jurors perceive the facts and react to the details you share with them.   I have done several such events with fabulous results.  In one case, after I presented opening statements for each side, the focus group participants met in facilitated groups.  I observed as they dissected my arguments, clearly not buying our story.  My trial team met and quickly decided to change our theme and to emphasize other facets of our defense as we proceeded through the day.  In the questionnaires and subsequent discussions, we could actually see the dramatic positive impact of the changes we made.  Sometimes, pretrial events yield smaller, but equally helpful information.  I was trying a death case in Athens on behalf of the Georgia DOT, and had prepared a very large exhibit to show the layout of the highway where the collision had occurred.  During the CasePreview, I folded the exhibit in half because it was difficult to handle, yet still allowed the jurors to see the area of impact.  When the participants gave us feedback, they told me that they were very familiar with the roadway and thought that by folding the exhibit during the course of the day, I was trying to hide an on-ramp which made the entire interchange very confusing.  That thought had never entered my mind and needless to say, I did not fold the exhibit at trial.

     Finally, pretrial events have taught me volumes about how to present damages.  As a defense lawyer, I face the dilemma of whether and how to confront the issue of plaintiffs’ serious, catastrophic injuries.  While it is tempting to opt out and just argue liability, I have learned how to confront the issue of damages head-on and have successfully obtained defense verdicts without alienating the jury.   You can use a pretrial event to test the issue of damages alone – it can be done in a half day or less and therefore less expensive to the client.

    IV. Conclusion
    Without sounding too much like an infomercial, I have highlighted just some of the ways I have successfully used a trial consultant.  There are other ways, too.  Do not let your ego or cost be a barrier.  You can order a la carte.  Like the old saying goes, try it, you’ll like it.

Contact Us
Contact Us