Expect Less From Your Jury Consultant

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Every once in awhile you see a "distrust" poll, ranking professions according to how much or how little people trust them. In the most recent Gallup Honesty/Ethics in Professions poll in December 2006, nurses ranked highest with 84% of respondents saying nurses' honesty and ethical standards were high or very high; car salesmen were lowest with 7%; and lawyers were down near the bottom at 18%. It's a good thing jury consultants weren't on the list. We might not have registered on the scale at all. My news feeds are always bringing fresh evidence that jury consulting is mistrusted and misunderstood.

"Wackier than anyone else in the room"

It's bad enough that much of the public thinks we're (to pick some adjectives from a 2006 "That's Outrageous" column in Reader's Digest) "cynical," "pricey," "super slick," "canny," "manipulative" people for whom "no tactic is off limits." A lot of lawyers don't think much of us either. Take Scott Greenfield at Simple Justice a few weeks ago:

I've used a jury consultant, which was one of the most expensive mistakes I've ever made. . . . They can be wackier than anyone else in the room, and bizarrely secure in their belief that they understand other people based on a few words and a couple of "deep" questions. It seems closer to voodoo than science, and it disturbs me that they suggest that they have an ability that belongs only Madame Zuwonga, the Mind Reader.

Where do people get the idea that jury consultants are pushy clairvoyants? From jury consultants themselves, it seems, or at least a few of them. The "Madame Zuwonga" rap makes more sense if "[l]eading practitioners of jury science 'boast that they can predict with greater than ninety percent certitude the outcomes of trials before the evidence has been heard,'" as the authors claim in "Ethical Issues In The Use Of Trial Consultants," in the winter 2006 issue of FDCC Quarterly. (The link is to the entire issue of the journal, and the quote is on p. 151 of the .pdf file. They cite a 1994 article I don't have access to.) My consultant made me do it As for pushiness, trial lawyers love to tell me stories of jury consultants who insisted on keeping the juror who turned out to be foreman in the worst verdict ever. Jenner & Block litigator John Mathias, in an excellent piece called "Eight Tips for Better Voir Dire" in the ABA Litigation Section's "Tips from the Trenches" and on Jenner's web site, feels the need to warn lawyers:

8. Don’t ask silly questions just to please a jury consultant.

Some jury consultants want to obtain data for quantification purposes even though questions designed to get this data during voir dire can cause unhappy side effects. For example, a trial lawyer defending an insurance company might ask prospective jurors to rank on a scale of 1 to 10 how much they trust their own insurance company, 10 being completely and 1 being not at all. Data from their answers can really help a jury consultant with mathematical rating computations, but it can also activate the fuse on a time bomb.

(They want you to ask risky voir dire questions so they have data for their database? I beg your pardon?) A Pocket-Sized Guide To Working With Jury Consultants I want to type it in all caps and bold type: these scary tales are not typical. The jury consultants I know — the ones I've met in practice and through the American Society of Trial Consultants' terrific organization — are responsible, thoughtful people who are trying to provide assistance, not magic tricks. How can you tell whether you've got a good one? Let me offer this short, incomplete but I think still helpful, checklist. What to expect from your jury consultant:

1. Insight. (In the best relationships, the consultant's advice will surprise you a little at the same time that it rings fully true.)
2. Constructive candor.
3. Respect for you, your client, and your team.

What not to expect from your jury consultant:

1. Magical powers of any kind.

What to run from as fast as you can:

1. Anyone who insists you do something your own intuition tells you is mistaken.
2. Anyone motivated by his or her own interests instead of your client's.
3. Anyone who claims he or she can guarantee any outcome.

Your way Mark Bennett at Defending People said it perfectly in one of his recent "Tao" posts:

Your way to try cases is always with you. You don't need anyone else to tell you how you should do things, but only to help you discover it. Some people might lay claim to "ways" of trying cases or "systems" or "methods". You can, they say, learn to win "their" way. While you can undoubtedly learn something from them (you can discover better ways to try cases from anyone and anything), it's not really their way they're teaching you; it existed before they did.

The best jury consultants help you discover your way. For more of Anne Reed's blogs visit Deliberations.