Trial Consultants as Effective Litigation Tool

Attorneys who find themselves in need of additional insight and assistance during the jury selection process, they can hire a trial consultant. Trial consultants use different tools and studies to identify issues within the case that can be troublesome to the case, as well as analyze the jury pool, formulate voir dire questions, and make recommendations to attorneys on who to accept or reject from the jury pool based on body language or other factors. But how effective can a trial consultant be when it is so difficult to estimate how a potential juror will behave?

Essentially the jury selection process could be better titled as a jury “de-selection” process because attorneys from both sides can only eliminate jurors in hopes that the remaining jurors are the most neutral and unbiased. Trial consultants use social science and imperial research predict certain attitudes in particular jurors that would be adverse to one side (this can be done through strategic voir dire questions, custom questionnaires, and observing body language). Attorneys will use this information to strike those jurors from serving on the jury. This goes both ways. An ideal juror will likely also be stricken because opposing counsel will recognize the same attitudes and strike the juror. Ultimately, this process of elimination should leave the court with the most neutral jurors. This is an effective use to trial consultants to ensure that the remaining jurors will have less bias and be more willing to follow the law as required for the case at hand.

However, once a jury is selected, trial consultants can help the client “get the win” instead of searching for justice. Trial consultants use their expertise and analysis of research data or even a previous trial (if the case is being re-tried) to organize evidence and their arguments in a way that will have jurors focusing more heavily on certain aspects of the case that may not be as important but will have jurors favoring your client. For example, the Menendez brothers murder trial in which both both parents were murdered, ended with a hung jury. Jury members were split between having sympathy for the brothers due to their abusive parents, and others not buying the “abuse excuse.” In the second trial, trial consultants had the prosecution present evidence differently by showing the history of their mother’s relationship with her sons and how she played a “less salient” role in their abuse, and focusing on how their father was hardly a threat to two grown men. This focus made it very difficult for jurors to justify the murders.

It is possible to see trial consultants as tools to “get the win” but on the same coin, it can be argued that this is the role the attorney plays. The attorney chooses a trial strategy, focuses on areas and evidence in the case that is favorable to them and frames their argument in favor of their client. Trial consultants only help to achieve their same goal. Ultimately trial consultants using reliable research can be seen as an effective tool for trial advocacy, but does not necessarily indicate how a juror will behave individually.