Are jury consultants worth your money?

Are jury consultants a wise investment? Where can you find one? How does the consulting process work?

These are a few of the questions that were recently addressed as part of a panel session during the Section of Antitrust Law spring meeting, “Jury Consultants in Antitrust Litigation: Value Added?” which featured lawyers who are familiar with the use of trial consultants, as well as two jury consultants themselves.

Using jury consultants began in criminal trials, but later expanded to litigation after a 1973 Psychology Today article on juror profiling sparked wider interest, said V. Hale Starr, a jury consultant and president of Starr Litigation Services, Inc. While profiling can be helpful, it is just one part of the trial strategy work of consultants. More than help to pick a jury, jury consultants may also conduct mock trials, identify trial themes and handle a number of other trial preparation tasks.

Drawing from an understanding of the basic American belief system, jury consultants can identify what words, themes and arguments will best resonate with jurors, helping lawyers develop appropriate messaging and strategy. According to Starr, five of the most important, effective words in message development are: “accountability,” “choice,” “protect,” “promise,” and “profit.”

Panelist Gerald Stein, O’Melveny and Myers LLP, demonstrated the importance of theme development by showing the contrasting ways a lawyer can conceptualize a case. For example, “the relentless and illegal pursuit of power,” may be re-stated to imply “ambition” and “success” by using words that convey a more positive spin.

Such work developing trial themes ideally involves collaboration. Stein stressed the importance of outside and in-house counsel working together, along with the jury consultant. He also suggested that key employees of the client’s business can be helpful in the process, as well.

Panelist Richard Hagstrom, Zelle Hoffman, highlighted the value of mock trials organized by jury consultants in assessing prospective witnesses. Consultants can help determine what a potential juror’s opinion of a witness is likely to be, leading to either further witness preparation or a decision not to use a potential witness at all.

Consultant Sarah Murray, social/cultural anthropologist at Trial Behavior Consulting, explained how professionals in her field are also invaluable during voir dire in identifying biased jurors. Murray encourages lawyers to ask the tough questions. “Don't worry about polluting the pool; worry about stepping in the dirt that you can't see,” emphasized Murray. For example, by asking a question about a potential juror's opinions on corporations, you're not going to make someone suddenly develop a bias toward being anti-corporate, however, you may find out whether you want to have this person on the jury.

One place to begin in your search for a trial consultant is the American Society of Trial Consultants. In addition to a searchable database for consultants by region of the country and by area of practice, there are links to helpful legal resource sites and links to federal and state court decisions.

Jeffrey A. LeVee, Jones Day, served as moderator of the session.

To view the Powerpoint presentation from the session, click here.

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