- Theodore O. Prosise Ph.D.
JURY CONSULTANTS OR LITIGATION CONSULTANTS? WHY NOT BOTH?
Several high profile criminal cases are currently underway in our country: that of Erath County trial of Eddie Routh, accused of murdering former Navy SEAL Chris Kyle and Chad Littlefield, the trial of Dzhokhar Tsarnaev, the accused Boston Marathon bomber, and the murder trial of former New England Patriot Aaron Hernandez, to name a few. With such talked about criminal trials underway, the news media has turned to trial and Jury Consultant Services to provide jury behavior consulting to inquire about juries, jury selection, and jury behavior in the sensationalized drama of much publicized criminal cases. And the trial consultants have responded appropriately; in the time afforded by sound bites, they have opined on the role of attitudes and opinions and trial team strategy.
But with this media focus, the reality of what trail consultants do daily is obscured. The lion’s share of trial or jury consulting is actually done on civil cases, such as complex commercial cases, intellectual property, product liability, employment/discrimination, trade secrets and breach of contract cases, to name a few.
These days, characterizing what we do as “trial” and “jury” consulting can be both correct and inaccurate. It is correct in the sense that we certainly are engaged regularly to assist in the strategy and implementation of successful jury selection strategy and tactics. It is correct in that we are engaged to assist in developing and crafting opening statements, trial graphics, and closing arguments, and even monitoring trial through shadow jury projects or by simply attending, observing, and providing fast feedback to trial teams on the dynamics of the courtroom content and drama daily.
But the label of “trial” or “jury” consultant is now too narrow of a depiction. Increasingly we are engaged in litigation consulting, with an eye and ear for the potential trial down the road. Increasingly jury consultants are becoming consultants throughout the litigation process, assisting clients in the development of case stories early on so that discovery is both efficient and directed toward the issues and themes that will resonate best with an eventual jury. The best way to settle well – even the best way to position a party for successful summary judgment – is to prepare for the jury trial from the start. Consultants regularly field mock trials and focus groups, sometimes very early in the litigation timeline and sometimes right before serious settlement efforts in order to assess risk and exposure. So while “trial” and “jury” consultants may be the conventional characterization, “litigation consultant” is probably more apropos these days.
Most litigation consultants are not in the public eye giving interviews. The ones who are do a great job representing their field, but most consultants work in the background – not because there is anything to hide, but simply because the trial or litigation team is out in front of the courthouse stairs while the litigation consultants, jury consultants, or trial consultants are part of the support team; they’re the infrastructure of the effort and not the public vanguard. Some consulting firms and practitioners explicitly avoid being publicly associated with trials for no other reason than their desire to avoid becoming a distraction and take attention off of the role of the lead litigators in the trial.
We are not Gene Hackmans from the outlandish portrayal of jury consultants in the 2003 movie, The Runaway Jury, an adaptation of the John Grisham thriller. We do not engage in high technology surveillance of jury pools and juries, manipulation of jury pools and panels, and we have yet to set up a high-tech war-room in a building adjacent to the courthouse. Most are expert, experienced, practiced professionals who serve a useful support role in the myriad elements of litigation.
At Tsongas, we specialize in advocacy consultation, persuasive messaging, and crafting communicative strategies throughout the litigation timeline. We assist in developing a messaging, both rhetorical and visual, for the bench and arbitration, or even settlement and mediation efforts. We excel in the design, execution, and interpretation of mock juries and focus groups, both to assess settlement value as well as to hone strategy for trial. Often times our work sets the stage for understanding which cases should be taken to trial and which cases to settle before the jury pool ever even enters the courtroom. In the end, we are litigation consultants and jury consultants, not one or the other.