First, you educate your audience about your position (and make sure they understand it). Then you persuade them of its correctness. Then you ask them to consent to it. In his introduction to a biography of John Adams, historian Arthur M. Schlesinger, Jr., observed that “politics … is ultimately an educational process, an adventure in persuasion and consent.” The same could be said about trials. First education, then persuasion, then consent. Jonathan Leach, LLC, develops litigation strategies grounded in education research and in a practical understanding of what judges and juries need and expect from you, the presenter. A substantial part of our litigation consulting involves developing and testing alternative ways to explain the evidence. That’s because, in the end–behind the closed door of the jury room–we rely on jurors to explain to each other what they’ve learned in the courtroom. The better we teach them in the courtroom, the more confidently they will persuade each other in the jury room.
What Does a Jury Consultant Do?
A jury consultant (sometimes called a litigation consultant or trial consultant) is a trained professional who deals with the broad range of factors that can influence the outcome of a hearing, deposition, or trial. The attorney leads the team. He or she focuses on the law and the evidence. Meanwhile, the consultant addresses potentially influential factors that often lie outside the immediate focus of the trial team. These “extra-legal” factors may include the appearance or speech patterns of the client or other possible witnesses; the demographic characteristics of the jury pool; community attitudes in the venue where the trial is taking place; and so on. The consultant takes these factors into account as he helps the legal team develop a trial strategy. And the consultant is always mindful of the parallels between the courtroom and the classroom. In our court system, we ask the decision-makers to sit, listen, and learn before they take a “final exam” called a verdict form. That puts lawyers and witnesses in the role of teachers. It is up to them to deliver particular facts and a particular message to a particular audience.
Whom We Educate
Time after time, in case after case, the winning side is simply the one that does a better job of educating the jury. And it is the job of the jury consultant to help the attorneys and witnesses become the best teachers they can be. Often this means helping attorneys discover the simplest, most effective ways to communicate the evidence. We offer concrete, practical recommendations for opening statements, trial graphics, and closing argument. We enhance the trial team’s ability not just to tell, but to show and tell the jury what happened and why it matters. We take a similar approach in working with witnesses. We train witnesses to tell the truth and to tell it effectively: that is, in such a way that jurors can understand it and remember it. Sometimes that requires only minor adjustments. In some cases, the work is more complex.
Our Teaching Methods
The teaching methods we bring to bear on a given case are as diverse as the cases themselves. One case may call for a linear, sequential presentation of evidence, where a vivid timeline and a step-by-step, “once upon a time” approach are most effective. Another case may be better suited to a geographic or spatial approach, highlighting the relative physical locations (of vehicles, pipelines, road hazards, molecules, people, and so on). Sometimes, as in a patent case, what matters is the unique process or “recipe” that distinguishes one invention from another. The teaching method used depends on the circumstances of the case.
We recognize and respect the role that attorneys and witnesses must assume as teachers of the evidence. To support their efforts, we provide a number of different resources:
- Witness Preparation – Often the difference between a good witness and an outstanding one is the ability to communicate at a jury level. Much of our work with witnesses is designed to help witnesses set aside the jargon of their trade or profession and speak in a way that jurors understand. A great deal of self-discipline is required. And surprisingly often, witnesses become the trial team’s best teachers. Consultant-and-witness conversations have often triggered the flash of insight that became the foundation of a winning strategy.
- Trial Graphics – Countless studies of jury behavior show, overwhelmingly, that jurors are visual learners. Accordingly, as consultants we are constantly on the lookout for the most vivid and memorable way to get our clients’ point across. Words matter, but words alone are not nearly as powerful as words supported by just the right photo, bar chart, model, or illustration.
- Focus Groups – Focus groups tell us and our clients how actual jurors are likely to talk about and problem-solve the issues. We are keenly interested in the words they use. Those words, and the responses participants provide, contribute directly to the trial strategy. Just as importantly, focus groups can provide our clients with a snapshot of the potential settlement value of the case.
- Mock Trials – More formal than a focus group, and typically conducted closer to the trial date, a mock trial represents a full-dress rehearsal and a last opportunity to test case themes, graphics, and the overall strategy. It’s another important tool for understanding the best ways to teach the actual jury. As with a focus group, mock jurors’ comments and concerns can guide how the trial team presents the case a few weeks later. A mock trial can also provide especially useful insight into the potential settlement value of the case.
- Post-Verdict Research – By interviewing jurors after the verdict, we capture the impressions, insights, and opinions that guide our own work as consultants, and that can directly affect the course of future trials. Data gleaned from past cases enhance our ability to make strategic recommendations in future matters.
How We Have Perfected It
With more than 20 years of experience, we have been in a lot of courtrooms, from deep East Texas to southern Michigan to San Diego and Salt Lake City. And our experience is even more broad and diverse when it comes to cases that were resolved on the courthouse steps, so to speak. Many times our jury research facilitates robust and well-informed settlement talks. This experience, together with our understanding of the extraordinary demands placed on trial teams, enables us to offer useful, on-point advice.
How Can It Help Your Case?
A good case deserves a good plan. We get involved early, working to conceive and test a robust trial strategy. Once the team reaches consensus on the strategy, it becomes our job to implement that plan across a variety of fronts: through witnesses, trial graphics, targeted research, and recommendations for jury selection. Having helped to develop and refine the key messages to be delivered at trial, we make sure that the jury or other decision-maker gets those messages.
How Our Legal Background Comes Into Play
Unlike many in the consulting field, we know from legal training and experience what may and may not be accomplished in the courtroom. We take pride in providing real-world recommendations that attorneys can actually use.