OTLA Trial Lawyer Fall 2020

34 Trial Lawyer • Fall 2020 Jury Consultant Continued from p 32 Testing your case Here is how these unaware cognitive biases can play out in litigation. A mock trial or focus group is a tool consultants use to discern bias and prejudice pre- sented by each type of potential juror. A “split” mock trial can be where a group is gathered and given all the case details. Then the group is split into two smaller or sub-groups where both these sub- groups deliberate independently. This allows us the ability to study why out- comes may differ. If the case is ready for trial, both groups’ results should be very similar. We conducted split mock trials in two different cases where the results were shockingly far apart but shared one common fact. In both cases, the group that learned the plaintiff ’s family was from India delivered substantially lower verdicts. I mean not even in the same ballpark. These jurors were so unaware of their own bias that even when pre- sented with the variable and differing results, they could not identify racial prejudice as a potential factor in the radical outcomes. The above experiment is an excellent indicator of how a jury will likely respond in the actual trial. Armed with informa- tion, your consultant can help you develop a jury strategy to screen potential jurors that favor individuals who look more like themselves. It can be especially tricky to ascertain individuals’ accurate perceptions with a simple direct question “raise your hand if you are racist.” In light of this, it is all the more important to use all available resources to remove potential jurors with unconscious prejudice. Even if a preju- diced juror can’t be removed, by openly addressing the potential of racial bias, you educate jurors to watch out for this obstacle, so they can consciously choose on which side to step. Jury consultant or trial consultant So, what exactly is a jury consultant? Are jury consultants also trial consul- tants? Well, not necessarily. While a jury consultant can also be a trial consultant, the two types are not always mutually exclusive. However, it should be noted that it can be particularly helpful when the firm or individual that you are engag- ing with is both a jury consultant and a trial consultant. Here is a short breakdown of each position. A jury consultant will assist you in your jury selection process even before the jury walks into the courtroom via research. This is done to determine which jurors may be harmful to a fair hearing of your client’s case. In addition, some jury consultants are also available to assist you in the courtroom during the juror selection process by providing guidance and observations throughout the selec- tion process. Whereas trial consultants are available to help you frame your case and answers to essential questions such as: What are your most persuasive arguments? What is your most compelling evidence? Who is your best witness? Some trial consul- tants are also available for your jury selec- tion as well as post-verdict juror analysis. Why, after the trial? Why collect and review the opinions of jurors after the case? The fact is there is an immense amount of highly valuable information left behind in the deliberation room after the verdict has been read. It is that infor- mation that allows you the opportunity to learn about how best to improve your performance as a lawyer. Having your consultant speak with the jurors after the case gives you access to the most effective tool you have available to perfect your skills. This process will ultimately allow you to discover mistakes you may have made and enable you to refine your per- formance for future trials. When should you engage a jury con- sultant? As early as possible. Early en- gagement is crucial and can directly correlate to the depth of analysis. The amount of time a consultant has to un- derstand your case and conduct research will determine the amount of informa- tion you will have available at your dis- posal for the jury selection process. In addition, the earlier you can establish a connection with your jury consultant, the better prepared the consultant will be regarding your specific case needs. Pertinent inquiries concerning when you may be going to trial, the jury consul- tant’s availability and any other specific requirements will help enable you to be better prepared for your client’s upcom- ing case. In most cases, the service cost is usu- ally the same regardless of when you decide to hire a jury consultant. The benefit of doing so early is in the data collected by a jury consultant. When a consultant is engaged sooner rather than later, the bottom line is it will always benefit you, across the board, giving you and your client the advantage. Factors to consider In selecting the right jury consultant, there are a few particular considerations to reflect upon. The first of which is the jurisdictional rules. Every judge and ju- risdiction are unique. Being well in- formed of these specifics is essential to selecting the proper jury consultant. These factors will determine the amount of time that will be available for prepara- tion before jury selection. Additional crucial details will need to be made avail- able to the juror consultant as quickly as possible. Such as when will you be receiv- ing your list of potential jurors? Will you be receiving that list the morning of trial or two days ahead of time? How many potential jurors will be on that list? Are you allowed to have questionnaires sent out beforehand? How long will you have for jury selection or voir dire ? The answers to those questions will be a sig- nificant determining factor to the depth or brevity of the available information on potential jurors and the development of your trial strategy. The selection of the right jury con- sultant to fit with the rest of your trial