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Friday, March 10, 2006

Trial Consultants

3/10/2006 01:00 AM
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Trial consultants becoming integral part of legal system
By Richard J. Crawford

If you read about a high-profile criminal trial or a big-dollar civil trial these days, you can be pretty sure that a trial-consulting firm is on the case. For example, former Enron executives Ken Lay and Jeff Skilling are fighting serious felony charges with the help of a consulting firm.

The reason for the presence of these consultants is that a jury trial is a legal event, but its dynamics also are influenced by human communication and psychology. Reaching out to and persuading a jury involves more than making a legal case; it also involves all the art and science of communication, attitude formation, decision-making and the psychology of human persuasion. Future lawyers study the law, while academic studies of the behavioral and social sciences happen on the other side of campus. As lawyers have increasingly seen the need for those skills, many professors from the social and behavioral sciences have left the campus to become trial consultants.

As trial consultants have proliferated over the past two decades, they've also expanded the kinds of services they offer. For instance, months in advance of a major jury trial, these consultants are setting up focus groups and conducting mock trials to test potential arguments on both sides. Mock jurors are asked to deliberate while being videotaped after they've heard the case argued in a shortened version. The consultants then analyze the video and offer advice on how to better argue and structure their side of the case.

It's simply a fact that the lawyer who does not learn from this kind of research or waits to argue his case for the first time in front of the actual jury is at a serious disadvantage. Like everything else, hard work and preparation pay off, and getting good advice from the non-legal side of a case is important as part of trial preparation.

Additionally, during the months before a trial, consultants are also trying to learn which kinds of jurors need to be challenged when actual jury selection starts. It is interesting to note that the jury seated for Lay and Skilling includes some pretty sophisticated financial types, but you can be sure that their trial consultants thought about that kind of juror during mock trial testing and through other research.

Actually, jury selection was the main focus when trial consultants first started getting involved with trials, but today consultants are a part of the planning for a trial, including writing trial speeches, preparation of witnesses, design of graphics and more.

Money isn't necessarily the major factor when determining the use of trial consultants. Both sides in major civil cases often have roughly similar resources and it's not usually lack of money that causes one side or the other to skip the use of consultants. In criminal cases, both prosecutors and public defenders have budgets that allow them to hire expert witnesses and other kinds of professionals, including trial consultants. Of course, there are fiscal restraints on government lawyers, and well-heeled defendants can outspend their opponents. Admittedly, it is a little troubling to most of us to think that money can influence the outcome of something so sacred as a jury trial. Yes, rich defendants have the advantage here, but it is not so pervasive as it appears on the surface.

Finally, we should remember that the facts and evidence that are a part of any case remain of primary importance when it comes to determining the outcome of any jury trial. Great trial lawyers who surround themselves with the best advice available and who work hard in preparation win more cases than those who don't. Throughout our history and long before trial consultants existed, our adversary system meant that outstanding lawyers won more cases than their less-skilled counterparts. The emergence of the modern trial consultant has not changed those fundamentals of the adversary system.

Richard J. Crawford is a former communications professor and past national president of the American Society of Trial Consultants. He's been a consultant in more than 400 trials.