A Brief History
The field of jury consultation had its birth in the political trials of the late ‘60s and early ‘70s. At the time, activists from a number of social science disciplines volunteered their expertise to defense counsel and found that their contributions often meant the difference between winning and losing.

The Harrisburg 7 trial provides an excellent example. In this case, which received a great deal of national media attention, Rev. Philip Berrigan and six co-defendants were accused of conspiring to commit a variety of felonies, including the kidnap of Henry Kissinger, who was then Secretary of State under Richard Nixon.

Volunteers assisting the defense conducted a community attitude survey, which found, to no one’s surprise, that a majority of Harrisburg, Pennsylvania citizens were convinced the defendants were guilty. The survey, however, was also instrumental in identifying favorable and unfavorable juror characteristics. It found that the ideal juror would be female, Democrat, have a strong belief in the presumption of innocence, have no religious preference, and be politically tolerant. The worst jurors were those having completely opposite characteristics.

Jury selection took three weeks, after which the prosecution put on 64 witnesses. Surprisingly, rather than present evidence, the defense chose to rest its case. They believed the prosecution had not proved their case and felt confident that the jurors, who were chosen according to the survey results, would come to the same conclusion, which they ultimately did.

As for jury selection, some of the early consultants experimented with such esoteric techniques as personology (the "science" of face reading), observation of body language and tendencies toward conforming to authority and societal norms. In one of the early Ford Pinto trials, for example, the jury consultant used personology and selected jurors based on the characteristics of their facial features, bone structure and musculature.

In recent years, however, jury consultants have dismissed such esoteric methods as ineffective and, instead, have developed an interdisciplinary method of systematic analysis that employs social science research, communications theory, and the psychological study of juror motivation and behavior.

Since the ‘70s, the services jury consultants provide have expanded from jury selection, surveys and venue studies to include focus groups and mock trials, sophisticated attitude polling, witness preparation, communication techniques and training, shadow juries and post-verdict interviews.

Many consultants also assist attorneys on enhancing the presentation and impact of opening statements and closing arguments, collaborate on preparing witnesses for deposition testimony, and work with litigation artists to produce courtroom graphics that persuade and foster retention.

Focus Groups
What an x-ray is to a surgeon or radar is to an airline pilot, a focus group is to a trial attorney. For years, major manufacturers, advertisers and even political campaigns have used focus groups to measure public reaction to their products before taking them to the marketplace.

In much the same way, trial attorneys are increasingly using focus groups to test-drive their trial strategies and gauge juror reaction to key witnesses. Focus groups are also used to find out what a case is worth and to obtain information that helps in deciding whether to settle or go to trial.

Although focus groups can be conducted in a variety of formats, they usually consist of eight to fourteen people chosen to approximate a typical jury in a particular trial venue. At the focus group, attorneys summarize evidence and argue the case from both sides, after which instructions are read and the jurors go into deliberations. These deliberations are observed by the attorneys and consultant and videotaped for future analysis.

After deliberations, participants are debriefed as to the rationale for their decisions and their reactions to any witnesses, live or on videotape, who testified. Most importantly, this phase provides the opportunity for the attorneys and consultant to talk at length with the jurors who voted against them to find out what they would need in terms of evidence, theme or argument to change their votes.

The results of a focus group should provide a trial attorney with a road map of his upcoming trial, including a diagnosis of case problems, identification of unanticipated juror concerns, and very often, their remedies¾ before going to trial.

A good example is a recent product liability case in which a worker lost three fingers when he inserted his hand into a machine he thought was turned off.

The plaintiff’s attorney had planned to argue that the manufacturer was liable because the machine had no red warning light to indicate that it was turned on or emergency shut-off switch on the side of the machine where the accident took place. The focus group found this argument unpersuasive because an emergency switch was located within arm’s reach and the machine made sufficient noise and movement to give notice to any reasonably alert person that it was running.

However, many of the participants believed the most persuasive liability arguments was the paucity of safety information in the instruction manual. Based on this information, which was confirmed by a second focus group conducted one week later, the plaintiff’s attorney adjusted his strategy and ultimately prevailed at trial.

Witness Preparation
Cases can be won or lost on the basis of witness testimony, since witnesses are the vehicles through which most evidence is presented to a jury. Witnesses who communicate poorly or who display anxiety, defensiveness or negative personality traits can undermine an otherwise strong case.

Why do jurors believe one witness over another? Our experience shows that since jurors are not experts or percipient witnesses, they make up their minds based on their perceptions of the witnesses and how they testify.

Jurors decide which witnesses to believe based on what we term a witness’s "aura of credibility," which breaks down into six components: self-confidence, relaxation, mastery of the material, communication skills, emblematic congruence and character trait projection.

The first four components are self-explanatory. "Emblematic congruence" is the image¾ conscious or unconscious¾ that comes to mind when we refer to specific occupations or types of people. For instance, when we say librarian, construction worker or academic, similar or universal images come to people’s minds. If a witness does not fit this universal image, his credibility diminishes.

"Character trait projection" refers to the primary trait or personality characteristics a witness must project to complement, enhance and reinforce his verbal testimony on the stand¾ for example, being alert, trustworthy, savvy or detail-oriented.

Each of the six components can be taught or enhanced by a skilled professional using short-term behavior modification, communication theory and video feedback techniques.

Take the recent bad faith case where teaching the key witness to project personal characteristics congruent with the content of his testimony made a big difference in the outcome of a trial. The key witness, a claims adjuster, was by nature passive, laid back and soft-spoken.

The dispute in question turned on whether the adjuster should have inspected the electrical wiring located three floors below the floor of an office building where a small office fire had occurred. The defense contended that the adjuster had no reason to inspect the wiring since the fire was contained to one office and had not traveled to the floors below.

In this particular case, the key characteristics the claims adjuster needed to project were his alertness and eye for detail. To be credible as a sharp investigator, he had to be articulate and project a sense of alertness, certainty and authority to the jury. Unfortunately, his laid-back personality style conveyed the opposite impression.

Working with the team of trial attorney and consultant, the claims adjuster learned his lessons well. At trial, he was alert, articulate and effective on the stand¾ which caused the plaintiff to cave in and settle the case for a much lower figure than he had originally planned.

Community Attitude Surveys
If a case involves inflammatory or divisive issues, has engendered media publicity, or involves a client well-known to the community, a community attitude survey can provide a tremendous amount of useful information. Attitude surveys are used to measure community sentiment and to identify how various segments of the community view a particular case. They also provide an opportunity to test several themes and theories, so attorneys can get a preview of community reaction to possible case strategies.

Each survey instrument is individually and case-specifically designed, and a random sample of at least 300 respondents are contacted by telephone. Trained observers gather demographic data, discuss case issues and present a brief synopsis of both sides. The respondents are then asked which story they most believed and which factors were most persuasive.

The results are fed into a computer, cross-tabulated and analyzed to determine how people think about different issues and to develop a list of favorable and unfavorable juror characteristics for later use in jury selection.

A community attitude survey played and important role in the outcome of former Arizona Governor Evan Mecham’s criminal trial for non-disclosure of campaign funds, which was held after his impeachment.

Since everyone knew it was unlikely that an all-Republican jury would be impaneled, it was imperative for defense counsel to be able to identify which types of Democrats would not be biased against the former governor.

A community attitude survey was conducted to measure reactions to adverse publicity, attitudes toward Mecham’s impeachment by the Arizona Senate, and feelings about the ex-governor himself. The results of the survey indicated that a very large percentage of male Democrats over the age of 55 would not be negatively inclined toward Mecham or affected by the tremendous amount of adverse publicity he received.

The jurors, selected according to the survey results, ultimately voted to acquit Mecham of all charges.

Pre-Trial Juror Questionnaires
The challenge of voir dire is getting to know each juror as intimately and thoroughly as possible in a very short time. In recent years many states have placed limitations on attorney-conducted voir dire, thus making it even more difficult for trial lawyers to obtain enough information to make intelligent use of their peremptory challenges. Pre-trial juror questionnaires, once infrequently used, are now gaining wide acceptance in courts throughout the nation. Many judges have been approving jury questionnaires because they expedite voir dire, therefore saving valuable time and money by eliminating the need to repeat the same questions to each prospective juror.

Additionally, experience indicates that pre-trial juror questionnaires produce significantly more honest responses than are obtained from oral voir dire alone. Peer pressure, the perception of the judge as an authority figure and the instinctive need to be accepted make perspective jurors less candid when sharing their personal views in open court than they are when answering questions in complete privacy.

This privacy is essential when probing sensitive or controversial issues¾ for example, any personal or family history with alcohol or drug abuse, attitude toward homosexuality, or experience with molestation or rape. Additionally, the responses are more honest because the perspective jurors cannot be influenced or contaminated by other people’s answers, as they are in open court.

Typical questionnaires cover all standard demographic areas¾ age, education, marital status, personal and occupational history, plus experiences and attitudes specific to a particular case. The completed questionnaires are evaluated and ranked, and specific issues are identified that need further exploration in oral voir dire.

Post-Verdict Interviews
Trial attorneys, whose professional credibility and reputations ultimately depend on their courtroom effectiveness, can benefit greatly from the results of post-verdict interviews.

Like any advertising or marketing campaign, courtroom results very often depend on how well the trial attorney is in tune with his audience. The post-trial interview is the best way to find out what each juror really thought about the performance and effectiveness of the attorneys, litigants and witnesses, as well as the case itself.

With the results of these interviews, trial attorneys can form general guidelines and "rules" on how juries function. This data can be applied to future case strategies and increase the effectiveness of how attorneys conduct every aspect of a trial¾ from voir dire, opening statement and persuasive use of graphics through order of witnesses, witness performance and closing argument.

During the interview, case-specific questions are asked along with other questions necessary to arrive at a comprehensive understanding of the jurors’ trial experience. The following questions are a sample of those included in every interview:

Why did you vote the way you did?

Which opening statement seemed more logical and convincing to you? Why?

Which side did the judge seem to favor? What made you feel this way?

Which attorney did you like best and least? Why?

What was the turning point in the case for you?

How were decisions reached in the jury room?

In summary, the use of sophisticated jury consulting techniques, now standard practice in major litigation, has changed the playing field in trial preparation. Given the stakes in large cases, trial attorneys these days can ill afford to walk into court vulnerable to an opponent who has gained a significant advantage from survey results, focus group insights and witness preparation aided by professionals skilled in communication and persuasion techniques. In short, like it or not, jury consultants have become an integral part of the modern trial team.

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