A Litigator’s Guide to Jury Consultants

By Noah Bolmer 

From pretrial research to post-trial analysis, jury consultants efficiently and effectively increase the client’s odds for a favorable verdict. Newer expert witnesses may need coaching to properly interact with jurors in a way that simultaneously maintains the gravitas of the courtroom, while remaining accessible and understandable to laypersons.  

What Do Jury Consultants Do? 

There is a common misconception that all lawyers receive sufficient training to understand and work with juries during law school, making jury consultants moot, but this could not be further from the truth. In fact, studies have shown that lawyers are no more likely to predict the proclivities of jurors than the general population. Jury consultants, on the other hand, bring a level of psychological expertise with training in human behavior and group dynamics that aid in jury selection and interaction. 

Another misconception about the process of jury consultants, according to Dr. Ellen Leggett, is that jury consultants are essentially ‘psychics’. In truth, gaining insight into juries requires solid research and psychology, not divination:  

I’m glad to report we have no crystal balls. At least none that I’m willing to admit to, and there may be other consultants who will say, “I consult my crystal ball all the time.” A good portion of intuition is involved. [. . .] We were offering the ability to see more clearly what the jury sees, thinks, feels, believes, and ultimately decides. We were going to use psychology and social science research to give credibility to what we reported about what jurors think, feel, and decide. We created the industry on the basis that social science has ways to look at what people might think about cases as jurors. [Then] we were going to inform lawyers so they could strategize better about how to communicate persuasively at trial and magnify what we consider to be just and right outcomes and decisions made by juries. They [could] use the information presented in the courtroom to make sound decisions as opposed to having what happens in the courtroom go over their head. [. . .] We wanted to be both advocates for jurors and provide strategic information for trial lawyers that would help them communicate more effectively. 

Should I Use a Jury Consultant? 

Typically, jury consultants are engaged in high-stakes actions involving potentially life-altering dispositions, or large sums of money. When a lot is on the line, jury consultants can provide attorneys with an added edge throughout the pre-trial process, and onward. That said, smaller actions do occasionally warrant jury consultants, when the client has the means. In more straightforward actions where less is at stake, attorneys may elect to forgo consultants, especially if they are experienced.   

While they are a significant expense, a good deal of research has revealed that consultants do indeed raise the odds of a friendly verdict. In Jury Consultant Stephanie Yarbrough’s article Jury Consultant – Friend or Foe of Justice, she navigates the calculus involved. The client’s ability to afford a consultant is, of course, the first hurdle. There are numerous points at which jury consultants might be brought in, and clients need to weigh the costs of a full engagement versus bringing in a consultant for a specific task, such as expert witness preparation, or voir dire.  

On larger trial teams, jury consultants can more efficiently moderate, and build consensus around strategy. With a significant amount of data-gathering through mock-trials, focus groups, jury polls, and other mechanisms, jury consultants build a framework upon which strategic decisions can be made.  

As more trials head to settlement, jury consultants give attorneys a stronger negotiating position. Informed by the results of mock-trials, focus groups, and community surveys, the trial team will have a more concrete idea of possible outcomes, and a more focused range of the stakes, financial or otherwise.  

A recent topic that attorneys should be aware of, is whether witnesses may be cross-examined on the topic of jury consultants. While not settled law, some courts may allow some amount of examination. Attorney Damian Capozzola recounts (1) a recent case (2,3) where an in limine motion left the door partially open: 

Another recent interesting twist on the consulting expert theme is Hynix Semiconductor Inc. v. Rambus (3). In that case, the defendant engaged in a practice that is becoming more and more common—having its witnesses work with jury consultants, ostensibly so that they would present better to a jury. Fearing the mischief that could arise with unfettered cross examination on the topic, Rambus, smartly, tried to head the problem off at the path by moving in limine to preclude any examination on the topic. The court tried to chart a middle path. Addressing the issue, the court noted “there is sparse case law on whether a court should permit cross examination regarding how a witness prepared his or her testimony.” While the court could see good reason for permitting such examination, showing how much a jury consultant enhanced a witness’s presentation could affect the weight the jury gave the testimony, the court was likewise concerned that such examination would tread on the attorney’s work product protection by revealing the mental impressions of counsel. 

Ultimately, the court ruled that a party would be permitted to ask whether a witness met with a consultant, how long they met and whether any portion of the testimony was practiced or rehearsed, but no more. Thus, this case stands for the proposition that in the subcategory of expert jury consultants, it is fair to say that they continue to receive some measure of protection from the courts, but the parameters are still being defined on a case-by-case basis. But what happens if your testifying expert is assisted by a jury consultant? The opinion gives no clear guidance, although it suggests, [. . .] that perhaps courts should be more willing to allow expanded examination when the issue involves jury consultants working with testifying experts (1).

Driven by Data 

A jury consultant is only as good as the information they base their recommendations upon. There are different types of jury consultants which run the gamut between quantitative and qualitative. Dr. Leggett recommends jury consultants that take a data-centric approach:  

I have been reliant on data; this is not armchair psychology for me. Thirty years later, there are many types of jury consultants in the country. A group of us are wedded to quantitative research, while others are more qualitative, and others are what I would call armchair. Not quite a crystal ball, but […] armchair [psychologists] opine without necessarily doing the kind of research that we’re discussing. We do mock trials, focus groups, and community attitudes surveys. We are generally looking for a way to sample the population in which a particular trial will take place, and then we extrapolate from the trial the most essential arguments on both sides. Present them in some format to the assembled members of the community and get their reactions. What are they confused about? What do they still want to know? What makes no sense to them? Where do they have beliefs contrary to what they’re hearing at trial? Those research projects have evolved. Many consultants will do things with one methodology or another. That’s one of the ways that we differentiate ourselves, I suppose, as service providers, but the case can dictate what kind of research the consultant will propose. Overall, we’re trying to provide some research to help the trial team focus on data. Sometimes people on the trial team have different opinions about what’s going to sell the jury. What’s going to be the strongest part of their case? By doing a project such as I’ve described, we can bring people together on the team because we’ve asked sample jurors and [developed] a way to build consensus on the team about what the strategy should be. That’s when it’s really exciting. 

In fact, it can take between tens and hundreds of sampled individuals depending upon the client’s needs, depending on statistical accuracy and area of inquiry, according to Stephanie Yarbrough:  

Sample sizes of less than ten participants are not advisable because the results obtained from such a small sample are not likely to accurately predict the outcome at trial. Moreover, such a small sample size is not statistically significant and is a waste of the client’s money. If the client merely wants to gain an understanding of how the jury is likely to perceive the case as a whole, then a small sample size consisting of approximately twenty people can produce an accurate result. Mock trials, focus groups, and community questionnaires should contain a sample size of approximately thirty-six people to be statistically representative of the likely conclusion of specific issues at trial. When the client demands in-depth and precise research, the sample size increases. For example, if the client wants a profile of potential defense-oriented jurors, as compared to potential plaintiff-oriented jurors, then a sample size of approximately 100 to 300 people is required.  

While different fact patterns and methodological differences will change the type and quantity of data sought, attorneys should understand the rigor necessary to provide client value. Working with a data-driven jury consultant is key to evaluating their efficacy.   

An Ally Through the Process 

Most jury consultants have a broad range of offerings, and using them throughout the process, rather than only in particular stages, provides the most bang for the buck. When engaged from pre-trial onwards, jury consultants can more efficiently and effectively assist attorneys, as they will be up to speed at each step.  

Jury Selection 

Originally, assisting with jury selection was the only role jury consultants had in an engagement, and this remains one of the most important ways in which they are utilized by attorneys. It has been statistically shown that attorneys tend to employ the same stereotypes in jury selection as laypersons, yielding a massive opportunity for outcome improvement. Jury consultants close those gaps by limiting the use of intuition, cutting out ineffective trial team groupthink, and sticking to generalizations only when they have statistical relevance. 

The voir dire process is quick, and it is essential to use that time wisely. Before starting, jury consultants have already developed juror risk profiles; they understand what type of juror will have the most bias toward, and the most resistance to the client. Rather than the frequent mistake of “trying the case” during jury selection, jury consultants will help dismiss (and thereby select) members of the jury pool based on risk. This underscores the importance of engaging a quality, data-driven consultant. 

Focus Groups and Community Surveys 

Jurors can be difficult for attorneys to predict and to intuit after the benefit of a logic-oriented legal education.  Focus groups serve as a demographic approximation, so attorneys are less likely to be caught off-guard by reactions. These tend to be informal sessions where attorneys present some of the case’s facts, particularly those which run contrary to a friendly outcome. If focus groups are carefully selected, these reactions can be planned for prior to trial. In smaller actions, focus groups may be the main, or even sole role of the jury consultant.  

When a larger sample size is preferable, the jury consultant may conduct community surveys. The narrower the community demographic, the less costly and time-consuming it is to reach a representative sample. These are typically in the form of a phone survey but are increasingly done by Internet. Community surveys have a higher statistical significance than focus groups, but can be significantly more expensive, depending on sample size.  

Witness Preparation 

Expert witnesses, eyewitnesses, and character witnesses all benefit from directly working with jury consultants. Unfortunately, they are not always permitted to do so, according to Dr. Legget; “I know that often the testimony of the expert will be pivotal [so] I ask, ‘Do I have an opportunity to meet with the expert witness?’ Not all consultants will do that, and not all trial lawyers will say ‘yes’. Whether I get to ever meet the expert witness is purely in the hands of [the lawyers] and I’m glad to say that I persuade them [. . .] very often; I work with the experts to achieve maximum impact of their testimony.” 

There is potential justification for disallowing direct interactions between jury and consultant. While letting your experts chat amongst themselves may be more efficient, the extent to which this chatter is privileged is not settled law. Attorney Capozzola explores discoverability in a situation where a witness becomes convinced that the opponent is correct:  

First, it appears that the new Rule 26 only expressly protects communications between the lawyer and her expert; it is not yet settled whether the protections extend to all communications among experts. And, even if it does, the rule does not protect facts and data considered by the expert. Is an unfavorable opinion facts or data? There is an argument to be made that as long as the other experts do not rely on that expert’s work or opinions in forming their own opinions, then you should be allowed to wall off that area from discovery in a deposition – after all, technically speaking an opinion is neither fact or data but the synthesized result of the two. But there is also the argument that communications among testifying experts is not protected under the new rules and that the unfavorable opinion is itself a fact or data point that the expert invariably considered when exposed to it. The rules still allow discovery of all facts or data considered by the expert in reaching her opinions. Indeed, the comments specifically state that “the intention is that ‘facts or data’ be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients.” As a practical matter, this of how this could play out in a deposition of your testifying expert. The opposing attorney would explore the number of meetings, who was in attendance and what was said during those meetings. The attorney will quickly discover that Dr. X attended those meetings but is not a testifying expert. The opposing attorney, sensing there may be blood in the water, will likely vigorously try to find out everything he can about Dr. X. Can you shut this down? In all likelihood, you will find yourself in front of a judge or magistrate in uncharted waters trying to keep the lid on your self-made Pandora’s Box. What is your alternative? Deep six your very large and very expensive expert team and try to replace it with another? This may be impractical and certainly will not go over well with the client. You and the team may get deep-sixed!(2) 

When Dr. Leggett is afforded the opportunity, she acts as a best-case-scenario juror, noting, “My reaction is to their likeability, credibility and their ability to be persuasive, so I become the ‘first juror’ sitting in a session with the expert. I always call myself [the] first juror and I have a doctorate from Harvard, so if I don’t understand what you’re talking about, you’ve got no chance with the jury.” 

Jury consultants help facilitate the attorney-expert preparation process. Dr. Legget suggests that attorneys fully engage experts during prep:  

It poses some challenges to work with experts outside of the presence of lawyers because of confidentiality and discoverability. In my practice and [at] the advice of our professional organization, we work with the attorney present in the room. [. . .] Often those sessions [involve] a lot of talking at the expert. It’s interesting when I’m in those meetings, sometimes I hear the lawyers say, “We’ve got these documents we need to review and this you said in your report…” there’s a lot of one way conversation happening with the expert [but] my real goal is to get them in roleplay, and actually practice, because it’s only through actually practicing that I can assess whether this is going to be too high level for the jury or not. [. . .] How comfortable is the expert? Do they know what role they play in the trial strategy overall, and what has their experience been testifying before? It may be a lot; it may be a little. How can I help the lawyer help the witness to feel comfortable with their role? What job do they need to do? Are they the one that’s going to win the case or are they one part of the team that’s going to win the case? [. . .] The style of the expert is going to be seen as credible and reliable by the jury [and] practicing is the way to make and make strides towards achieving the optimal testimony. 

Additionally, witness preparation extends to the intangible aspects of jury interactions. Demeanor plays a subliminal, but important role within courtrooms. There are subtle ways that experts carry themselves which can have a profound impact on a juror’s perception of credibility. Body language, manner and pacing, posture, and personality impact that perception. This becomes even more complex in now-common virtual appearances, where factors such as camera angle and lighting play roles. Jury consultants spend significant time coaching and evaluating witnesses for demeanor, where the attorney’s time is better spent elsewhere. 

Mock Trials 

Many attorneys employ mock depositions, mock cross, or full mock trials to better prepare witnesses. Jury consultants will often add a good deal of value by selecting and employing mock juries from the same demographic pool as the actual jury, and polling them afterwards in addition to receiving a “verdict”. These types of role-play serve not only to gather jury data; but it is also incredibly valuable practice for witnesses. According to Dr. Leggett, “[Witnesses] have often told me they’ve had maybe one or two meetings before testifying and that there has not been enough actual role-playing for them to feel like they’ve practiced.” When witnesses practice in a realistic trial setting, they are more likely to be relaxed and persuasive in court.  

Visual Aids 

One of the most effective ways experts can communicate with jurors is through visual aids, and most jury consultants can assist with or even fully construct impressive exhibits for experts. These come in a range of formats; from simple, understandable charts to fully animated multimedia presentations. Producing an aid is not sufficient, however; experts need to become comfortable with the demonstration itself. Often, a mock trial is used as an effective means to familiarize the expert with the exhibit.  

While getting up close to the jury is not always an option, there are other ways to make demonstrations more interactive and engaging. Dr. Leggett likens jury interactions to teaching: [I]f you get up close to the jury box, you’re blocking others from seeing what you’re doing [. . .] but the idea of it, to be active and on your feet, I wholeheartedly endorse. I have often built a big chart that they’re interacting with, and able to show their expertise by being the teacher; the professor at the chalkboard or at the graphic in an interactive way. Writing things even on butcher’s paper in front of the jury can be useful because it makes juries feel like students. It is a teaching moment.  

She recommends a multimedia approach across the entire engagement, from reports to exhibits, continuing:  

I’ve usually asked to read [a witness’s] expert report. I’ve looked at what kind of charts they put into the expert report, and I inquire whether they have any graphics firm working on the case that can assist in making the charts and graphs even better. [. . .] They need a lot of charts, graphs, visual demonstratives in any way possible, in any media possible. I have worked with experts where we’ve made complete videos for them. One expert witness was an economist testifying about the worldwide salmon market. We sent this expert with a crew of videographers to Japan to film the Japanese fish markets to show what consumers are seeing. This was my idea because you talk about supply-and-demand, and eyes glaze over. [. . .The video] was pivotal.  

Post-Trial 

After the trial is over, conducting jury polls or interviews is fairly common, where allowed. While attorneys often conduct these, jury consultants act as a less intimidating buffer, and may be able to illicit more candid responses from jurors, particularly in interviews. The information gleaned can be used to tweak strategies in the future, both for the attorney, and for the consultant. 

Attorneys who use jury consultants in high-stakes actions have a statistical advantage over those that do not. From pre-trial jury selection to post-trial surveys; a quality, data-driven consultant is a key member of your trial team. Dr. Leggett advises, “Communicating to a jury is not something you learn how to do once. It evolves, and every jury is different.” 

For 30 years, Round Table Group has helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. We are a great complement to any litigator’s quest for a great expert witness and our search is always free of charge. Plus, we know some jury consultants.  

Sources 

1. Capozzola, Damian D. Expert Witnesses in Civil Trials: Effective Preparation and Presentation. (pp 478-479)  2023rd–2024th ed., Thomson Reuters. 

2. Supra 1 at pp 364-365 

3. Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336, 98 U.S.P.Q.2d (BNA) 1711 (Fed. Cir. 2011)