In this episode…

Dr. Leggett works with experts to improve their performance in front of juries. She elaborates on her role, “What that involves is my reaction to their likeability, credibility, and ability to be persuasive. I become the first juror sitting in a session with the expert. I always say, ‘I’m your first juror and I have a doctorate from Harvard. If I don’t understand what you’re talking about, you’ve got no chance with the jury.’”

Check out the complete episode for our discussion on empowering experts, jury perception, and the importance of practice.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. Ellen Leggett, Founder and President of Leggett Jury Research

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome Dr. Ellen Leggett to the show. Dr. Leggett is the founder and president of Leggett Jury Research, a national trial consultant practice specializing in assisting in complex, high-stakes civil cases. She is well-published and has a strong background in academia as a Professor of Psychology at USC and holds both a master’s and doctoral degrees in psychology and education from Harvard University. Dr. Leggett, thank you for joining me here today at the Round Table.

Dr. Ellen Leggett: Very glad to be here, Noah. Thanks for inviting me.

Noah Bolmer: Of course, let’s jump into it. With a background in psychology, jury consulting may seem like a logical career path, but what many people might not know is that you are one of the founders of this area of inquiry. How did you first become interested in juries as a psychologist?

Dr. Ellen Leggett: That’s a fun question to answer because I was on the ground floor of a field that grew, and I’ve been doing this now for 35 years. I’m very proud of how the field has grown and evolved over all this time. It went from infancy to being a grown-up in my career, but I love telling the origin story because I like to emphasize what chance conversations can play in your life. I was a professor at one of the UC campuses out here in California, and I was teaching psychology. I was studying the difference between expert and lay reasoning. For example, studying the difference between, what parents, teachers, and children think, intelligence or being smart means and differences in how doctors and patients [define] health. Things like that.

I was on an airplane for summer vacation going back to Boston, and the flight from L.A. to Boston was long. [During] the entire flight, I talked to my neighbor who was a psychologist and had just joined a startup consulting firm of psychologists. They intended to pitch their services to corporate lawyers to help communicate with jurors in the courtroom. In the middle of this conversation, I said to myself, “Oh, my gosh, there we have it again, experts and laypeople. I want to know more about this.” And long story short, she gave me her business card. I called her and I was the 20th person hired in this startup consulting firm that became the burgeoning, major firm in the country to get this industry launched at that time.

Noah Bolmer: That’s a great jumping-off point for telling us what a jury consultant does. There’s a lot of misinformation. People think that you’ve got a crystal ball or something. How does it work?

Dr. Ellen Leggett: 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. What do jury consultants do at the beginning? We were trying to create a wall and a niche in an industry with trial lawyers who had been practicing in front of juries for years, and we were offering something new. What were we offering? 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. They do something like toss a coin or rule on emotion only and then everyone says what a horrible jury system we have. We wanted to be both advocates for jurors and provide strategic information for trial lawyers that would help them communicate more effectively.

Noah Bolmer: One of the things you do is conduct studies on jury decision-making. It’s an important part of your practice. How do you go about designing these studies, given the vast breadth of cases? How do you capture the relevant data and how do you parse that data?

Dr. Ellen Leggett: You’re right. We were very reliant and throughout my career, 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 they are 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.

Noah Bolmer: What makes someone a good candidate to be a sample juror? Is it somebody who served on a jury before? Is it pretty much anyone because we have juries of peers, how do you pick someone to be the data point?

Dr. Ellen Leggett: The mock jurors are members of the community who would be in the broadest sense, eligible to serve on any trial. In other words, they meet the minimum qualifications of being over the age of 18, registered voters, or the DMV has their name and number from car registration. Other than that, we are excusing anyone who has some kind of direct involvement with the litigants or the case because everything that we do with mock jurors is intended to be highly confidential. It’s attorney work product, after all. We’re trying to give a sample of the diversity in that community and we’re often trying to match what the overall demographics are in the community. If it’s a retired community, if it’s people who are highly educated, we match the demographics in some way to say this group assembled here is a good sample of the distribution of people you might find in this trial venue.

Noah Bolmer: It’s almost like you’re conducting a mini voir dire after a fashion in choosing potential-

Dr. Ellen Leggett: No, we don’t. We interview everyone before they’re seated as a mock juror, but we’re not doing a voir dire like at court. They have to pass high-level demographic screenings and disqualify them. It’s mostly disqualifying them if they’ve got some connection to the case but other than that we call it a general population recruit.

Noah Bolmer: Do you typically work directly with experts, or do you do everything through the head attorney in a case you interacting with?

Dr. Ellen Leggett: Good question. What role do I play with experts as you as you brought that up? I think I should say that our goal is to find the best way to communicate the case, what messages are going to be most foundational, and what themes are going to be most foundational for the story told to the jury about the case. Then we turn to who are the messengers that can deliver that story. The lawyers can only do so much, right? We know they can give an opening statement and then the judge says, “Disregard anything they say that’s not evidence.” The messengers are extremely important, the witnesses. I’m someone, as a consultant who puts a lot of emphasis on knowing who those messengers are going to be because otherwise, I’m just giving you kind of pie in the sky, strategic recommendations to the clients and over time in my practice, I’ve become much more focused on the messengers and those witnesses, many of whom are the experts. In the best situation, we might test some of the witnesses in a mock trial well before trial and have an opportunity to get a reaction from the jurors, seeing fact witnesses or expert witnesses during the month trial. That’s something I advocate for, to start putting the message and the messenger together.

Noah Bolmer: Besides mock trials, what else can an expert witness expect when working with a jury consultant? Do you focus on demeanor and delivery, or have you written before about how important it is to be concise and trustworthy? How can an expert witness improve the way that the jury perceives their trustworthiness and how can they practice being concise?

Dr. Ellen Leggett: You said a keyword there, practice, and that is the message I bring to the trial lawyers. Whether we have tested the experts in advance or not throughout a mock trial, I know that often the testimony of the expert will be pivotal, and 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, so whether I get to ever meet the expert witness is purely in the hands of the client and the lawyers. I persuade them that it would be a good thing very often and I work with the experts to achieve the maximum impact of their testimony. You [asked], “What does that involve?” What that involves is my reaction to their likeability, credibility, and ability to be persuasive. I become the first juror sitting in a session with the expert. I always say, “I’m your first juror and I have a doctorate from Harvard. If I don’t understand what you’re talking about, you’ve got no chance with the jury. I’m the best jury you’re ever going to have. Try me.” I’m with the expert on trying to get their content to be understood.

I should say it poses some challenges working with experts outside of the presence of lawyers because of confidentiality and discoverability. In my practice and [at] the professional advice of our professional organization we work with the attorney present in the room. That is my goal also. I’m joining in sessions planned by the attorney to meet with the expert. 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 you said this in your report.” There’s a lot of one-way conversation happening with the expert and my real goal is to get them into role-play and practice that word because it’s only through practicing that I can assess whether this is going to be too high level for the jury or not. We’re working on [the question] how comfortable is the expert in their role? Do they know what role they play in the trial strategy overall and what has their experience been testifying? 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 ones who are going to win the case or are they one part of the team that’s going to win the case? That’s a big deal.

Then we get into my subjective opinion and anything we’ve learned from a mock trial test as to whether the expert’s style is going to be seen as credible and reliable by the jury. Practicing is the way to make strides toward achieving the optimal testimony. I can get more specific, but I’ll stop there and see where else you want me to go.

Noah Bolmer: I’ve had several expert witnesses come on and talk about their interactions with juries and the ones that feel they’re connecting with juries mention a lot of intangibles such as eye contact, body language, and when it’s appropriate to make demonstrations close to the jury box, so they’re interfacing with the jury. Are those effective strategies in general?

Dr. Ellen Leggett: Yeah. I would emphasize that the eye contact is one of the things I work on most with every witness- by the way, not just expert witnesses. If you think about how do we assess whether someone’s telling the truth or not, we always say, “Yeah, look them straight in the eye and tell them the truth.” Right? We can’t really tell if someone is truthful when we’re seeing a profile sideways view. Which would be the view the jury would have of a witness if the witness is looking at the questioner. They would be looking sideways, and the jury would have a great view of their cheek in the side of their face, so it’s not natural to think about pivoting and talking to the jury. So that’s a big hurdle that needs practice and work a lot on that. How to do that? How to make that seem natural? How to not make it seem that you’re being rude to the lawyer who’s asking the questions. And we do work on exactly how to position yourself in the seat and how to look at the jury. So that you’re not seen as being someone who’s staring at them. Because they will be the ones to judge whether you’re truthful or not. The demonstration up close to the jury, not every judge will permit that. There are often very tight courtrooms, and judges will not let witnesses or even lawyers get right up next to the jury box. I’ve seen that more times than not. Furthermore, if you get up close to the jury box, you’re blocking others from seeing what you’re doing. There are a lot of rules about that, but the idea of being active and on your feet, I wholeheartedly endorse. I have often built a big chart that they interact with and can show their expertise by being the professor at the chalkboard, or the graphic interactively. 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. 

Noah Bolmer: Let’s talk about visual aids. What kinds of multimedia are most effective for jurors? Does that type of case make a difference?

Dr. Ellen Leggett: That’s a good question and I’m a big believer in visual communication in the courtroom because a picture is worth 1,000 words. It truly is, and it also has a longer memory than words. I’m valuable as a member of the trial team working with the witnesses and experts. usually asked to read their expert report. I’ve looked at what kind of charts they put into the expert report, and I inquired whether they have any graphics firm working on the case that can assist in making the charts and graphs even better. My assessment is that they need a lot of charts, graphs, and visual demonstrations in any way possible, in any media possible. I have worked with experts, and we’ve made complete videos for them. One expert witness was an economist testifying about the worldwide salmon market and the supply and demand of salmon. 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 but given that we were talking about Japan as the largest importer of salmon in the world, what is the consumer based with their created that video, which she testified to in trial, and it was pivotal. Whereas before the expert just talked about supply and demand, we were not getting the jury traction that we needed on a big antitrust case where market changes and things were very important.

Noah Bolmer: That’s fascinating. I’ve talked to a lot of expert witnesses who have talked about the way they communicate their technical field to laypersons. One thing that’s not talked about a lot is how you keep people interested when you talk about things that aren’t technical but boring.  If you’re talking to an actuary or about fish markets? Besides visual aids, what are some of the techniques that experts can use to make their expertise more accessible and more interesting to jurors?

Dr. Ellen Leggett: As a professor, I think it’s the same as what makes a good professor in the classroom. You may find there is a particular theme or refrain, and you can use good examples or simple phrases that anchor everybody, and you can keep coming back to it. One of the goals is to keep the information coming succinctly. Another important way to make sure you’re understood is to boil it down to the essence. As I say, “Can your grandmother understand this?” If not, we need to keep working. Boiling it down to the essence, which is important for the jury, is important. Even though the structure and all the other evidence need to be in the record, we need to know what is most important for the jury and deliver that kernel multiple times. Repetition succinctly in a memorable way with most likely an exhibit that will go into the jury room and a demonstrative won’t. Working to get an exhibit that can go in the jury room is important as well.

Noah Bolmer: You consult in all, at least most litigation areas ranging from negligence to antitrust. Are there differences in your approach to different practice areas?

Dr. Ellen Leggett: I would say no. My ability to be the eyes and ears of the jury is my main goal in any kind of case. Some cases are more complex than others. Nonetheless, the techniques that I use are very similar.

Noah Bolmer: What makes an expert great to work with? What are the things that you’re looking for as a consultant that even if they’re not great at first, make them a great canvas?

Dr. Ellen Leggett: I think a combination of a healthy ego and a willingness to learn [as] an expert is an expert. The jury wants to see them as having a special expertise. Therefore, having confidence in what they’re saying and the ability to own it with, I say, a healthy amount of ego as opposed to being egotistic and overly confident is the variable there we want. Enough expertise that jurors will trust, but not an arrogant expertise that turns jurors off. That’s number one. Number two is a willingness to learn. I say that because communicating to a jury is not something you learn how to do once. It evolves and every jury is different because of the case facts being different. The trial lawyers and venues are different, so if you’re an expert going to multiple states to testify you need to get with the local scene. The jury consultant is probably the best expert on that so, the ability to learn, flexibility to read the room, so to speak, and know what environment you’re in when you go to testify. I think those two things, along with a good sense of humor make an expert a joy to work with. Holding themselves to a standard that is going to work. If you are confident, they will see you as credible and deliver an important message that the case needs.

Noah Bolmer: In smaller actions where the expert witnesses don’t necessarily have the opportunity to work with a jury consultant, how can they best prepare themselves? Are there resources out there they can use to practice and work on their expert witnessing ability vis-a-vis the jury?

Dr. Ellen Leggett: Certainly, a lot has been written to give tips and tricks to experts and witnesses alike, but I think as I alluded to at the beginning, what I think is most important is practice. Some lawyers tell me they don’t want to work too much with the witness because the witness will be stale. I think the opposite. I think practicing is key to feeling comfortable so if the witness can practice at home with the wives, which is of course, what they’ve done forever. There were jury consultants who used their spouses, their partner, their siblings, and their friends, as an audience is what I think is important. Getting any feedback from them, not about content but about delivery, can help. It’s the trial team and jury consultant who focus on what is needed for the case. What experts can do and should do is ask for more practice with the trial team. They 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. The practice is in a meeting where there’s a discussion after every question of practices, let it roll, and have the attorney there to ask the questions. I think any expert can ask for more practice to make them feel as comfortable as possible.

Noah Bolmer: Do you have any advice for expert witnesses or attorneys who find themselves in jury trials?

Dr. Ellen Leggett: I would love to empower experts to ask about the services of a trial consultant in any case that they’re working on. They should know if there is a trial consultant. [They should ask], “Is there a jury or has a mock trial been done? If there hasn’t been a mock trial yet and there is a consultant, is there a way that my testimony can be included in the mock trial so I can get some feedback? Finally, if there is a jury consultant to ask, is it going to be possible for me to have the jury consultant sit in on one of our sessions so I can get the benefit of the jury consultant’s insights about communicating with the jury.” I would love for experts to feel empowered to ask those questions because in the long run, it helps everyone be on the same page and not the jury consultant over here talking only to the lawyers divorced from the opportunity to work with the messengers who are so important for the jury at trial.

Noah Bolmer: Sage advice, thank you, Dr. Leggett, for joining me today.

Dr. Ellen Leggett: You’re very welcome.

Dr. Ellen Leggett, Founder and President, Leggett Jury Research

Our guest, Dr. Ellen Leggett is the Founder and President of Leggett Jury Research, a national jury trial consultancy. An original advocate and developer of the psychology-based approach to working with juries, she is a well-published leading expert in her field. Dr. Leggett earned her master’s and doctoral degrees in psychology and education from Harvard University.