An Expert Witness Guide to Jury Consultants
By Noah Bolmer
In high-stakes cases with significant expenditures on trial teams, jury consultants can be an indispensable component of client representation. While attorneys are legal experts, jury consultants are experts in human behavior generally, and jurors specifically. Attorney John Trimble relies on them:
I like to have a PR consultant and a jury consultant–particularly a jury consultant–looking over my shoulder remotely, because I do not want attorney-client privilege to be an issue. I often like to videotape my witnesses as I prep them to give depositions or as I prep them to testify at trial. I may want the jury consultant to watch the video and give me input as to how I ask my questions, the words I use, and the order in which I ask my questions, so that I can best prep my witness to give a truthful and credible testimony that fits the theme that we have.
Attorneys engage jury consultants to help prepare the trial team, including expert witnesses, for interacting with, and understanding jurors. In an interview with Dr. Ellen Leggett, the founder of Leggett Jury Research, we dug into the role of jury consultants, the psychology of juries, and how expert witnesses can leverage their expertise to better perform in court.
What do Jury Consultants Do?
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.
There is a common misconception that lawyers receive the necessary 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.
Another misconception about the process of jury consultants, according to Dr. 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.
Ask Questions
Expert witnesses should take a proactive approach by questioning their engaging attorney. Not all attorneys use jury consultants but might reconsider if asked. When accepting an engagement, Dr. Leggett suggests that experts ask questions:
[Experts should ask] “Is there a trial consultant?”, “Is there a jury [consultant]?”, or “has a mock trial been done?” If there hasn’t been a mock trial yet and there is a consultant, [ask] “is there a way that my testimony can be included in the mock so I can get some feedback?” And finally, if there is a jury consultant to ask, “is it going to be possible for me to have the jury consultants sit in on one of our sessions, so that I can get the benefit of the jury consultant’s insights about communicating to the jury?” I would love for experts to feel empowered to ask those questions, because in the long run it helps everyone [stay] 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.
Messengers to the Jury
Each juror is a unique, complex individual with an endless array of possible backgrounds and opinions that can affect their verdict. When afforded the opportunity, jury consultants spend a considerable amount of time identifying jurors that might sway the others, and those that might hold biases which could affect the outcome of the case. After assisting in voir dire, it becomes essential that experts are able to effectively communicate to the entire jury, including “leader” types and biased individuals.
Therefore, expert opinions are foundational to jury verdicts. They are the messengers to the jury, according to Dr. Leggett:
[O]ur goal is to find the best way to communicate the case, what messages are going to be most foundational; 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?’ And 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. [. . .] As a consultant, who puts a lot of emphasis on knowing who those messengers are going to be otherwise, I’m just giving, kind of pie-in-the-sky, strategic recommendations to the clients and over time in my own practice, I’ve become much more focused on the messengers—those witnesses—many of whom are the experts. In the best situation, we might test some of the [expert] witnesses in a mock trial well before trial to have an opportunity to get a reaction from the jurors.
A Vetting Process
Jury consultants are not always permitted to interact directly with expert witnesses, and this is to the detriment of the case, says Dr. Leggett. Working directly with experts affords the opportunity to vet the expert from the jury’s perspective; “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.”
When she 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. Leggett 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.
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.
Dr. Leggett notes how non-verbal cues and body language affects jurors:
Eye contact is one of the things I work on most with every witness [. . .] If you think about how 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 [. . .] because they will be the ones to judge whether you’re truthful or not.
Some jury consultants will video record expert witnesses during practice sessions and evaluate the performance. This allows experts to practice and improve demeanor and speech in a low-pressure environment. Once comfortable, jury consultants may increase the virtual pressure, with realistic roleplay, mock direct and cross, and sometimes even fully simulated trials with jurors.
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.
Anchor the Jury with a Theme
Expert witnesses should assume that juries are comprised of laypersons and use effective strategies to communicate their opinion in a clear and simple manner. Experts should keep returning to a main theme. Dr. Leggett suggests:
You may find that there is a particular theme or refrain. A simple phrase that you can use that anchors everybody and you can keep coming back to it. [. . .] Boil it down to the essence. As I say, “can your grandmother understand this?” If not, we’ve got to keep working. Boiling it down to the essence [. . .] is important for the jury. Even though the structure and all the other evidence needs to be in the record, we need to know what it is that’s 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.
Making a Great Team Member
Experts who maintain a healthy confidence, while remaining willing to learn have the most to gain from jury consultants, according to Dr. Leggett:
A combination of healthy ego, but willingness to learn [makes for] an expert the jury sees as having special expertise. Therefore, having the confidence in what they’re saying and the ability to own it with, I say a ‘healthy’ amount of ego—as opposed to egotistic and overly confident—is [what] we want. Enough expertise that jurors will trust, but not an arrogant expertise that turns jurors off.
She continues:
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 the ability to learn is the flexibility to read the room, so to speak, and know what environment you’re in when you go to testify.
Remain aware of your body language, use visual aids, and anchor jurors to a theme for a more impactful role at trial. Avail yourself of jury consultants’ experience when available, and keep practicing!
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