Oct. 19, 2011 – Trial consultants give lawyers advice on many aspects of litigation, including jury selection, case presentation, and trial strategy. But what is the wisdom these consultants impart?

Milwaukee attorney Paul Scoptur of Aiken & Scoptur S.C. is a civil trial lawyer and trial consultant who assists litigators across the U.S. and Canada. He says trial consultants can help lawyers unearth the various thorns of a case, and forecast jury behavior.

For instance, trial consultants like Scoptur use information from mock trials and focus groups to uncover juror bias, perceptions, and opinions in a particular venue. This type of forecasting can give litigators insights when developing trial strategy, noting the particular pieces of a case that resonate with jurors.

“You don’t want to find out what 12 people think about your case on the first day of trial,” said Scoptur, who also teaches pretrial and trial skills at Marquette University Law School. “That’s a little late.”

These activities can also help attorneys leverage settlement negotiations if there’s data to forecast a potential jury’s decision at trial, and give lawyers clues on what communication strategies to use at trial, says litigation consultant Alan Tuerkheimer of Zagnoli McEvoy Foley LLC in Chicago.

“Some litigators just want to see the raw data from a focus group or mock trial to get a sense of damages that are possible,” said Tuerkheimer. “This might serve as a reality check.”

Tuerkheimer and Scoptur are members of the American Society of Trial Consultants (ASTC), an association of professionals with education and training in fields like psychology, communications, sociology, and law. A big part of what they do centers on assessing juror perceptions.

Focus groups and mock trials

A focus group is a sort of “market research” tool used to acquire information on the perceptions of potential jurors. Consultants conduct focus groups to assess opinions about certain issues or scenarios that correspond to the facts of case.

Scoptur says focus groups and mock trials help litigators learn what he terms “juror-proof”– the proof that is important for jurors to see and hear before they decide in favor of a party to the case.

“The juror-proof we learn from these focus groups can be surprising,” Scoptur said. “Unlike lawyer-proof, which gets you past summary judgment, juror-proof helps lawyers identify facts or aspects jurors view as important, which drive deliberations.”

Focus groups and mock trials can highlight aspects of a case that lawyers view as unimportant or irrelevant, but may be important and relevant from the juror’s perspective.

Scoptur reminds attorneys that jurors view facts differently than lawyers. “Without a test run (or two) to identify juror-proof, litigators may miss important juror perceptions or themes that can impact trial strategy,” Scoptur said. “It’s important to test drive your trial story.”

Not many Wisconsin lawyers use trial consultants or conduct focus groups, according to Scoptur. There may be a perception that consultants are too expensive, or unnecessary. But many consultants offer discrete services that are affordable, and they can offer very critical information, he says.

That includes information on jury selection. Scoptur and Tuerkheimer say lawyers often overlook the importance of voir dire, and doing so can be detrimental to the case in the long run.

Voir dire

Voir dire allows litigators to identify statutory, subjective, and objective juror bias. In Wisconsin, both sides can strike three potential jurors, and can challenge jurors for cause. Trial consultants help litigators root out bias unfavorable to the client’s case before trial.

“You can have the best case in the world, but if you have a bad jury you’re going to crash and burn,” Scoptur said. “In many cases, lawyers don’t ask the right questions to learn about particular jurors.”

He says it’s hard to overcome juror bias at trial. “If a lawyer doesn’t identify that bias early, it is unlikely he or she will change that person’s mind. And jurors will bring perceptions, biases, and attitudes to the deliberation table. We see that in focus groups all the time.”

Tuerkheimer, who has a Masters in Psychology, says many trial consultants are trained or educated on human behavior and response, and use jury research to extract information useful in voir dire.

He notes that a lawyer’s demeanor and style will greatly impact the lawyer’s ability to empanel a jury favorable to the case. Letting jurors talk, making them feel comfortable and asking the right questions, will bring more to light.

And, voir dire is the attorney’s best chance to make a good impression, to bond with jurors, he says.

“It’s important to develop the relationship at voir dire, because effective communication is crucial when the trial begins,” Tuerkheimer said. “If they like you, they are more likely to listen to your message, and absorb the information you want them to remember.”

To improve voir dire skills, Scoptur and Tuerkheimer urge lawyers to get continuing legal education on voir dire, talk to skilled lawyers, and watch lawyers in the courtroom. “Try to see what works and what doesn’t,” Scoptur said. “A good voir dire can make all the difference. And so can a bad one.”

Making the case

Trial consultants also teach lawyers effective strategies of communication based on the circumstances and the jury pool. They help litigators mold the jury’s perception of certain facts, especially in complex cases where jurors must digest massive amounts of information.

For instance, Scoptur says jurors will often remember what lawyers highlight first, the so-called spotlight effect. If the spotlight is on the plaintiff, the jurors tend to filter the facts through their perception of the plaintiff. “If I’m a plaintiff’s attorney, I want to throw a spotlight on the defendant.”

Consider Scoptur’s focus group on a breast cancer case. A lady goes to the doctor, the doctor feels a lump, but the doctor says she’s fine, and the lady goes home reassured. Of course, she has breast cancer. And now the focus group is asked to respond to the plaintiff’s actions.

“People come up with an idea in their mind of how this wouldn’t have happened to them,” Scoptur said. “It’s called defensive attribution. Every single person in the focus group said, ‘I would have gotten a second opinion.’ Well, that’s not necessarily true. But they construct a story on how this wouldn’t happen to them. And then, of course, they blame the plaintiff for not getting a second opinion.”

Scoptur says a result like this shows the plaintiff should focus the jury’s attention on the doctor first.

“If I begin by talking about the doctor who felt the lump, and should have ordered a biopsy, I am focusing on the bad conduct of the doctor,” Scoptur said. “Jurors generally filter evidence through what they hear first. So they’ll accept what reinforces the bad conduct of the doctor and reject what is contrary to it.”

Tuerkheimer says trial consulting all goes back to communication. “We try to help lawyers present a story with arguments and themes that resonate, and communicate it in the most effective way.”

That might include visuals to help jurors understand the message and other strategies to address juror diversity. “For instance, younger generations certainly absorb information differently than older ones. Lawyers must account for that when communicating the message.”

By Joe Forward, Legal Writer, State Bar of Wisconsin

Related

• Want more insight from a trial consultant? Check out the State Bar of Wisconsin PINNACLE Business Counsel Institute, Nov. 31 - Dec.1, in Milwaukee. Bill Healy, a trial consultant at DecisionQuest in Chicago, will speak on the topic of “jury deliberations.”
• Want to observe a real trial, including jury deliberations? You can at the 22nd Annual Institute of Trial Practice (ABOTA). From opening statements to jury deliberations, you’ll get in-depth analysis on various aspects of trial practice. The program is Friday, Nov. 4 from 8 a.m. to 5:45 p.m. at the Olympia Resort in Oconomowoc. Tuition is $229. Earn 9.5 CLE credits. Click here to view the schedule and/or to register.
• Want more information on focus groups? Check out trial consultant Paul Scoptur’s article, “What are Focus Groups Anyway?” in Massachusetts Lawyers Weekly (starting on page 2), which mentions the top 10 reasons lawyers don’t do focus groups, and why they should.
• Want to improve your voir dire skills? Check out Litigation Consultant Alan Tuerkheimer’s Wisconsin Lawyer articles on the subject: “Persuading Jurors During Voir Dire” and “Politics in Civil Jury Selection.”