Ethical Issues in the Use of Trial Consultants

November 30, 1999

By: Guy R. Gruppie

The Role of Trial Consultants

Civil trial attorneys today increasingly turn to an empirically-based approach to jury selection as opposed to intuiting or speculating about a juror's personal biases and attitudes. Though it is difficult to measure the results of this approach with any precision, the consensus of both plaintiff and defense trial attorneys is that use of trial consultants can yield successful results. Trial consultants offer a variety of services that are directed at anticipating or shaping a trial result. Such services include opening statement consultation, community attitude surveys, damage award assessment, jury instruction review, and the following:

B. Focus Groups - A focus group, drawn from the area where the case is pending, is given one or two issues to consider in order to assess the response. For example, a closing statement may be simulated for participants who will then be divided into response groups and questioned in detail as to factors shaping their decision. More flexible and less expensive than a mock trial, a focus group will segregate relevant from irrelevant facts. Here again, jury science allows for scientific analysis of the data gathered and the expert application of that data.

C. Jury Questionnaires - While voir dire is an excellent tool, it is limited in its ability to obtain underlying, probing information, especially since a roomful of prospective jurors is watching the process along with the judge and counsel. Since questionnaires are often lengthy and detailed in contextual relation to the trial issues, they garner invaluable insight into the profile of prospective jurors. In this circumstance, jury science will provide its greatest benefit in drafting and interpreting the responses, as well as framing strategic follow-up questions to elicit the most relevant information.

D. Jury Selection - Jury selection presents the most traditional venue for the trial consultant. Even if attorneys choose to rely on their own beliefs and biases, these are only probative if they are scientifically confirmed. In jury selection, it is impossible to know which jurors should be rejected unless a party is first aware of the people to seek. While demographics play a role in creating the profile of a prospective juror, other scientifically-based factors may be more important, depending on the issues to be litigated.

E. Juror Surveillance - Despite its intrusive nature and high price, juror surveillance can allow the attorney to independently verify the truth of voir dire responses. Surveillance can also provide the trial consultant with valuable information that cannot be gleaned from other practices in arriving at a jury profile. Unlike voir dire, the subject is unencumbered by the cloak of appearance or a socially acceptable facade that masks reality during surveillance.

Do Trial Consultants Really Work?

A significant benefit offered by jury science is its ability to help attorneys filter dishonest answers by potential jurors during voir dire. Many studies have shown that people tend to provide socially acceptable answers when questioned before an authority figure, like a judge or trial counsel, in an effort to conceal or deny their inherent prejudices. By demographically correlating attitudes related to the trial, obtained from questionnaires and in-person interviews, attorneys can remove potential jurors during the voir dire process whom they believe are masking their true biases.

While no significant empirical evidence validates a correlation between juror characteristics and a consistent bias favoring one party, jury science employs tools that reach into the mindset of jurors using scientific analyses of gathered information. The outcome will depend on the nature and extent of litigation, but the tools can help to formulate a plan from voir dire through closing arguments. Trial consultants are able to examine the courtroom demeanor of prospective jurors during the entire selection process and apply psychological theory to physical cues, both verbal and non-verbal. Armed with this interpretive information, pinpoint accuracy replaces guesswork, and persuasive representation replaces speculation. Such expertly wielded tools can make the difference in high stakes litigation.

Ethical Concerns

Some detractors have argued that unequal access to consulting services poses an ethical concern. The challenge that jury science and its high cost runs afoul of the United States Constitution's impartiality mandate when only one side can afford access to consultant services merits some consideration.

In effect, however, what is unfair about trial consulting is a metaphor for what is unfair about the adversarial system itself. The mismatch in litigant resources results in a mismatch of affordable professional services across the board. If this argument is accepted, the impartiality mandate would necessarily apply to hiring the best legal counsel, expert witnesses, conducting sub rosa investigations, and employing the use of pricey visual graphics, etc. The challenge of a level playing field could be lodged against any and all trial-related services. While the task of the trial consultant is providing research and advice, the jury has the final word.

Fortunately, the internet offers on-line research services, such as virtual focus groups, at a fraction of the cost. On-line research can yield large sample sizes consisting of demographics that truly mirror the actual jury pool. In addition to being cost-effective, the trial consultant or attorney who uses internet technology can compile data from a wide variety of cross-sections or areas across the world, eliminating the need for travel to different geographic locations. Thus, trial consulting may be accessible to a wider pool of litigants than simply those who are most affluent.

A second argument offers that if trial consulting is so effective as to significantly impact jury composition, it may violate the constitutional right to an impartial jury. If jury science is able to dictate the outcome of a trial by facilitating the choice of a perfect jury, it tramples upon constitutional principles that should be immediately addressed. To date, no court has heard such challenges.

Some opponents of jury science have argued that when selecting jurors, employing invidious stereotypes is inherently part of the trial consultant's business. Even more disturbing, consultants add scientific validity to these harmful stereotypes. On the other hand, jury science causes some attorneys to abandon the use of antiquated stereotypes in selecting a jury. For example, detailed research of one particular community revealed that education level or books read were more relevant to the defense than membership in a particular class or race.

oreover, the trial consulting industry is presently unregulated. Any individual or group can enter the field and identify themselves as trial consultants. To require the licensing and regulation of trial consultants would necessitate a regulatory body that would, inevitably, drive up the price of services. Yet it is difficult to assess the level at which the industry should be regulated when there is still conjecture about the extent to which jury science has any impact on trial outcomes.

Conclusion

On the one hand, jury science assumes that jurors are incapable of drawing conclusions based upon evidence that they process at trial. Use of jury science addresses that concern by working to select a jury with a certain predisposition, or to instill that disposition at trial. On the other hand, jury science preserves impartiality by ensuring that hidden biases and prejudices are exposed so that they will not dictate the outcome of trial proceedings. In that regard, jury science counters archaic stereotypes and replaces them with scientific demographic analyses. Society benefits by having racist and often malevolent stereotypes removed from the trial. Ultimately, it is a litigant's right and a lawyer's duty to enlist all legal means to bring a favorable result at trial. Any restrictions to the hiring of trialconsultants, therefore, should be prohibited.