Do Attorneys Make Excellent Jury Consultants?

1
Do Attorneys Make Excellent Jury Consultants?

• BY
• http//www.magnusweb.com/

2
Melissa Pigott Point of View The philosophy of,
anything someone else can do, I can do better
resonates with some attorneys, who truly believe
they can do just as good a job, if not a better
job, working as a jury consultant than most, if
not all, jury consultants. Some attorneys, after
having had negative experiences with a particular
jury consultant, decide to conduct their own mock
trials and focus groups. Other attorneys seem to
think that the value of fairly compensating
someone, who is highly trained and who excels at
providing a different perspective on their cases,
is less important than conducting their own, jury
research cheaply. Still other attorneys believe
they know more about psychology than
psychologists. Attorneys are experts on the law.
They are not, however, experts on anything having
to do with group dynamics, cognition, decision
making, psychology, persuasive communication, or
other important aspects of jury research and
consulting provided by a highly trained,
experienced, Ph.D. level psychologist Just as a
psychologist is not an attorney, an attorney is
not a psychologist (unless he or she has a Ph.D.
in psychology, of course).
3
Unfortunately, within the field of jury
consulting there exists a wide range of
individuals and corporations, ranging from
astrologers, former stock brokers, people with
G.E.D.s who are good at reading people, and
attorneys, to psychologists and other highly
educated social scientists who have studied the
ways in which people make decisions beginning in
college, through graduate school, and for the
decades they have worked as jury consultants. The
end user of jury research and consulting services
must realize, just as a economy car will take one
down the road, there are many points of
distinction between an economy car and a Rolls
Royce more often than not, there is more to a
car than driving down the road! Doing things
cheaply is not something to brag about! Attorneys
who conduct their own jury research, as well as
those who are direct competitors with bona fide
jury consultants, such as Magnus Research
Consultants, perhaps dislike their intuitions
being called into question by actual, scientific
research.
4
However, just as it is not in a clients best
interest for an attorney to conduct his/her own
medical examinations on injured plaintiffs
perform his/her own accident reconstructions act
as his/her own expert on engineering, accounting
or other technical matters, it is not in a
clients best interest for an attorney to adopt a
dual role of advocate and jury consultant. (As an
aside, it has been noted that many attorneys lack
the people skills that are mandatory
requirements for providing excellent jury
consulting services. Merely being good enough
is arguably a less than noble goal when it comes
to predicting human behavior.) Any attorney who
thinks it is acceptable to tout his/her skills as
a jury consultant is well advised to perform
his/her own lobotomy.
5
However, just as it is not in a clients best
interest for an attorney to conduct his/her own
medical examinations on injured plaintiffs
perform his/her own accident reconstructions act
as his/her own expert on engineering, accounting
or other technical matters, it is not in a
clients best interest for an attorney to adopt a
dual role of advocate and jury consultant. (As an
aside, it has been noted that many attorneys lack
the people skills that are mandatory
requirements for providing excellent jury
consulting services. Merely being good enough
is arguably a less than noble goal when it comes
to predicting human behavior.) Any attorney who
thinks it is acceptable to tout his/her skills as
a jury consultant is well advised to perform
his/her own lobotomy.
6
David H.Fauss Point of view Melissa has never
been accused of being subtle in her opinions.
What is driving this blog are some recent
observations she and I have had about the
expansion of do it yourself mock jury research
into some of these do it yourselfers turning into
for hire jury consultants. The do it yourself
model might be better than nothing on low end
cases, but it should be avoided for significant
cases for reasons that are beyond the scope of
this discussion. It is interesting to consider
how active the Bar is in prohibiting the
unlicenced practice of law and stopping anyone
who is not a member of the a state Bar from
offering legal advice. And, yet at the same
time, some lawyers have decided to offer advice
in a field beyond their areas of expertise
namely trial consulting and human decision making
and all of those other areas Melissa listed.
Some of these lawyers are belittling
professionals who are expert in human decision
making, in the process.
7
To be fair, there are some lawyers with at least
undergraduate training in psychology, etc., and
there are a few with graduate degrees. Some of
these people work as lawyers, some as trial
consultants. (And there are some lawyer-trial
consultants with decades of experience practicing
on the trial consulting side who have taken the
time and effort to learn about the social
sciences, trial consulting, and who hire other
experts for their firm.) But, that is not the
type of attorney consultant we are discussing.
It is those that open a side business and offer
mock jury research to their peers. Most often
they market to plaintiffs attorneys and
emphasize they are cheaper than other trial
consultants. Based on first hand experience with
some of these individuals, some of these
attorneys do not appear to understand the science
behind the field of jury consulting.
8
Jury consulting is a hybrid of many fields with
centuries of academic research to be applied to
evaluating lawsuits. The danger is that some of
these do it yourselfers turned consultants do not
know what they dont know and they are
misinforming other lawyers who have not perhaps
had the opportunity to work with a bona fide
trial consultant. There are risks from bias and
lack of objectivity as well and the end clients
the plaintiffs and defendants themselves are
put at risk when untrained and uneducated trial
consultants, that is, those uneducated in the
social sciences or research methods, are
employed. And, while some of these
attorney/trial consultants are merely offering to
organize and facilitate mock jury research,
others are offering advice beyond that. Informed
consumers of trial consulting services, such as
trial lawyers and insurance adjusters and claims
managers, owe it to themselves and their clients
to learn a bit about the science of behavioral
research. This includes the fields of
psychology, sociology, criminology,
communications, as well as a sophisticated
comprehension of research methods and statistical
analyses.
9
These are not things learned in law school and
those who have a challenging case should seek out
the expertise that is beyond their training and
embrace the team approach of having a qualified
trial consultant on their side. Some may say
this is all self serving. Maybe it is. But,
just as lawyers try to educate the public about
not hiring unlicensed legal practitioners, we
believe we have the obligation to point out that
not everyone is qualified to be a trial
consultant. The field of trial consulting is not
licensed and, as Melissa pointed out, there may
be as many shysters practicing as trial
consultants as there are qualified consultants.
All one must do to practice trial consulting is
to say that you do, and maybe have a business
card printed. However, the depth of knowledge
and insight to be gained from hiring an expert
trial consultant goes far beyond bringing another
lawyer to the team. There is often a need to do
that, especially if the other lawyer has trial
expertise in a particular type of case, but
extending that to evaluating jury decision making
is taking it too far. Buyers beware.
10
Author Bio The writers Melissa Pigott and David
H. Fauss are the co-founding partners of Magnus
Research Consultants, Inc., and Magnus Graphics,
Inc. Magnus Research provides jury research and
trial consulting services for civil and criminal
litigation. Magnus research is customized, on a
case specific basis, to maximize the results of
litigation. Magnus scientifically evaluates
jurors or fact finders (arbitrators, mediators)
responses to case issues by using attitude
surveys, jury focus groups, mock trials, and mock
arbitrations to develop case strategies, themes,
voir dire questions, and more. Voir dire
consultation and witness preparation are also
available. Magnus provides Insights for
Successful Litigation. Magnus has worked on
cases throughout the United States, in both
federal and state courts. The Magnus team takes
pride in providing quality work. Please visit
www.magnusweb.com for more information.