Lawyers handling high-stakes litigation matters know that leaving nothing to chance is crucial when preparing a case for trial. They assemble trial teams that include not only the brightest attorneys, paralegals, and industry-leading expert witnesses but also rely on the specialized expertise of trial consultants to enhance their trial strategies.

Who Are Trial Consultants?

Trial consulting is a highly specialized field that draws from a diverse pool of professionals, including social scientists, communication experts, psychologists, linguists, and former trial attorneys. These experts are well-versed in trial strategy and human behavior and are appropriately credentialed, possessing a minimum of a Bachelor’s degree, although most have obtained a Masters, PH.D., or Juris Doctorate.

The scope of services provided by trial consultants varies widely. Some focus primarily on pretrial research, while others spend significant time in the courtroom, assisting with jury selection, monitoring jury dynamics, and refining case strategies. Additionally, many trial consultants specialize in witness preparation, theme development, and the creation of persuasive graphics and demonstratives. The best trial consultants offer a well-rounded approach that encompasses all aspects of pretrial research, early case assessment, witness preparation, theme development, and post-trial analysis.

Trial consultants provide a wide range of services designed to give trial teams a strategic edge, including:

• Jury Research: This broad term encompasses various pretrial research exercises aimed at assessing case strength and shaping trial strategy. Depending on the client's needs, trial consultants may conduct full-scale trial simulations, mock trials, focus groups, online jury research, community attitude surveys, or change of venue surveys. The type of research selected depends on the client's exposure, budget, and the timing of the research. At the conclusion of a research project, trial consultants present a detailed summary of findings, identifying potential problem areas, persuasive evidence, and key themes. In some cases, they also develop profiles of ideal and non-ideal jurors based on the research. While small group research shouldn’t be used to predict specific verdict amounts, it can reveal patterns in juror responses to key issues, witnesses, and evidence, providing valuable insights for jury selection and trial strategy.
• Case Assessment: Liability & Damages: Jury research is often used to evaluate liability and potential damages, helping the trial team decide whether to settle or proceed to trial. The research results guide the development of an effective trial or settlement strategy, tailored to the client's specific circumstances.
• Develop Case Themes: Every successful case needs a compelling theme. Trial consultants work with trial teams early in the litigation process to develop, test, and refine case themes, ensuring they resonate with jurors from Voir Dire through Closing Arguments.
• Evaluate & Prepare Witnesses: Witness preparation is another critical area where trial consultants excel. They help prepare key witnesses by familiarizing them with courtroom procedures and refining their testimony delivery, including communication techniques, demeanor, and even dress code. Trial consultants also evaluate witnesses for credibility and likability, providing trial teams with insights that may necessitate adjustments to the trial strategy.
• Demonstrative Aids: Many trial consulting firms have in-house graphic experts who craft compelling visual aids, from demonstratives for expert witness testimony to polished slide decks for Opening Statements and Closing Arguments. These visual elements are designed to ensure that evidence is presented in a clear, compelling, and professional manner.
• Voir Dire Strategy: Voir Dire is often considered the most crucial part of a trial, as it’s the first opportunity for attorneys to make an impression on potential jurors. Trial consultants assist in developing a Voir Dire strategy that maximizes the amount of information gathered from jurors, aligning this information with the ideal/non-ideal juror profiles created during pretrial research.

Why Use a Trial Consultant?

Trial consultants are experts in trial strategy, masters of social dynamics, and skilled in presenting effective, cohesive, and persuasive narratives to juries. They understand the nuances of individual versus group dynamics and work closely with trial teams and witnesses to ensure the client’s message is clearly communicated to the jury. The ultimate goal of a jury consultant is to present the case in such a way that jurors become advocates for the client during deliberations.

Engaging a trial consultant enhances the depth and breadth of the trial team’s capabilities, bringing a diverse set of skills that complement those of lawyers and paralegals. This collaboration positions the trial team for success, increasing the likelihood of a favorable outcome for the client.

The specific needs of a case, including the type of pretrial research and services required, will dictate the choice of a jury consultant. While different consultants may approach research and trial preparation in various ways, all experienced consultants share the ability to synthesize research data and assist counsel in formulating an effective trial strategy.

When selecting a jury consultant, it’s important to ask for references, review their case experience, and inquire about their research strategies, witness preparation methods, communication techniques, and success rate. This information will help you choose the right jury consultant for your case.

The Takeaway

• Choose the Right Trial Consultant: Ensure the consultant you select is well-suited to your case needs. Don’t hesitate to ask for references, interview multiple candidates, and assess their education, experience, communication style, and ability to work with the entire trial team.
• Engage a Consultant Early: A trial consultant can do much more than conduct pretrial research. Depending on the client's exposure and budget, consider utilizing their expertise for theme development, witness preparation, and crafting compelling demonstratives.
• Remember the Art and Science of Trial Strategy: While litigation outcomes can never be guaranteed, hiring an experienced trial consultant can significantly improve your chances of achieving a favorable result for your client.

By incorporating these strategies and building strong partnerships, your trial team will be better equipped to navigate the complexities of high-stakes litigation and deliver outstanding results for your clients.