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Have a question about our services or our field that you
don't see listed here? Send us an
email
and let us know. These are answers to some of
the questions clients and attorneys most frequently ask us. If you have never
used trial and jury consulting services before, you may find it useful to
browse. If you are interested in using our services on a specific case, we
encourage you to call or
email
to speak directly with a consultant. We can then explore the specific ways
in which we might be able to help you.
Q:
How can I know if a trial consultant or trial consulting company is
reputable and offers quality services?
A:
Unlike older professions like medicine, law, and accounting, trial consulting
does not yet have a uniform set of professional standards or credentialing
requirements—although the field is moving to create them. At the moment,
anyone can hang out a shingle as a trial consultant. You therefore need to
do good due diligence.
If you have never used trial
consultants before, it usually takes a few conversations with different consultants
for you to help figure out what services you might really need. Those conversations
are also a good opportunity to assess consultants' skills, insights, and professionalism.
Different services draw on different
skill sets, education and experience. Also, not all trial consultants or trial
consulting companies offer all services.
Effective
jury
selection assistance and juror profiling require training and experience
in questionnaire development and statistical analysis. Qualitative research
alone (such as focus group analysis or analyzing open-ended questions on a
questionnaire) will not give you solid data on which to develop a profile
or make strike decisions.
Designing and running a
focus
group or mock trial usually requires a team of at least two people for
the research to run well and give good results. Good research design and analysis
require training and experience in both qualitative and quantitative research
skills. Obviously, you want to assess how well the consultant appears to understand
your case issues during initial consultation. You also want to know who will
be on the team organizing and running your focus group or mock trial besides
the lead consultant.
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Are the other team members regular
staff, or are they contract employees brought in on a periodic basis?
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Who will determine the quotas and oversee
recruiting?
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How will recruiting be done to ensure your
mock jurors reflect the real jury pool? How will recruiting be done to
ensure your mock jurors reflect the real jury pool?
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Is the consultant someone who understands
how to sample your juror population to provide valid results?
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How useful your results will
be depends on the quality of the questionnaires used to elicit juror response
and of the face-to-face interviewing done by the people who run the focus
group or debrief the jury.
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Are they trained social scientists
who will make substantial intellectual contributions, or are they lesser
trained support staff?
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Do they have experience in your type of
litigation?
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Will they write questionnaires custom-designed
to test your specific case issues, or do they use standard, "cookie
cutter" questionnaires?
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How will the qualitative questions on your
questionnaires be analyzed and presented to you?
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Does the consultant or team have appropriate
skills in statistical analysis to analyze the quantitative data and do
juror profiling?
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Q:
What do you need to know to draft a proposal for services and/or give a budget
estimate?
A:
Many attorneys call us believing
that they need one type of service but on discussion of your case facts, we
discover that you need a different type of service to meet your goals. We
therefore like to talk with the lead trial attorney before drafting a proposal
for services. However, there are basic questions we will always want answered:
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What type of case is it?
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Are you plaintiff or defense?
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Who is your opposing counsel?
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When and where does your case go to trial?
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What are your bad facts?
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Who are the key witnesses on both sides?
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What is your client's budget?
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Q: How
much will it cost to use your services?
A: Your
cost depends on the
services you use.
Costs can range from less than $1000 for advice on case themes or drafting
of a juror questionnaire to thousands of dollars for substantial mock trial
research. We tailor our services to your unique needs, which include your
budget.
Call
and talk to a consultant. We will discuss your needs and give you recommendations
about which services we believe will benefit you the most. We will then either
give you an oral estimate on the phone or, for more complex cases and services,
draft a proposal that includes budget estimates.
We also have a
partnership
program where we will give you discounted rates in exchange for
a regular volume of business.
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Q:
How accurate is a mock trial in predicting what will happen in a real trial?
A: A mock
trial is not designed to predict trial outcome. (Social scientific research
cannot predict the outcome of complex, unique events anyway—so beware
consultants who suggest they can predict.) It is designed to test a case in
a way that helps us learn how to overcome our side's weaknesses and to present
our case most effectively.
We therefore work closely with the trial team to prepare
mock trial presentations that hone in on the key problem areas. We review
case documents and discuss the case with the trial team to develop arguments
and themes that need testing. We may choose to present selected witnesses
and demonstratives, or to focus on oral arguments only. We then analyze jurors'
reactions and work with the trial team to improve the persuasiveness of their
trial presentation. The final trial presentation therefore differs significantly
from the mock trial presentation. If we have tested witnesses, we may use
that feedback to work with the witnesses to make their presentations more
effective and credible to the jury. If we have tested evidence, we may have
significantly altered methods of presenting that evidence, or designed new
demonstrative exhibits to help convey our themes and points more effectively
to the jury.
The bottom line: A mock trial is not a good model of the
final trial because we use what we learn to change the trial presentation.
However, a well-designed mock trial can be helpful to
find out the range of damage awards that jurors are likely to award. To test
for damages, you want to conduct a mock trial with a minimum of two juries.
Three or four is ideal. Using mock trials to test for damages can therefore
be an important part of
case
evaluation and preparation for settlement or mediation.
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Q: If
I do a mock trial, I want to win. I am getting ready for the actual trial
and I want to win. Do you have any statistics on who won in the mock trial
and who won in the real trial?
A: We don't
keep such statistics.
From our perspective, the best thing is for you lose the
mock trial. Exposing your weaknesses and getting jurors to articulate the
strong themes and evidence they find on the other side gives us the information
we need to recommend powerful case themes and sound strategy that help you
prepare to win.
We sometimes recommend that the trial attorney who will
actually try the case play the opposing side in the mock trial. This provides
the attorney an opportunity to look at all the holes in his or her own case.
We also often recommend including evidence that you hope to keep out with
motions in limine. Putting on the evidence that is most damaging to your case
is the best way to develop a worst case picture and learn how to deal with
your toughest trial issues.
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Q: How
early should I plan to do a mock trial?
A:
It depends on many factors, including how complex and unique the case might
be; how many witnesses you might have to depose; the relative roles of fact
versus expert witnesses in shaping the trial evidence; the amount at stake;
and whether or not serial litigation may be at issue.
Conducting a mock trial before discovery begins can give
you some significant strategic advantages. In one case, the trial team used
the results to develop themes that guided discovery and to ask questions in
their depositions raised by the mock jurors on issues that the attorneys themselves
had not considered important. They used language in their questions that reinforced
themes that the research had shown would be persuasive with jurors. This early
preparation with trial in mind put them miles ahead of their opponents and
gave them an edge in both settlement negotiations and trial preparation.
If you wait to conduct a mock trial until closer to trial,
the mock trial can serve as a trial preparation and practice session. Many
evidentiary issues are already settled, so the mock trial can be a more accurate
reflection of what will actually be presented and argued in court. The drawback
is that you might not have enough time or flexibility to make use of all the
insights you gain. For example, we often discover that jurors want to hear
from a witness who was not declared during discovery—and now, of course,
it is too late. We also often have recommendations about demonstratives that
require time to design and execute.
Many of our clients are reluctant to invest in a mock
trial until after mediation efforts have failed—but that can leave you
scrambling to prepare. A cost-effective alternative is to bring in a consultant
for case consultation before mediation so that we can educate ourselves on
the case and offer advice about case themes and strategies to assist with
the mediation. If the mediation fails, we are then well prepared to develop
effective mock trial research on a quick turnaround.
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Q: Are
mock trial results ever used for settlement?
A: Yes.
Some of our clients have shown our reports to mediators and even authorized
the mediators to show sections of our reports to the opposing parties. In
many cases, this has facilitated settlement.
It can also help if the party in the lawsuit clients hears
the bad news early directly from the mock juries. The client then has the
opportunity to re-evaluate his/her position and settle the case more favorably
than he or she would have thought reasonable before the mock trial. It provides
a reality check that can support and reinforce an attorney's desire to settle
the case.
For more information, see our discussion of our
ADR Preparation services.
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Q: How
much lead time do you need to work on a case?
A: It depends
on the type of help you need.
In two to three hours over the phone, one of our consultants
can lead you through a series of questions designed to uncover your case problems
and weaknesses and make recommendations about themes, demonstrative exhibits
and trial strategies.
We can also draw on our in-house data bank and questionnaires
to quickly prepare customized voir dire questions and a juror questionnaire
appropriate to your venire and case.
We can arrange witness preparation as it fits with your
own trial preparation schedule.
To conduct a top quality mock trial or focus group, we
prefer to have at least three weeks lead time. That enables us to recruit
a group of jurors that closely match the jury pool of the venire. It also
gives us enough time to brief ourselves on your case so that we really understand
your problems and case issues and can design good research. And it gives enough
you enough time to prepare the case presentations (for a mock trial) or help
us prepare a script (for a focus group).
We can organize a mock trial or focus group more quickly,
if a facility is available—space can often be a problem, especially
in venire where there are few alternatives. The quality of the result depends
on the quality of the preparation, however, so we do not encourage last minute
research. Mock trials are expensive and we don't want you to waste your money.
At such a late date, it may be more cost and time effective simply to allow
us to educate ourselves on the case and meet with you to discuss case themes
and strategy and issues for jury selection. Another alternative is to conduct
a half-day focus group in which jurors respond only to opening statements
rather than conducting a full-scale mock trial or a more sophisticated focus
group.
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Q: Which
side do you work for, plaintiff or defense?
A: In cases
involving individual plaintiffs against companies, we more often work for
the defense. In complex civil cases, we work as often for plaintiffs as for
the defense. We always first ensure that there are no conflicts with existing
clients.
As researchers whose job is to help you gain new perspectives
on your case issues and challenges, we find our perceptions and research skills
are sharpened by researching and understanding the advocacy process from all
sides.
Our first concern, however, is always to protect our clients'
interests and confidentiality and to honor our established client relationships.
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Q: What
is your win record?
A:
We follow the professional rules of ethics proposed by the American Society
of Trial Consultants and do not publicize a win-loss record.
Why?
The social sciences are not like the natural sciences.
We deal in probabilities and frameworks of perception, not laws of nature
or repeating processes that can be easily modeled with mathematical tools.
The tools we use, like statistical analysis of juror attitudes in relation
to verdict preferences, or applying psychological and cultural principles
to structure more effective case presentations, help reduce the risk of making
bad judgments and increase the effectiveness of trial communication. If the
group of mock jurors is well chosen, mock trials can give you a good sense
of the range of possible damage awards. However, they do not enable us to
predict or determine outcomes.
We therefore do not publish a win-loss record because
we do not want to give the erroneous impression that we can determine trial
outcomes. A trial consultant who tells you that he or she can predict an outcome
or guarantee a result is behaving unethically and misrepresenting the ways
in which social science knowledge can help you prepare to win.
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Q:
What is the most cost effective way to do jury profiling?
A:
To obtain a reliable jury profile, you must conduct research on a group of
50 or more people. The most cost effective way to do this is by conducting
a telephone survey in your venue that probes people's attitudes and experiences
relevant to your case issues. We can develop and conduct such community surveys
on sample sizes of 100 to 500 people for a very reasonable cost.
Another method of developing a reliable jury profile that
enables you to also test case themes, witnesses, and evidence is to conduct
a large sample mock trial, with 50 or more jurors.
We do analyze data from mock juries of less than 50 and
develop jury profiles, but we take those results with a grain of salt. We
match the results against our experience and against selection models from
other cases of similar types in similar or the same venue. When the stakes
are high and jury selection is key, however, we always recommend either conducting
a survey or doing a mock trial with a large number of jurors.
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Q:
What is the difference between a focus group and a mock trial?
A: In a
focus group, a TBC consultant presents a brief summary of the case and then
engages a small group of jurors (7 to 10) in discussion to discover their
reactions and attitudes. A focus group is interactive, informal, and allows
for improvisation. It is ideal for discovering important case issues and key
problems early in trial preparation.
In a mock trial (sometimes called a "trial simulation"),
attorneys present both sides of the case in an adversarial, argumentative
presentation to a large group of jurors. Jurors follow rules of the court
and are not allowed to ask questions of the attorneys or interact with each
other during the case presentation. We give a series of questionnaires to
jurors throughout the case presentation asking their leaning and soliciting
responses to open-ended questions about case themes, evidence, witnesses,
and facts. After hearing the case presentation, jurors are divided into groups
and deliberate to a verdict. Afterwards, they are debriefed by a TBC consultant.
A mock trial is ideal for testing case themes, witnesses,
and demonstrative exhibits when you are in the later stages of trial preparation.
It can also be used to develop juror profiles to aid in jury selection.
For more information, see the discussions of
mock trials
and focus
groups on our Services page.
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Q:
I have some bad facts in my case. What can I do?
A: Test
your case, complete with your bad facts, in a focus group or mock trial. Find
out how a group that resembles an actual jury in your venue responds. After
the focus group or mock trial is over, we will analyze the qualitative and
quantitative data we have collected and offer our recommendations about ways
of strengthening your case presentation.
As an aside, if a case is headed for trial, it always
has some bad facts. As we educate ourselves on your case and test it before
jurors, we will likely find more than you now see. That's our job—to
see your case through the eyes of a jury and find where the fabric of your
story starts to wear thin: and give you advice about the new threads you need
to weave in.
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Q:
Litigation is often local in nature. Isn't it better to hire a local trial
and jury consultant rather than a national company?
A:
If you are going to trial in a remote area, this can be a legitimate issue.
In small communities where everyone knows everyone else, the dynamics of jury
selection and trial are very different than they are in large metropolitan or
suburban communities.
If primarily you want to find out local knowledge about the judges, jury pool,
and general character of the venue, or if you are working in a small rural
venue, local consultants may be a good
choice. As a national company, however, we have conducted jury research and
gone to trial in many smaller cities and rural areas. When we work in a jury
selection in a small venue, we often bring in a local knowledgeable,
such as local counsel or a pastor who has information about families in the
community, to assist us in jury selection and to help us deepen our understanding
of current community issues and attitudes. You therefore get the benefit of
both local knowledge and national research breadth and skill.
We have worked in jurisdictions
in almost every state in the nation. In the past three years alone, we have
worked on cases in Alabama; Alaska, Arizona, Arkansas, California, Colorado,
Delaware, Florida, Georgia, Idaho, Louisiana, Mississippi, Montana, Nevada,
New Mexico, New York, Ohio, Pennsylvania, Texas; Virginia, Washington, D.C.,
Washington state; and Wyoming.
If you want insight into the juror attitudes and experiences
that are likely to be relevant to jury selection in your case, a good mock
trial that will put your themes and witnesses to the test, and sound and insightful
case analysis, you need consultants who have done substantial research, are
creative thinkers, and understand your area of litigation. It is also important
that you pick a consultant whom you trust and with whom you have a good working
relationship.
The bottom line: Being local is less important than being
good.
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Q:
There is a good chance my case will settle. Shouldn't I wait until after settlement
or mediation talks are complete before starting jury research?
A: This
is a strategy question for which there is no simple answer. However, many
of our clients have used Trial Behavior's research results from a community
survey, focus group or mock trial results to settle a case in their client's
favor. If the damages are over $1 million, the cost-benefit ratio of pre-settlement
research can be very favorable. Conducting research while discovery is still
open also has significant beneftis.
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Q: Do
you use jury meters in your mock trials?
A: In
very specific situations or at a client's insistence, we will use continuous response measurement devices, but
generally, we do not
recommend their use. In both our experience and our assessment of the relevant
social scientific literature, we have found that the cost of these devices
far outweighs the utility of the data they generate. They have a high "gee
whiz" factor and many clients love to use them, but they can often cause
you to focus on the wrong factors in the heat of the mock trial. They also
increase greatly the technical complexity of mounting a mock trial. We have
seen equipment crash and the mock trial crash along with it. They also
produce an excessive amount of data, much of which proves trivial on analysis.
We find that pen and paper questionnaires and the more measured analysis that comes in a post-mock trial assessment
offers more valuable and reliable information at a more reasonable price.
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