A: This is a common perception of trial and jury consulting. The question assumes that there is a prior "truth" out there, which trial consultants distort or manipulate. However, a case makes it to trial is because the "truth" is neither clear nor obvious.

A trial is essentially a "truth contest" where each side presents its version of events. It is the jury’s job to decide what the true facts might be. Until the jury has ruled, there is no "truth."

Typically, in the cases we work on, the stakes are very high. People’s lives, businesses, working capital, and perhaps reputations or even lives are at stake. Reasonably, each side wants to present a case that the jury can understand and to which they can relate. Each side wants to have a seated group of jurors who can be fair to their case rather than starting off with such strong biases that they have already decided what the "truth" of the matter is before even hearing the evidence.

We use social science insights and research to help trial lawyers craft more effective and persuasive case presentations and eliminate jurors who are biased and unable to listen to their case. We help lawyers refocus away from the legal issues onto the human issues that are relevant to a jury.

There is nothing manipulative about this. We don’t decide who appears in the jury lists. In most jurisdictions, this is determined by a random process. We also have limited power to select a jury. Like all other aspects of trial, jury selection is an adversarial process, with each side getting a like number of "strikes," that is, opportunities to excuse a juror from service without explanation. The process is more aptly named "jury deselection." Each side has limited information on which to judge a juror’s fitness for service. We certainly believe that the services of a good trial consultant can give our side the edge. However, there are no guarantees and there are many, many factors that determine the progress and outcome of a trial. Trials are a risky business, which is why each side does everything it can to decrease the risk and increase their strategic advantage.

Experienced trial lawyers know that those who are best prepared for trial are those best prepared to win. Justice is not distorted by the fact that some people prepare better than others. Justice is distorted when people do not have equal access to legal and consulting advice. The lack of equal access is a problem endemic to our legal and social system and has nothing to do with the application of social science techniques to litigation preparation.

People who are concerned about equal access to legal and consulting advice should support funding of public legal services, actively encourage legal professionals of all kinds to offer pro bono services to those in need, and work to counter trends of restricting public access to law libraries and legal information. Trial Behavior consultants do pro bono work and many are involved in activities to help improve fairness and access to justice in their communities.

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Q: Can you predict how a juror will vote by watching their body language?

A: The short answer: No.

The more subtle answer: A good social scientist observes all aspects of people’s self-presentation in public to try to understand them. You can deduce aspects of some people’s personalities by watching their body language. Understanding people’s personalities can be helpful in making judgments about possible predispositions and their fitness to hear your case. However, it does not enable you to predict something as complex and context-dependent as a person’s verdict in a trial. In fact, no one can scientifically predict a specific juror’s vote.

Furthermore, there is no "universal" body language. The way people use their bodies is shaped by social and cultural factors as well as by personality and individual genetics. In the U.S., with our diverse population, many people sit on juries who were raised elsewhere or were raised in the U.S. under a set of cultural practices with respect to the body that differ from the mainstream.

It is also very easy to manipulate and fool others who rely too heavily on body language. At mock trials, many attorneys get a shocking re-education when they see that the smiling lady in the first row, the one who they were convinced was with them all the way, rip their client apart in jury deliberations and lead the charge for a verdict against their client.

Finally, jury decisions are made in groups and group dynamics have a strong effect on shaping many jurors' verdicts.

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