Welcome

The hardest thing about being a jury consultant is having to explain your occupation (at length) at loud places and cocktail parties. I say at length because it takes at least two paragraphs to explain to the non-litigator what this occupation entails. And because I'm so passionate about this unusual industry, my answer usually takes 15 minutes!



Litigation (primarily civil) has always fascinated me! What determines which side in a case will win? The side with the strongest case is not always victorious. And sometimes it can be the smallest, most irrelevant factor that tips the jurors in one diection or the other (spooky, huh?)



Winning a case is as simple as making the folks in the jury box believe in you and your client. It's like selling a candidate's platform to voters, or selling a product to consumers.



The way the case is presented, the presenter (attorney), the likability of the Plaintiff or Defendant, as well as the jury profiles, can all influence the outcome of a trial. What makes a jury award $3 million to a victim of adultery, but only $200,000 to a wrongful death victim?



Mock trials and focus group are all categorized under "pre-trial research". The differences in the two are explained herein, but for convenience, I use them interchangeably, under the umbrella of "pre-trial research".



Whatever the term used, they are one of the most effective tools an attorney can use to prepare for the courtroom. If I didn't think so, I would not have spent almost 20 years perfecting this litigation tool (or weapon, I should say).



However, not all mock trials are created equal...



Many litigation consulting firms have made mock trials so costly and complicated, that they can only be justified for landmark cases. But what about the other 90% of cases, that are just as life-changing and meaningful for the parties involved?



This is what motivated me to create research methodologies that were less expensive, yet yielded dramatic findings. I hope you enjoy my experiences and insights in this intriguing industry.

Call me anytime to discuss your case. 407-556-7734































































































Monday, October 24, 2011

Engage your Jurors!

Out of the hundreds of cases I have been involved with, the biggest mistake attorneys make is not engaging their jurors.  Capturing and sustaining their interest is paramount in winning your case.  Graphics in the courtroom are now mainstream and can really reinforce your message, as well as stories and metaphors.  Which class did you prefer in school?  The one where the track coach read straight out of the book, or the class where the teacher invoked exhibits or a video into the lesson?

I worked on a bribery case for two years, hired by the Defense.  The key element we needed to translate to our mock jurors was that bribery is only bribery if there was an actual return of favor for the enticement.   The exchange has to include the "full circle".  A person an make some unethical and questionable "gifts" to a politician (for example).  However, it isn't bribery, unless the politician returns the gift with a deliberate favor. Explaining "quid pro quo" to a jury is like explaining Search Engine Optimization to my mother. We demonstrated this "full circle" by creating a graphic with a "B" in a circular graphic.  We also introduced stories that the juror could relate to, like offering a gift to a teacher...

We all want to be engaged and stimulated.  Even the most focused and scholarly juror will follow you better when you utilize graphics, stories and key words in your opening and closing arguments.  I have worked with firms that had prepared a PowerPoint presentation for the jury, but , in fact, had just put their script on the slides.  Each slide had paragraphs of writing--BORING!

When creating a PowerPoint presentation:
  -Keep the words at a minimum
  -Invoke graphics to reinforce the message
  -Keep it succinct

Always remember, less is more.  Edit your presentation 2-3 times to reduce redundancies and excess words.  You have such a short time to deliver your message, before a juror becomes bored and starts thinking about whether their child got home safely with the neighbor.  Look for obvious signs of boredom--lack of eye contact or, heaven forbid, yawning.  Look for moments when you pique the juror's interest.  Raised eyebrows or widened eyes usually demonstrate that you have just said something that really interests your jury.

Thursday, February 10, 2011

Best Recruiting Standards for Mock Trials

The success of the pre-trial research session relies heavily on the quality of the recruit.  Quality in this context refers to recruitment a group of people closely resembling what the actual jury will look like.  This does not include recruiting your ideal jury.  The purpose of pre-trial research is to develop a strategy for presenting your case at trial. 

If the "mock" jurors are far more educated than the potential jury, then the feedback from the research will be skewed to the wrong audience.  We often dealt with cases where the trial's venue was in a county with an average education level of eighth grade or less.  Sometimes, consultants want all respondents in the research project be able to read and write well, so they can offer good opinions in the questionnaire.  But the attorneys would not be able to strike everyone in the jury pool that was illiterate.  So why not structure the questionnaire using picture scales and more verbal feedback?  An effective litigator structures his/her courtroom presentation around the jurors.  If you were developing an ad for middle schoolers, you wouldn't use language that they wouldn't understand.

A screening questionnaire is designed to recruit the right respondents.  There are some standard questions that are in every legal research project.  You don't recruit anyone that would be ineligible to serve on a real jury panel:  non-citizen, full-time student, someone under 18, etc.  The next set of questions center around the security of the case.  If the case involves a trucking accident, you may want to eliminate people employed in the trucking industry, or especially those who work for the parties involved in the case.  However, you have to be careful not to be too exclusive, like eliminating people who have friends and families in the trucking industry.  Are you going to be able to strike everyone in the jury pool that has an acquaintance in this broad field?  Absolutely not.

Would you want a nurse on the jury of a medical malpractice case?  You may think the answer is NO if you're the Plaintiff or YES if you're the Defendant.  Actually, someone in the health care industry can be the harshest critic of a provider that is negligent.  The health care worker usually holds the hospital, doctor or nursing home to a higher standard.

The final part of a screening questionnaire centers around balancing the demographic quotas established at the onset (based on the trial venue).  Asking about the person's education, age, race, and occupation determine if there is still room in a quota group to invite that person.

A couple final recruiting notes to insure quality are:
  • Never reveal to the respondent who is sponsoring the research
  • Never disclose that it is a mock trial, until they arrive at the session
  • Never recruit people who are related or know each other (in a round table discussion, people may feel reluctant revealing their true feelings in front of people they know)
  • For security, screen out anyone in the research, legal or media industries
  • If someone doesn't qualify for the research, don't tell them the reason; their friend may call in and give false answers in order to be invited to the research session (money talks)
  • Pay the respondents enough money for their time, so that they won't blow off the research session if a better gig comes up at the last minute.
  • If the project has to be postponed or is cancelled, compensate the respondents in some way.  After all, they probably asked off to participate, so they were counting on the money.

Tuesday, February 8, 2011

Costs of Pre-Trial Research

Many attorneys feel that focus groups and mock trials are only for huge cases.  This perception is not unfounded, considering the huge price that some litigation consulting companies charge.  Here's a closer look at what you should reasonably expect to pay for a focus group or mock trial.

The costs are mainly contingent on the length of the research session.  A large part of the research project's expenses are devoted to respondent incentive fees.  These are the cash stipends paid to the research participants to attend the session.  An average project requires the recruiting of 32 people (best recruiting standards for respondents are covered elsewhere).  For a five-hour research session, participants are paid about $100 in smaller markets and $150 in larger markets. 

The other large expense for a mock trial is the cost to recruit respondents.  The consultant will contract this task out to a professional recruiting company.  Depending on the difficulty of the recruit, the charge to recruit 30 respondents can be $1500-3000.  The costs to pay and recruit the respondents can be 1/2 to 1/3 of the entire project costs.  And the consultant makes nothing from these items.

The third factor in estimating the costs of a research session, are facility and food.  It's nice to be able to hold the session at a focus group facility, with one-way mirrors.  The facility has built-in audio and video recording and can handle the food for clients and respondents.  However, this convenience is not cheap.  A facility in a major market can charge $3000+ to use their accommodations for the day, as well provide food and a hostess to greet participants. 

Over the years, the cases for some of our venues were in such small, rural towns, we held the session in hotels, library meeting rooms and even a fire station or two!  For these locations, we set up monitors in an adjacent room so the clients can view the comments via closed circuit monitoring.  The feedback was just as profound, it's just  lot more work on the consultant.

Facility, food, hostess, recruiting, and incentives to pay 32 respondents for a five-hour research session an have a base cost of $6500-$12,000.  Some firms place a hefty consulting fee on top of this, charging $50,000+ for the session.  I owned my own recruiting company over the years, so I was able to charge $10-12,000 for a research session with two deliberation groups, including facility, recruiting, and stipends.

My first client was a law firm that had paid $50,000 for a mock trial and really didn't want to pay that price again.  They approached me to see if this was something I could handle, since I was already a seasoned political, social and marketing research consultant and moderator.  We agreed that I would do the consulting for free, and they would cover all the hard costs (facility, incentive fees, etc).  This was a learning experience, and if they would be patient with my learning curve, I could charge them for future projects.

The research session was such a success.  Of course I wish I knew then what I know now.  The client ended up with a $5 million verdict at trial.  And they became my biggest fan and reference, using or recommending me to at least 50 other case over the years.

Monday, February 7, 2011

Never Invite the Plaintiff or Defendant to a Research Session

For a focus group or mock trial to produce the most usable feedback, sometimes the moderator/consultant has to play devil's advocate to get to the bottom of the participants' opinions and biases.  This means challenging the depth of the respondents' views, or forcing the participant to defend his/her views.

While I have had the privilege of working on a myriad of cases over the years, I have actually worked on three alienation of affection cases.  Simply, if a spouse cheats in a marriage, the other spouse can sue the "mistress" for damages.  All three alienation cases I have worked on involved the wife having the affair, and the husband had filed a claim against the man with whom she was having the affair.  This could be due to male pride, or the fact that there is generally more money to be sought from a man than a woman (most mistresses don't earn $300k/year).

In one case, the Plaintiff had been a house husband.  His wife was a physician and had an affair with a surgeon.  Without warning, my client (Plaintiff firm) brought the husband to the research session.  Immediately, I knew that I would not be able to thoroughly probe the respondents' biases against a man wanting to sue another man for millions, as well as the stigma in the South against house husbands.

As luck would have it, once the round table discussions began, the "good ole boys" in the group had some choice words for the Plaintiff.  I felt very uncomfortable exploring those views with the husband right behind the one-way mirror.  Finally, we took a short break and I relayed my concerns to my client.  He sent his client away early, and we ended up getting some great information.  The Plaintiff was actually awarded $3 million at trial!

The Death of the Live Presentation in Mock Trials

The most traditional format for mock trials is having attorneys present the arguments of both sides.  The session can be as simple as each attorney making a single 15-minute presentation, to a full-blown project with witness testimony, cross examinations, evidence, a judge, etc.  (My longest mock trial lasted 5 days).  When I first began jury consulting in 1990, this is the method I embraced, as well.  However, by chance, I was conducting a research session for a power company when a new approach emerged.

It was a personal injury case where a woman  had driven into the back of an electric truck during an ice storm.  There was a pole extending out the back of the truck, which rammed through the car's front window upon impact.  The Plaintiff sustained a major head injury and claimed that the utility worker did not put out the proper warning cones to warn oncoming traffic of the truck being parked in the street.

My client on this case was the Power Company.  The night before the research session, the attorney that was supposed to be presenting the Defendant's case became ill.  We faced the propsect of calling 30 respondents ("mock jurors") 10 hours before the session and cancelling.  Since most of our sessions take place during the week, many of these people took off work to participate in the project ($100 cash is a good enticement).  It would have only been right to pay them the $100 stipend promised.  Having to pay them again two weeks later would have cost the client another $3000.

I hate to waste money, so I tried to salvage the research session.  I offered to narrate the group, presenting both side's arguments in a neutral fashion.  The clients were perceptive to the concept.  I stayed up most of the night creating a case description based solely on the facts of the case.  My idea was to present a "bare-bones" description of the case, get the groups reactions, then feed them some strong Plaintiff and Defense arguments one at a time thereafter, getting their reactions on each argument.

What grew out of this research session was the most reliable, insightful research methodology I've come across in the last 20 years.  By feeding the "jurors" small pieces of information at a time, we can pinpoint the strengths and weaknesses of the case more effectively.  Eliminating the attorney presentations removes the personalities from the case, which only makes sense since the client can never duplicate the personality of the attorney that will be presenting at the real trial.  My clients were very pleased with the session.

Attorneys love this format because they can attend the research session and concentrate on the opinions of the participants, rather than worrying about their presentations.  When comparing the actual trial verdicts with the verdicts reached at the research session, our signature methodology is always closer to the actual outcome.

There are rare circumstances where live presentations are warranted in the research.  An attorney might want feedback on their presentation style or image, or the client may want to compare the order in which they deliver the content.  (ie:  is it better to throw out a weakness at the beginning or the end?)

The exciting part of this work resolves around adapting a research session that will generate the most usable information for your client.  It's definitely more of an art than a science.

Sunday, February 6, 2011

Don't Try to Win Your Mock Trial

If all clients would approach a research project as a learning experience, and not a contest, the end-results would be more beneficial.  One of the biggest mistakes I've seen in the litigation consulting industry is the client trying to win the mock trial exercise.  Since one side (Plaintiff or Defendant) is sponsoring and paying for the mock trial, it's not too hard to manipulate the information presented to the "jurors".    Imagine walking into the courtroom without your opponent being allowed to speak or cross-examine! 

I've seen attorneys so angry that a juror can't embrace their views, or that the end verdict was not for their side.  I've tried to urge them to concentrate on why that juror holds those perceptions, or what can be said or presented to change those views.  Misconceptions are often founded on misinformation.  Repackaging the message can make a huge difference in the real trial.  Listening to the respondents (mock jurors) can open up so many doors.

The smartest research strategy is to present your opponent's case stronger than yours.  Use every weapon and argument they could possible use at trial.  When making live presentations during mock trials (which I'm mainly against) the clients tend to let the attorney that has lived with the case for two years to present the case to the "jurors".  Then they will select an attorney that is barely familiar with the case to present the opposing side.  The group is swayed by the passion and knowledge of the client.

Once, a Defense firm literally grabbed an associate the day before the research project to present the Plaintiff's side.  The poor guy mispronounced the accident victim's name several times.  The research participants mutilated him in deliberations.  "He obviously doesn't care about his client, he can't even say his name correctly", stated a juror.   And in a moment, the emphasis shifts to the personality of the Plaintiff attorney, who won't even be at the real trial.