Understanding the litigation consulting industry
It is not surprising that a certain amount of ambiguity and confusion prevails in connection with the trial or litigation consulting industry, in view of the fact that its key questions of concern revolve around forecasting what jurors will do in response to a dispute, its fact scenario, reactions to witnesses, and so on. Besides the inherent intrigue involved in questions of psychology and prediction of juror behavior, there are of course also significant economic issues surrounding the value of the case in terms of damage awards, whether and for how much to settle, and the potential for a runaway jury in many cases.
As interest in the field continues to grow, it also seems that the ambiguity and confusion grows with it. This article is an attempt to clarify terms of art that are necessary for meaningful communication and inquiry in this field and to provide some simple guidelines for the litigator to navigate through the many options available in harnessing the knowledge that can be obtained through use of its services.
First it is necessary to define some basic terms. For the field as a whole, we have seen the terms “Litigation Consulting;” “Trial Consulting;” and “Jury Consulting” used interchangeably. Recognizing, however, that not all cases go to trial (most settle) and that not all cases use a jury (many are bench trials or arbitrations), the term which is consequently most appropriate is “Litigation Consulting,” since the one application that all terms have in common is the context of litigation.
For reference to the practitioners in the field, the terms “Litigation Consultant;” “Litigation Psychologist;” “Trial Consultant;” “Jury Consultant” and “Jury Psychologist” may also be among the options used, and for the same reasons, those options which use the term “Litigation” are preferred. However, it should also be recognized also that use of a psychologist yields tactical benefits in a number of areas – a fact that is more or less self-evident given that the litigator is challenged with strategic issues that almost invariably deal with psychological factors, whether they be related to training a difficult witness; evaluating juror profiles; or designing jury research. Hence, the term “Litigation Psychologist” is the preferred term for the practitioner.
What does a Litigation Psychologist do?
Having had the requisite training in research design, implementation and analysis, the Litigation Psychologist is in a position to provide jury research that can perform several functions. In the realm of discovery, the notion of Directed Discovery pertains to the use of exploratory research (often called “focus groups”) to find out which themes and issues resonate with jurors. Directed Discovery can save considerable amounts of time and expense by closing off useless avenues of discovery or expenses connected to areas that are found to be irrelevant to jurors. For example, consider the quote from a lawyer in a recent case: “I just found out from the focus group that jurors do not care about the issues raised by this expert and so I can save $70,000 by simply not using him.”
Confirmatory research, on the other hand, is more formal and structured than exploratory research, often taking the form of “mock trials.” In these types of research designs, it is possible to obtain reasonably accurate estimates of the damages likely to be awarded in a case. These estimates are typically far more accurate than hunches or intuition and can save millions when such research results are used to determine for how much a case should settle. The use of scientific research in this manner is often called Settlement Sciences. The same research may also be used to determine the likelihood of whether a case can be in fact won if certain adjustments are made, in addition to assessing the probability that such revisions to the strategy will actually be successful. These calculations comprise the functions of Risk Assessment in connection with the research.
Besides the application of research to these types of practical challenges facing the litigator, the Litigation Psychologist prepares the trial team for the courtroom by training witnesses; general consulting; and juror profiling for jury selection. In very important cases, a Mirror JuryTMor “shadow jury” may be used to help the trial team make mid-stream adjustments during trial. The Mirror Jury is a group of about six individuals, matched to the actual jury, who watch the trial and provide evening feedback, delivered as reports to the trial team, in order to allow them to fine tune their case.
During jury selection, the Litigation Psychologist can also be helpful in assisting with the identification of particularly risky jurors who are likely to direct the case to an unwanted outcome. Those jurors who conceal bias while professing neutrality during the jury selection process are called Stealth Jurors. These dangerous juror types can only be detected by a trained psychologist who is looking for specific “red flags” in the jury selection process – for example, suspicious discrepancies between questionnaire data and oral responses.
How to choose a practitioner
The Litigation Consulting industry has no barriers to entry, no qualifications standards, and indeed no set guidelines for ethics or standards of care. We have seen practitioners come from the ranks of pre-school teachers, accountants, paralegals, acting coaches – the list goes on. Many trial teams make no secret of the fact that their main concern in choosing a practitioner is relationships rather than qualifications. So, the question arises, why should one care if the practitioner is in fact a qualified psychologist?
There frequently arise situations in which the answer to a question must be driven by scientific research results rather than hunches. It’s the difference between knowing – and knowing why – and guessing. Take, for example, a famous series of experiments conducted in which research subjects were asked to write essays that were contrary to their existing opinions on a topic, for example, gun control. One group was given a dollar and another group was given $25 to write the “counter-attitudinal” essay. Which group showed more attitude change in the direction of the contrary opinion? While the savvy reader will likely guess the answer will be at odds with common sense (it was the $1 group that showed more attitude change), it may not be as obvious that the general findings point to the conclusion that greater attitude change occurs in the context of lesser external inducement, not greater. This means that the most effective messages are those which just “leave the facts on the table” rather than forcefully advocating them. Would a non-psychologist have known this? Do you want to take that chance?
How to use a Litigation Psychologist
As we have stated in prior articles in this forum, the use of a Litigation Psychologist to train your witness(es) is the most cost-effective means to have the practitioner involved in your case. The entire case rests on your witness, and the deposition has a unique means of committing the trial team to key facts and positions in the dispute that become impossible to amend later. Experienced litigators know that “paving the way” in the deposition is a tried and true formula for optimizing the outcome of the case. Moreover, witness training is the most economical way to get a Litigation Psychologist involved in looking at your case early in the litigation lifecycle and providing initial feedback on the most beneficial tactical approach to preparation.
The Role of Cognitive Fatigue on Witness Performance