Trial Consultants Active Behind Courtroom Scenes
These lay experts offer an array of services like research and jury selection counsel
BOSTON — THE top-gun lawyers and forensic scientists on O.J. Simpson's defense ``dream team'' may soon be joined by other experts armed with survey data and focus-group videotapes. They are trial consultants, and these days few high-powered criminal-defense or civil litigation teams are without them.
According to Laurie Levenson, law professor at Loyola Law School in Los Angeles, Mr. Simpson's lawyers have contacted several well-known consultants. They include JoEllan Dimitrius of Los Angeles, who worked with the defense attorneys in the Rodney King and Reginald Denny cases.
Legal consultants are best known for helping lawyers select jurors who, based on the consultants' research and observation, are likely to favor a litigant's case - or who at least aren't biased against the case. But the once-common term ``jury consultants'' is giving way to ``trial consultants,'' as these experts become increasingly involved in all aspects of trial preparation and conduct.
Even that term is too narrow, though, consultants say. ``Many of us prefer to describe our work as litigation consulting,'' says Gail Pearl, a consultant with Starr Litigation Services in West Des Moines, Iowa, and a former president of the American Society of Trial Consultants. ``We assist lawyers in settlement negotiations, mediation, and arbitration proceedings as well as in court trials.''
The popular image of trial consultants is still that of the guru who, listening intently to potential jurors and watching their every gesture and blink, quietly advises a lawyer to accept or ``strike'' jurors during voir dire questioning. Drawing on training in psychology or sociology, such consultants seem almost to read the minds of possible jurors.
Ms. Dimitrius and some other consultants do seem to have uncanny insights about people's attitudes that aid in jury selection. But some consultants shy away from what one calls the ``intuitive model'' of consulting.
Dimitrius worked briefly for Litigation Sciences Inc., based in Culver City, Calif., one of the largest trial-consulting companies. But her style didn't quite fit with the firm's approach, says Mark Phillips, director of Litigation Sciences' Boston office.
``We believe in the law of large numbers, in the predictive reliability of extensive survey data,'' Mr. Phillips says. ``Our strength isn't in reading tea leaves and evaluating nonverbal communications,'' he says, adding that he respects Dimitrius's skills.
Trial consultants offer a wide array of services besides counsel in jury selection. Through questionnaires, mock trials, focus groups, shadow juries, post-trial interviews of jurors, and other techniques, they help lawyers identify issues that might preoccupy jurors (which may be different from the legal issues that lawyers focus on), select and hone persuasive arguments, and develop trial strategy.
They also coach lawyers and expert witnesses in communications skills, such as translating legalese and technical terms into everyday language.
``Jurors have a different world view than lawyers have,'' says Susan Macpherson, a consultant with National Jury Project in Minneapolis. ``We try to help lawyers get access to that view, so they can learn from it and communicate with it.''
``Our job is to make trials more jury friendly,'' says Robert Duboff of Decision Research in Lexington, Mass.
Trial consulting began with a group of social scientists who formed National Jury Project in the late 1960s to address problems raised by a spate of nationally publicized criminal cases, including prosecutions of Vietnam War protesters. Could the defendants in such cases get a fair trial anywhere in the United States, given the extensive media attention they had received?
``It wouldn't be enough just to move such cases to the next county,'' Ms. Macpherson explains. ``People realized that finding impartial jurors in these cases required sophisticated, interdisciplinary social-sciences research into jurors' attitudes.''
Today National Jury Project is a full-service trial-consulting enterprise, but it still does research - sometimes commissioned by judges - to improve the jury system as well as for individual litigants, Macpherson says.
Consultants like Dimitrius have won fame in criminal trials, but many consultants work mainly in civil cases. Litigants in large civil cases, which often are corporations, can afford expensive consultants more readily than most criminal defendants can. But many consultants provide pro bono, or no-fee, services to clients in both criminal and smaller civil cases, says Ronald Matlon, executive director of the American Society of Trial Consultants.
The society, formed in 1982 with just 15 members, now has more than 350 members.
Some lawyers remain dubious that skillful courtroom attorneys need consultants. But ``a lot of those lawyers think they're Clarence Darrow,'' says Edward Ricci, a lawyer in Palm Beach, Fla., who represents plaintiffs in vehicle-crash cases. Mr. Ricci values the help he has received from Amy Singer, president of Trial Consultants Inc. in Miami, in about 100 cases. The lawyer says he gains useful insights from the people Ms. Singer assembles for mock trials and focus groups.
``Lay people with common sense often see things about a case that lawyers, with our specialized knowledge, can't see,'' Ricci says.