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This chapter begins with a brief description of the purpose of the book, which is to explore the multitude of roles for trial consultants, in order to describe the major activities they do (not just the misnamed “jury selection”), and to evaluate both their effectiveness and their ethics. The basic viewpoint is that trial consultants do a number of things that extend beyond the public’s casual awareness. It then discusses the field of trial consulting, the history of trial consulting, what trial consultants do, and criticisms of trial consulting. An overview of the subsequent chapters is presented.

This chapter evaluates the contributions of litigation consultants to the functioning of the legal system. It offers conclusions about each of the several activities described in previous chapters. It also evaluates how the jury system operates in the United States by a comparison with its counterparts in other countries.

Pre-trial small-group research (SGR) does not necessarily eliminate all surprises, but it can open the attorney’s and the client’s eyes to unforeseen problems or opportunities. The trouble with small-group research methods is that they don’t have the scientific rigor of other methods of research, such as the survey method discussed in Chapter 3. This chapter describes various SGR methods and their uses, as well as the methodological shortcomings and attempts by the profession to deal with those shortcomings through the development of small-group research guidelines.

When the decision is made to proceed to trial, the attorney’s strategy becomes relevant, beginning with construction of the opening statement, followed by presentation of evidence, questioning of witnesses, and closing arguments. Attorneys might look to various professional sources, such as Trial magazine, for advice on such things as timing and style of delivery of the opening statement, or appropriateness of an aggressive cross-examination. However, attorneys are also increasingly turning to trial consultants to assist them with trial strategies. This chapter describes the elements of a trial and evaluates the overall state of the research on jurors’ responses to various trial strategies. It then examines specific techniques used by attorneys at each stage of the trial, and evaluates the recommendations of trial consultants and legal professionals alike in light of empirical-research findings. Finally, it discusses the utility of attorneys’ turning to trial consultants for assistance with their trial strategies.

This chapter discusses the research on the effects of pre-trial publicity on jurors’ decisions, evaluates methods commonly used by the courts in an attempt to alleviate such effects, and reviews several highly publicized cases. It also examines the role that the consultant plays in the change-of-venue motion—a request to the court that the trial be moved to a different location. The most significant role played by the trial consultant in the change-of-venue motion is to construct and administer a survey designed to assess prospective jurors’ attitudes and knowledge regarding a specific case. However, data from such change-of-venue surveys have not always been allowed as evidence in court.

The ultimate goal of all trial consultants is an outcome that achieves success for their clients, whether it is a favorable settlement or the desired trial verdict. Since many of the cases lead to a trial by a jury, it is important to describe just what we know about how juries operate and what determines their verdicts. Knowledge gleaned from empirical research on jury deliberations dates almost entirely from the last four decades, but it is increasing at a rapid rate, especially with regard to juries in civil cases. Trial consultants need to make these research results available to their clients. This chapter moves beyond the empirical knowledge about courtroom procedures described in Chapter 5, to substantive matters relevant to the jury’s decisions.

Chapter 7 described how legal consultants sometimes administer sets of attitude statements that assess broad biases that many prospective jurors inevitably hold. This chapter examines how trial consultants may aid in jury selection using a different framework, one built on identifying the biases of jurors that are relevant to that particular case. Two cases are described in some detail; the two cases have similarities and differences. Both led to criminal trials, and in both, the side represented by the trial consultants had rather unusual challenges in finding jurors sympathetic to its side. In both cases, the trial consultants worked on a pro bono, or unpaid, basis (which is quite atypical). In one case, the consultants assisted the prosecution, which is also atypical.

This chapter examines the effectiveness of what is referred to as “jury selection” and evaluates the ethics of such a procedure. In describing the viewpoints of some of the critics of the process, it shows that, sometimes, discussions of ethics and effectiveness are confounded. Some critics seem to be saying “Jury selection by outsiders shouldn’t be done, and it doesn’t work anyway.” The chapter attempts to separate these issues, but in regard to each, the answer is not clear.

This chapter describes the procedures in the preparation of witnesses. Lawyers may lack the time—and, more importantly, the skills—to determine how effective their witnesses will be before the jury. Witness preparation is clearly a topic fraught with temptations to exceed what is ethical and legal; the chapter provides a framework for distinguishing among various actions in this gray area.

Given the fragile relationship between jurors’ demographic classifications or internal qualities and their verdicts, trial consultants have followed two pathways in advising and evaluating jury selection: a general approach and a case-specific approach. This chapter discusses each approach, and then focuses on strategies consistent with the general one.