One juror crosses her arms -– she's having a difficult time believing the witness's testimony. Another juror taps his foot –- he's bored. A red necktie looks too aggressive and intimidates the jury panel. Eyeglasses improve how intelligent you sound to the jurors. Navy blue looks trustworthy.
Bunk. The first juror thinks the chair she's sitting in is uncomfortable. The second juror has a twitch. Looking clean and presentable is more important than planning wardrobe around someone's perception of color and grooming. This type of trial consultancy, though, is flashy. It's sporty. It sounds like it should make sense and be useful.
Some trial consultants tout a "psychic connection" with the jury panel. They claim to be able to read clues from body language to give an attorney the edge over his or her opponent, clueing in on what jurors find interesting and credible. Their "research" has taught them to look into color theory and clothing design for ways to enhance a person's image.
Unfortunately, this "research" doesn't explore any of the themes or messages of a case. Appearances count and first impressions may be everything but when the jury panel is deliberating behind closed doors, the meat of the presentation will be the main course.
Trial consultancy based on the opinions of one person "monitoring" the jury panel is nearly as effective as predicting the outcomes of an election by asking only one person on the street. This "jury of one" doesn't present a clear picture of how a jury of peers may perceive the themes and messages of a case.
There are many services that can be provided by a jury consulting firm. These services are based on scientific methodologies. Through pre-trial research –- such as focus groups and opinion surveys -– a very clear and very accurate profile is developed allowing researchers and attorneys to work together. Themes and messages are formed and tested, then revised and re-tested. Each test highlights growing strengths and helps prepare attorneys for weaknesses in a case.
Other services allow an attorney to delve deeper into the workings of his case. Mock trials test a case before a mock jury that mirrors the demographics of the potential jury panel. Immediate feedback affords the attorney an opportunity to fine-tune message points. In the case of a bench trial, a panel of judges serves as a sounding board and focus group for an attorney, allowing points of law to be discussed and argued.
Venue and verdict analysis places emphasis on researching past cases and jury panels, finding trends based on the parties involved, the sitting judge and demographics of the jury. This type of research is a starting point, giving an attorney an idea of the outcomes of similar cases –- a past history foreshadowing what may happen.
All of these litigation services are based in science. Though crafting a questionnaire that eliminates unwanted subjects or digs deep into a subject without introducing bias is an art form in itself, analyzing and being able to use the date returned by research is a science. Trained and experienced professionals bring the greatest success to an attorney and his or her client.
Many trial consultants offer services that are little more than thinly-disguised attempts to "make over" an individual, changing superficial images. These may be based in some sort of science. In law, though, message delivery has more impact than the color of the suit an attorney chooses from the closet.
Blankenship is a senior vice president with RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has executed extensive public relations plans and litigation research projects for clients throughout the nation during the last 20 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.