Lawyers are experts on the law; they know the client and they know the case. Psychologists are experts on human behavior and provide expertise on the human dynamics involved in the litigation process. The perspectives of lawyers and psychologists are unquestionably different. A consulting psychologist provides a perspective that complements the skills and knowledge of the litigator. Attorneys hire experts in many disciplines to prepare a case. Psychologists provide knowledge that integrates all of the human dynamics in the case, including issues relating to experts, judges, attorneys, clients, witnesses, and juries. Magnus does not replace the litigator; rather, it supplements his/her skills in maximizing the outcome for the client.
Officially there are no qualifications required for someone to claim to be a trial consultant, that is, there are no licensing requirements which would mandate academic or experience thresholds. However, Magnus believes that there are factors which determine whether someone is qualified to hold themselves out as a trial consultant for hire. These factors include graduate education and degrees in certain fields, such as the social sciences (psychology, sociology, criminology), in communications, or in related fields, such as consumer/marketing research. The consultant should be well versed in research methodologies, statistics, and various kinds of quantitative and qualitative procedures, as well as the law and legal process.
Trial Consultants are expected to offer their expert opinions. They should be experts by virtue of their training and they should be able to support their opinions with a relevant knowledge base.
Trial Consultants are not usually lawyers, though some are. However, it is precisely because trial and jury consultants offer knowledge and skills that complement or supplement the trial attorney’s skills, that the perspective they offer as non lawyers can be so valuable.
One caveat, because the term “trial consultant” is broad, consumers of such services should determine what types of services a particular consultant provides and whether that individual has the appropriate qualifications for the specific service needed.
When faced with the task of hiring a consultant, the factors which should be most important are: consultant qualifications (including academic training), experience as a consultant, relevant case experience, the experience and resources of the consulting team, venue experience, research design, range of services, reporting practices and deliverable product, and ability of the consultant to work effectively with the trial team.
The decision should be made with careful thought, by the trial team leader. Price was not mentioned in the important factors because, while the cost is important, hiring the wrong consulting firm is the most expensive decision, even if it has the lowest price. What is important is the value for the money spent. In determining the value, pay careful attention to what is included in the fee quote from the consultant. Some consultants, like Magnus, offer “package” pricing that includes the cost of the mock jurors – a cost which is significant, especially when the mock jurors are recruited properly, (see FAQ #8). Other consultants treat this as an additional billable expense.
Magnus provides case specific proposals with fee estimates. Travel and facility related expenses are the only significant cost above the quoted fee.
Magnus has the qualifications, skills, and credentials that exceed those possessed by even the largest firms in the industry. In fact, Dr. Melissa Pigott, Magnus’ Director of Research, is one of the foremost researchers in the country in the field of jury psychology. To our knowledge, Dr. Pigott is the only full time consultant who maintains an academic style research and publishing program. This regimen places Dr. Pigott at the forefront of psychological research on jury decision making. In addition, while Magnus possesses the critical requirements in terms of the skills, abilities, and experience necessary in a jury or trial consultant, given our size and structure, we can be more flexible, more responsive, and more client oriented than other firms in the industry. Magnus performs its work with the utmost concern for professionalism toward all participants, objectivity regarding all case details through the use of scientific principles, and dedication to the ethical performance of all consulting assignments.
Magnus conducts a large amount of mock trial and focus group research prior to mediation to assist in the assessment of settlement offers or demands. Knowing what likely fact finders will decide is of great assistance in making an educated decision about a settlement arrangement. In addition, conducting research prior to mediation or arbitration allows the litigator to strengthen his/her case before making the presentation to the mediator or arbitration panel.
In many ways, the terms mock trial, focus group, and jury simulation are generic and interchangeable. However, for Magnus, a mock trial is vastly different from a focus group. The services section of this website explains the particulars in more detail, but at a basic level, for Magnus, a focus group is nonadversarial while a mock trial is a sophisticated jury simulation involving adversarial arguments and usually involving witness evaluations. Smaller scale mock trials have different names, for Magnus, these include our Case Strength Evaluation Research and Case Overview Research.
Magnus hires a professional marketing research firm to recruit the mock jurors. The jurors are jury eligible citizens in the trial venue; they are not professional jurors. They are recruited for mock trials and focus groups based on criteria developed by Dr. Pigott that reflect jury composition and exclude “challenges for cause.” Specific cause challenges may be provided by the client and incorporated into the recruitment criteria.
Magnus’ clients are skilled litigators handling significant litigation. Magnus has experience working on a wide variety of cases (see Case Experience) and working for both plaintiffs and defendants. The majority of our work involves civil litigation; however, we have considerable experience in the criminal law arena as well.
Magnus has considerable experience working on commercial cases. Commercial cases are often more complex and have longer histories than tort cases. As such, they may require multi phase research design using focus groups, mock trials, witness preparation, and other services to resolve successfully. Magnus helps simplify, streamline, and clarify case details that need to be presented to mediators, arbitrators, a jury, or a judge. In addition, litigation in commercial matters is sometimes seen as “a part of doing business” and, given this philosophy, mediation is seen as the mechanism to resolution to avoid courtroom surprises. Having insights as to how jurors, or other fact finders (see FAQ #3), will respond brings some measure of certainty to the process and will help the commercial litigant evaluate the desirability of a negotiating position and even the desire to proceed to trial. Commercial litigation is also often between parties with long working relationships or the desire to form long relationships, but whom have come to a disagreement. Again, with the understanding of the “upside or downside” of continued litigation provided by jury research, commercial litigants – business people – can make business decisions about resolving cases. Finding a win-win solution for the parties indicates that the litigator and the consultant were successful.
Jury consultants provide information and resources, as well as ways to evaluate a case through the eyes of objective professionals. Due to wide ranges of experience, education, and professionalism among jury consultants, there are misunderstandings about the impact jury consultants can have on the trial team. Magnus employs the scientific method to conduct research for our clients. Discussions about the limitations of results generalizability are incorporated to ensure that clients are achieving their goals within reasonable budgets. The perspective and feedback provided by a jury consultant can provide the edge to achieve success in litigation, and can assure your client that you are doing everything necessary on their behalf.
Magnus provides custom designed research methodologies, with services available for all case types, from easily comprehensible, relatively small cases to complex, large damages cases. Magnus will provide written proposals containing case specific research designs and fees upon request. Magnus strives to provide its services at reasonable prices; the scope of mock trials or focus groups depends on many factors. Customized research programs are designed with clients’ input and Magnus’ expertise. Magnus’ end product is both quality oriented and value based. The costs involved in quality research can be significant. Costs of juror recruiting and a significant time investment of highly trained professionals before and after the day(s) of actual research in the field are important considerations. Considerable time is spent in preparation, document review, questionnaire development, data analysis, consultation with clients, and report preparation. Research is an investment in information. Just as companies test products before introduction to the market, mock jury research allows attorneys to test their product – a lawsuit – before taking it to the jury where the attorney has only one opportunity to make the “sale.”
Clients often need education regarding how the expertise of a jury consultant can assist them in the overall litigation process. Without a doubt, litigation is expensive and clients must evaluate the effectiveness of each expenditure. Effective fact finder research can be one of the best investments in a case because the information gained creates efficiencies of time and energies. In addition, the enhancement of the quality of decisions, while difficult to quantify, is real. Thus, clients need to be informed of the benefits of the research process. When necessary, Magnus is willing to meet or confer with clients to explain our role in the process.
There are some jury or trial consultants who work on a contingency basis. This usually applies to cases for the plaintiff, of course. The ethical implications of these arrangements have not been well considered by Bar organizations at this time. Magnus believes there are serious negative ramifications of this practice. Dr. Pigott has researched the ethical standards of the American Psychological Association, among others, and it is her opinion that these guidelines prohibit such arrangements due to the potential abuses that could arise from them. Magnus will gladly provide a more detailed explanation of the ethical issues related to this practice upon request.
While some attorneys conduct mock trial research in-house, with or without the use of trained jury consultants, the benefits of hiring an outside consultant are many. While these benefits include allowing the consultant to handle all the preparations in a turn-key fashion to take this pressure off the trial team, the main reasons trial consultants are employed are first, to allow them to provide objective, scientific evaluation, utilizing knowledge of psychological principles as they apply to litigation; and second, to enhance the effectiveness of the trial team. In other words, Magnus brings to your trial team consultants with doctorate degrees in psychology who are experts in human behavior and who have years of experience in transforming research results into meaningful, high impact, trial strategies.
Because Magnus offers custom designed research, we have the flexibility to assist attorneys with what they consider to be “small” cases. Magnus is willing to discuss consultation on any case to determine how we may be able to assist within a given budget. Particular attention should be given to cases which fit a pattern, that is, cases with similar fact patterns for which prototypical research can be conducted with the costs of mock trials or focus groups spread across a number of cases. Furthermore, Magnus is available to prepare voir dire questions, assist with jury selection, and brainstorm when the attorney believes the case does not warrant jury research.
Magnus’ trial consultants have been engaged from time to time by attorneys who had come to believe their cases were not as strong as they once thought. Some attorneys hire us in these situations to see if they have missed something and perhaps the case can be turned around. Other times we are hired to provide a reality check for their client. Plaintiff’s attorneys sometimes need to use a mock trial to demonstrate the downside of a trial (and the upside of taking the money which has been offered) to unrealistic plaintiffs. Defense attorneys sometimes need to show their adjustor clients, or corporate clients, that the case has significant risk at trial. In either scenario, knowing the potential outcomes can lead to making the best of a bad situation and can offer some degree of protection to the attorney to demonstrate that he/she took all reasonable steps in the litigation of the case.
Research can be conducted to test a case before mediation, bench trials, or arbitration panels. Magnus recruits the appropriate fact finders for the type of proceeding. When it comes down to it, any fact finder – jury, judge, mediator, or arbitrator – are human beings with emotions, biases, attitudes, and personalities that impact decisions. As such, conducting mock mediations, bench trials, or arbitration panels is a logical preparation for trial.
Magnus is available to conduct focus group or mock trial research and to consult at all intervals of the case life cycle. Early on, we may be retained to use a simple focus group to evaluate whether a case should be filed; after a case is filed, we are involved in research that can be of assistance during discovery; after discovery is underway, research is conducted to evaluate the case prior to mediation; and of course, we are often called upon prior to trial to provide mock trials to serve as a “dress rehearsal.” Some mock jury research can be conducted during or after trial depending on the nature of the case. The point to remember is that no matter where the case stands, Magnus can provide valuable assistance – the advantage of information with which to make informed decisions.
The answer to this question varies with each case. Often a member of the trial team takes on this role, but in addition, Magnus has consulting attorneys available to handle this role. For further information about using one of Magnus’ consulting attorneys, click here. For pointers and tips on role playing the opposition, or having a member of the trial team do so, click here.
Typical project time, from start to finish, is four weeks at a minimum. Very often, however, Magnus is retained on cases months or years prior to trial. In such cases, Magnus provides consultation or focus group / mock trial research services as a case is developed. Magnus’ involvement can result in time efficiencies for the litigator because we focus on preparing the case based on the key concerns of the fact finders. Magnus’ client, the litigator, must make a time commitment on the project, typically including preparing materials for Magnus, briefing the consultant, and making a presentation either on videotape or live during the day of research. Wherever possible, Magnus endeavors to minimize the attorney’s time responsibility for the project, to make the process as effortless and efficient as possible for our clients.
In most instances and for most services Magnus provides a comprehensive, custom written report on the case approximately three weeks after the research day. Clients are also provided with video recordings of the deliberations for their own review. Some clients prefer oral reports instead of, or in addition to, the written report. Magnus has received many compliments on its reports over the years from clients who have compared them to reports from other consultants. For more information on Magnus’ reports, please click here or contact David Fauss.
Magnus is retained by and consults with the litigator. Our work constitutes attorney work product in the same manner as the work of other experts. Florida Statute 90.502 outlines the Lawyer-Client Privilege in the state; other states’ statutes should be consulted as necessary.
Magnus can incorporate witness evaluation into the research process or create stand-alone witness evaluation research. In addition, witness preparation services are provided to assist witnesses, expert or fact, with their testimony. Witness preparation services focus on teaching the witness to perform effectively while testifying in a deposition or at trial.
The answer is simple. Magnus has a strict “no comment” policy that prevents all of its consultants from speaking with the media. There are no exceptions and here is why. First, suppose a consultant is generally available for comment, but all of a sudden cannot make a comment on a given case. Any media professional would know immediately that the consultant cannot comment because the consultant is involved in the case about which comment is not made. This “no comment” would then violate the confidentiality the consultant owes to the client in the matter in question. Second, think about jury selection. The last thing a trial attorney and the client should want is for prospective jurors to notice a jury consultant they have seen on tv present in the courtroom assisting one side of the case. It is the attorney, not the consultant, who should be “high profile.” Thus, in the long run, media publicity benefits the consultant at the expense of the client.
We measure success in many ways. We conduct client satisfaction studies and interview our clients about how our analyses were borne out in the results they receive at mediation or trial. We also monitor client retention (repeat business) and referral rates (new clients referred by existing clients). We are proud to say we are doing well in all of these evaluations.
More technically speaking, it is scientifically impossible to quantify a success rate for a litigation research consulting firm. Just as it is impossible for attorneys to calculate a valid success rate (for example, could any attorney calculate whether he or she did better or worse than another attorney would have with the same jury, case, & judge?), there are no valid ways of deriving statistics on case outcomes.
A discussion of few other issues may help explain why such calculations are not valid.
- There are so many variables involved in a case that it is not feasible to test all of them in typical mock jury research methodologies, as a result we concentrate on problematic issues.
- The opposition is simulated in the typical research design and the case is abbreviated both as to issues noted above, and the use of any witnesses.
We are hired on cases with problem issues, facts, clients, etc.; the types of cases we work on are not a random sample of all cases.
- We provide numerous recommendations in our reports, however, we have no control over their implementation at trial.
There are things no one can control, for example, rulings by the court, actual performance of witnesses, the venire on a given day, etc.
- From a scientific perspective, there is no control group. There is no way to measure the case outcome both with and without the assistance of a jury consultant.
- The job of a litigation research consultant is to minimize uncertainties, test strategies, work through problems, and evaluate likely outcomes. Once we are involved, the dynamics of a case change, and we think for the better, based on the metrics described above. It is for these reasons that no consultant who is a legitimate research scientist will quote a success rate; indeed, the American Society of Trial Consultants, asserts that quoting success rates is an ethical violation of its canons.
Courts in many jurisdictions have been ordering Summary Jury Trials as a way to “encourage” attorneys to settle their cases. A number of Magnus’ clients have been through this process and have reported their experiences to us. In the Summary Jury Trial process, the Court assigns a “trial” date to the parties and sets up a one or two day trial using as jurors those who were not selected for other trials. The parties present an abbreviated version of their case and then one or more juries deliberate and reach a verdict which is then reported to the parties.
Based on the feedback we have received from clients, there are a number of issues that hinder the usefulness of this process. These include:
- Voir dire is limited or non existent. Keeping in mind the jurors used for this process are often those who have been de-selected in other cases, the potential biases of the jurors are not controlled in any way.
- The presentation is abbreviated and witness testimony is limited or nonexistent.
- The results of this process are non binding, but the feedback is shared by both sides. This is the biggest concern pertaining to Summary Jury Trials.
The accuracy of the “verdict” is highly suspect. Because of the combined effect of a non binding process AND that both sides will hear what the jurors will have to say, many attorneys have expressed their reluctance to “show all their cards” in the Summary Jury presentations. As a result, we have been told of experienced trial lawyers making weak presentations, whether intentionally, because of a lack of preparation, or due to a lack of interest in the outcome. In some cases, associates were allowed to present at the Summary Jury Trial as a way to get some “trial” experience.
The questionable usefulness and accuracy of the procedure is demonstrated by an example wherein one of Magnus’ defense clients went through the court ordered summary jury trial, with his adjuster present, and it resulted in two defense verdicts. Magnus’ client reported that the highly respected, very successful, plaintiff’s attorney made a lackluster presentation. The very next day Magnus conducted mock jury research for this client and the adjuster was also present when there were 3 plaintiff’s verdicts. It would appear that the attorney who role played the plaintiff’s case was more successful than the real plaintiff’s attorney! Fortunately the client/adjuster had the results of the mock jury exercise to help him in making an informed decision to resolve the case.
Of course, in mock jury research, there are differences from actual trials that limit our ability to predict the trial outcome. However, in Court ordered Summary Jury Trials there is pressure to settle the case based on the “verdicts” rendered. In contrast, mock jury research is designed as a learning process and a way to test worst case information in a setting where only 1 side of the case is privy to the outcome so that the case can be refined and problems debugged. While the verdicts are still merely indicators, not predictors, there is no disincentive to hold back and not test potentially harmful case details. It is a very significant difference that the opposition is not participating!
You may not be able to avoid a Summary Jury Trial, and it may be somewhat informative, but it may also be counter productive and harmful to the parties involved. How you handle it requires significant thought given the difficult issues presented by the process. But, a Summary Jury Trial does not replace mock trial research; they serve 2 different purposes. Mock jury research ensures that you are doing all that you can do to help yourself and your client prepare for a real trial.
- Trial consultants are only useful for trials – not anything else. See information about the usefulness of mock jury research for mediation, including risk analysis, reality check, leverage, etc. Check FAQ # 6 and click here for more information related to this point.
- Jury/trial consultants only work on jury matters. See FAQ 18 regarding arbitrations and bench trials and click here for more information related to this point.
- All trial consultants are the same. See FAQs 2 and 4 related to qualifications, hiring decisions, etc.
The reasons that using a trial consultant like Magnus is imperative are:
- To gain the competitive advantage. The legal market is competitive, more so than ever. In today’s environment, attorneys need all the expertise available to enhance trial preparations.
- To ensure that you are doing all that you can for your clients.
- To gain knowledge and insight that is not available from any other source.
- To build and maintain an uneven playing field with regard to your opposition.
- To improve your litigation successes – and minimize negative results.
The Bottom Line: Jury or Fact Finder research ensures that the attorney has done everything possible to aid a client prior to mediation or trial.
Through the use of written confidentiality agreements, reinforced with verbal warnings, Magnus endeavors to do everything possible to prevent mock jurors or other fact finders from breaching confidentiality. Client identity is never divulged by Magnus; thus, mock jurors never know which party has commissioned the research.
While the premise of the TV show, Bull, is based on Dr. Phil McGraw’s life as a trial consultant, the reality ends about there. Bull, staring Michael Weatherly (formerly of NCIS), is entertainment, and like the movie Runaway Jury, is replete with unrealistic and unethical behaviors on the part of the show’s characters. Trial and jury consulting is not as dramatic as Hollywood would lead us to believe. Trial consultants do not solve crimes. Trial consultants are not aggressive towards their clients. Just as lawyers, police officers, medical professionals, and (animated) nuclear power operators are portrayed in ways that any professional in those fields would find unrealistic, the disconnect between the realities of trial consulting and the world of television entertainment is vast. Bull is entertaining, but it is not reality. Neither trial consultants nor their lawyer clients engage in the invasive behavior with mock jurors or actual jurors as portrayed in both Bull and Runaway Jury. A message to clients of Magnus: Never fear, we’re real; we don’t provide Hollywood magic. Bull is fiction. Magnus is reality.
This service involves recruiting participants who match the general traits of actual trial jurors as closely as is reasonably possible and having them observe the actual trial on a real time basis. The process is intense, challenging to manage, and expensive. But, it is real. The reality is that it is not as precise as the “Mirror Jury” conducted by Hollywood and the TV character Dr. Bull. The term “Shadow Jury” was coined by a pioneer in the trial consulting industry and was trademarked by Litigation Sciences. The term has been in common use for decades. Mirror Jury and Magnus’ own Silhouette Jury Panel are synonymous. For more information click here, an article from 2’s Company blog about mirror juries.
Some people, including many attorneys, wonder if there any science to a trial. Many trials involve forensic science, experts, engineers, and more, but the concept of “trial science” refers to the science of evaluating and forecasting trial outcomes. This is the domain of trial consultants, also known as jury consultants or litigation consultants. Trial consulting is derived from social science, including social psychology, research psychology, statistics, and more. There is a science to trials, but only when litigation consulting is practiced by scientists. Unfortunately, not all so called trial consultants are trained in behavioral sciences, so consumers of these services must be aware. But, more than some clients and prospective clients realize, there is a science, and perhaps an art, to the work of trial consultants. For more information click here, an article from 2’s Company blog about trial science.