I started on Twitter because I wanted to share thoughts that weren't long enough for a blog post. Now that I'm there, I find myself wanting to "tweet" thoughts that are too long for Twitter. Here's one. New York lawyer Tony Colleluori, whose blog is that lawyer dude (he's @thatlawyerdude on Twitter), is planning for two upcoming criminal trials. He is appointed counsel, so his budget for jury consulting, if he gets one at all, will be limited. "Any ideas how I can get best bang for little bucks," he asks, probably less than $5,000?
The phrase "jury consultant" can be correctly used in a sentence without the word "pricy," although no one ever seems to. If you have less than $5,000 to spend on a jury consultant, think about one of these ideas. Which one you choose depends on you and your case.
1. Just talk. Block off a day or two, get a good consultant and a lot of coffee, and talk the whole case through. Talk about witnesses and their weaknesses, themes and their strengths, inscrutable evidence and how to make it clearer, stereotypes you'll trigger in jurors' minds, jurors' attitudes and past experiences you'll invoke and ways to find out about them. It's not just that the consultant will think of things you've missed; you will think of things you've missed.
2. Ask a consultant to help prepare your key witness. Of all the difficult conversations a lawyer can have, one of the hardest is telling a client what she needs to change to make her testimony clear and let her sincerity show. A consultant can see things you won't, and say things you can't.
3. Have the consultant help you gather data and social science research for a motion to change venue. A $5,000 budget may be tight for this, but if you really need the motion, you need all the help you can afford.
4. Invite the consultant to voir dire, especially if (and I doubt this is Tony's situation) you haven't selected many juries or if (this may be closer) the voir dire will be particularly challenging. Pretrial publicity, sensitive questions, a cumbersome boxful of jury questionnaires, a very large venire, or the need to lay a record for Batson challenges can each -- let alone all -- turn a familiar task into something you could use help with.
5. Skip the consultant and do your own mock trial. If you've never watched a jury deliberate, this may be the most powerful way you can spend your jury research money. Ask a good recruiter to find you 18 or so jurors that roughly match your jurisdiction's demographics. (Paying the jurors plus the recruiter will use up the $5,000 in most major cities. You could recruit jurors yourself, but it's tougher than it sounds.)
After the jurors sign confidentiality agreements, present both sides of the case to them, making sure you don't underplay your opponent's case. Don't tell them which side you're on. Divide them into two or ideally three groups, give each one a set of very simple legal instructions and simple questions to answer, turn on a borrowed video camera, and leave the room. (If taping multiple deliberations at once is impossible, tape your presentations and present them to different groups on different days.) For detailed instructions on how to do this, a little book called How To Do Your Own Focus Groups: A Guide For Trial Attorneys by the respected consultant David Ball is invaluable. My article "What A Mock Trial Can Tell You" may be helpful as well. Pay no attention to who "wins" this mock trial; instead, listen closely to the tapes.
The deliberations will surprise you, which is the point. First there's the pattern of jury conversation in general -- the prominence of juror's own experiences, the way they rely on each other's life knowledge, how often they talk about things they're not "supposed" to, the gaps in logic, facts, and math they often don't notice -- and yet how seriously and sincerely they work for a result they can all support. If you haven't seen this before, it will change the way you think about juries. Then there are the specifics of your case. Your jurors will miss things you thought were obvious, and catch things you missed entirely. You'll want to fix both for the real trial.
If you could pay a consultant to plan and report on this project, it would save you some work, and you'd probably learn more. Don't worry about that. You can learn a lot for $5,000.
Jury consultants and those who've used them, weigh in; how can a consultant provide the most value when budget is small?
Related posts here: Expect Less From Your Jury Consultant
(Photo by Stuart Pilbrow at http://www.flickr.com/photos/stuartpilbrow/2942333106/; license details there.)