As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community. At times, trial attorneys question the necessity and even the validity of some trial consulting techniques. Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work.
In my opinion, this is not an accurate description. While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing all collected data is crucial to providing well-founded recommendations.
Sometimes, trial attorneys have been encouraged towards “do it yourself” mock trials or have attended workshops where abbreviated and truncated litigation focus groups are demonstrated by their faculty. This has potentially left an impression that these demonstrations, often using actual case content, are templates for valid and reliable pretrial jury research. However, these demonstrations do not show the detailed analysis that most consultants give the data they collect.
Typically in mock trials, 3 or more panels of jurors have been recruited and subject to extensive background questionnaires to get a sense of their attitudes, beliefs and life experiences prior to hearing about the case. Next, these participants are shown detailed case presentations with exhibit books and asked who they favor throughout the day (Plaintiff? Defendant? Is there proximate cause? Etc.). Then, armed with a treasure trove of information, litigation consultants can analyze the results and search for associations between opinions/experiences and case leanings. Both qualitative and quantitative analysis are often used to glean the most useful information.
Unlike some services offered by litigation consultants, mock trials fall into a very specific set of social science standards and practices. Careful research methods must be maintained to ensure that clients are provided with quality results. According to the American Society of Trial Consultants Small Group Research Practice Guidelines, when discussing mock trial research with clients, consultants shall:
(IV.D.) “Communicate to the client the research methodologies employed in the study design, juror-participant recruitment (insert footnote), data analysis and reporting of research results.”
Accordingly, I believe it is very important to explain the mock trial process to clients so they understand what data is being collected and how it is being analyzed and interpreted. Without this communication, clients may be confused about the reliability and validity of the recommendations that are reported. For example, if certain questionnaires that are filled out by jurors are never really analyzed, I would be uncomfortable presenting a report that suggests these questionnaire results were part of the report development.
In my opinion, strong mock trial recommendations should be the result of carefully analyzing all of the information gathered. While litigation consultant expertise/experience is also a vital component, I cannot allow myself to leave any data by the wayside. Instead, everything from initial questionnaires to exit interviews serve as important pieces of the puzzle that eventually transform into recommendations. Otherwise, clients may actually be purchasing the “fluff” the detractors try to say this field is selling.
Blogger: Matt McCusker