By Jonathan P. Vallano, Ph.D.
In the past 25 years, trial consultants have become increasingly important to litigators and litigation alike. In fact, trial consultants arguably permeate the landscape of complex litigation. Although there is little doubt that trial consultants provide attorneys with valuable tools to help them more effectively represent their clients at trial (e.g., via pre-trial research, focus groups, trial and witness preparation, etc.), are the services provided by trial consultants limited to trial? This post will discuss the role that consultants play in all phases of litigation, particularly cases that do not make it to trial. This post will also discuss what a consultant's role should be, and whether this role should transcend individual clients to assist the legal system as a whole. That is, should we urge consultants to extend their influence beyond improving litigators' individual advocacy efforts on specific cases to using knowledge of research and practice to inform and improve the legal system?
Should consultants use the title "trial consultant" or "litigation consultant"?
The label "trial consultant" suggests that consultants assist attorneys only with cases that are resolved at trial. However, in my experience, this is a common misconception. Consultants help attorneys prepare cases that are settled before trial or are resolved via other means altogether, such as alternative dispute resolution (e.g., arbitration, mediation). In fact, most of the services provided by trial consultants lend themselves to any case, regardless of the chosen resolution method. Take witness preparation, for example. It is very beneficial to enhance the effectiveness of a witness who testifies at a deposition, or even a witness who simply interacts with opposing counsel. These interactions and testimony affect attorneys' perceptions of case strength, and can be used as a major bargaining chip during settlement negotiations. A poorly prepared witness may induce opposing counsel to believe that they have a stronger case and thus avoid settlement, resulting in a case that continues toward trial and a further expenditure of time, money, and resources. Even more, this witness may increase the likelihood that opposing counsel will secure a more favorable outcome.
For these reasons, I argue that the use of the title "trial consultant" may be misleading for some consultants, as it may ultimately misrepresent the breadth, depth, and importance of their services. Instead, the title "litigation consultant" may be more appropriate to accurately convey the reality that many consultants provide services that aid consultants in all aspects of litigation, even in cases that never enter the courtroom. I would also argue that this title better illustrates the importance of consultants within the vast expanse of litigation, which may more positively impact how attorneys view the utility of their services. Perhaps if more attorneys conceptualized practitioners as litigation consultants, they would be more likely to call upon them in the early stages of litigation, which may result in a more successful and just resolution for all parties. For instance, consider how important it is for attorneys to accurately and objectively assess the strength of their case to decide whether to pursue trial or settlement. A litigation consultant may be the ideal party to assist litigators with these important decisions faced early in litigation, yet attorneys may wrongfully assume that this assistance is not within the purview of the profession. This needs to change.
Should litigation consultants only assist attorneys, or also assist the legal system?
It is relatively uncontroversial that litigation consultants largely exist to provide an objective set of eyes (and services) to trial attorneys working on individual cases. But can litigation consultants play a larger role by informing and improving the legal system as a whole? I believe they can, and that the majority of excellent consultants with a wealth of education and experience may be the best parties to do so.
What types of positive influences can litigation consultants have on the legal community? Below I provide a non-exhaustive list of possible influences, certainly some of which many consultants may already address in some capacity:
- Therapeutic jurisprudence: ensuring that judges, attorneys, litigants, witnesses, victims, and jurors receive fair treatment and assistance dealing with emotional stressors encountered during the trial process
- Improving the comprehension of jury instructions: interacting with attorneys and judges to re-word jury instructions, particularly at the local level
- Improving the validity of jury selection procedures: sharing knowledge with judges regarding what voir dire techniques allow for the most open and honest discussion, and ultimately promote the discovery of biased jurors
- Providing information to jurors to make more informed decisions: promoting empirically-supported legal reforms such as permitting juror note-taking and jurors to ask questions at trial
- Making the trial process more efficient: serving as organizational consultants within the jury system to make trials run more smoothly for both jurors and legal officials
- Aiding change of venue decisions: helping attorneys and judges understand the potential biases presented by excessive pre-trial publicity, and the need to change venue in these cases
- Conducting applied research to assist local jurisdictions: serving as a research arm for the courts when the need arises, and possibly partnering with other organizations (e.g., National Center for State Courts)
I believe the field of litigation consulting can have a positive impact, both at the individual and systemic level. The above changes could be more greatly emphasized, and consultants could better organize themselves around the mission to serve the legal system. As the field advances, I would urge not only individual litigation consultants and their respective firms, but also the field itself to consider how we could organize our talent to make beneficial changes and legal reforms. Litigation consultants represent an integral (and growing) piece of the legal system that has the ability to influence not only individual attorneys working on individual cases, but to advocate for the ideals of fairness and justice for all.
As succintly opined by the French philosopher Voltaire, "With great power comes great responsibility."
Jonathan P. Vallano, Ph.D., is the editor of the Deliberations blog and Assistant Professor of Psychology at the University of Pittsburgh at Greensburg. Dr. Vallano also serves as a litigation consultant based in western Pennsylvania. You can contact Jon at firstname.lastname@example.org or visit his website at www.jpvallano.com