Every so often, the field of Trial Consulting comes under attack. Despite our 35 year history, some in the legal field continue to believe that the use of consultants is equivalent to buying car seat warmers. Sure it feels good in the winter, but warm butts have nothing to do with getting you where you want to go.
Everyone has the right to their opinion. However, things change dramatically when a judge or prosecutor tries to utilize the law to impose this opinion on parties to a case.
Last year, Sonia Chopra and I (Matt McCusker) wrote an Amicus Brief for an appeal being heard in front of the Iowa Supreme Court. We were prompted to act when a prosecutor (and judge) prevented a criminal defendant from utilizing his own legally attained funds to hire a consultant to work with his defense team. According to the State, this service was a “luxury” that the defendant didn’t have a clear right to. Our brief outlined numerous arguments that questioned this perspective.
Recently, the accused Fort Hood shooter (Major Nidal Hassan) encountered opposition from the prosecution when his team requested funds for help in jury selection and a media analysis exploring how Mr. Hassan has been painted in the press. In fact, one of the prosecutors suggested that a jury consultant would be doing “tasks performed routinely by attorneys around the world every day.”
Rather than focusing on the problems with the prosecutor’s statement (e.g. lack of jury systems around the world, limited experience many attorneys have with jury selection, unique training consultants have in media analysis and voir dire development, etc.), I take issue with the implication that consultants do not bring significant added value to a legal team.
The term “consultant” can be defined as a specialist who provides expert advice. Doctors regularly ask for consults from specialists. Most major companies hire management and marketing consultants to provide recommendations. Are these extravagant luxuries? Should doctors just assume an expertise in everything? Should a CEO simply develop his or her own marketing plan or implement a homegrown HR process? Most would think not.
However, popular use of a service is not proof of its efficacy. Instead, we should turn to the free-market. The field of Trial Consulting has exponentially grown in use over the last 30 years. Similarly, the rates charged by successful consultants have risen significantly. In a capitalist system, a product’s price tends to correlate with its perceived value. If decade after decade, more attorneys, municipalities and corporations are willing to pay more money for litigation consulting, the value is proven.
Some may agree that Trial Consulting is valuable, but oppose government-funded consulting to assist criminal defense teams. This is a valid point. However, they should also consider that governments across the country (Federal, State and Local) regularly utilize the services of Trial Consultants during high-stakes civil litigation. So, tax dollars are already going to consultants for the most important government funded civil defenses. Why should money not also go towards the most important government funded criminal defenses?
Blogger: Matt McCusker