As I fly home to Seattle from the American Society of Trial Consultants (ASTC) conference in Minneapolis; I am left with two nagging questions:
1) How can I shamelessly promote the 30th Annual ASTC Conference next year in Seattle between June 9th and 12th, 2011?
2) What can be prognosticated as to the future of the Trial Consulting profession?
Obviously, I quickly answered the first quandary. (Shameless promotion accomplished!).
However, the second left me pondering to come up with a few guesses…
John Grisham will write a bestseller called ‘The Consultants’
Set in the Windy City, it’s a story that centers on an all-female trial consulting firm (a la Charlie’s Angels) with the protagonists living a secret double-life. By day, they work huge corporate cases and hobnob around the world with the beautiful people. However, by night, they secretly devote their powers to innocent plaintiffs and death penalty defendants. It will become a NYT bestseller and make it on to Oprah’s night stand.
Reality TV Trial Consultants will take center stage
Forget a jury, which television judge and timeslot would best fit your case? These specialized consultants will help you choose: Judge Judy, Judge Joe Brown, Judge Mathis or Judge Reinhold? With the right decision, you could find yourself some fortune and fame (or at least your old futon and five minutes you can TiVo.)
John Grisham’s book ‘The Consultants’ is turned into less appealing movie
Like most Grisham books-turned-movies, it is disappointing. Rather than preserving the brilliant character-development and nuanced plot twists, the movie is heavy handed and makes terrible casting choices (Lindsey Lohan, Tara Reid and Paris Hilton play The Consultants). As a result, the film goes straight to video.
Okay, most kidding aside, here are a few real predictions (or at least hopes)…
Trial consulting for cases without trials
The best national assessment of civil case outcomes (state and federal) was performed in 2005 by the USDOJ Bureau of Justice Statistics. The most cited result from that study was the value "3%" (or conversely, 97%). Only 3% of cases filed were actually decided by trial. In other words, you have a better chance of randomly selecting a One-Eyed Jack out of a deck of cards than having your case settled by a jury.
I predict that litigation consultants will continue the rocketing trend toward offering affordable services designed for cases that settle. This includes assistance like: witness prep for depositions; case narrative and presentation strategy; video/PowerPoint/demonstrative production for ADR; negotiation tactics; preliminary case testing with small focus groups; and much more.
We will educate our jurors
Jurors have far more communication ability and knowledge than ever before. While the media tends to focus on jurors who Tweet, a more important issue is jurors who Google. Generally speaking, rules are most effectual when they are explained. Saying “Don’t blog or Google” is not nearly as successful a proposition as saying “Here is why we are asking you not to blog or Google…” I predict that the courts will realize this and teach jurors rather than simply making unenforceable threats of punishment.
Further, I foresee the courts being more liberal with their allowance of juror questions to avoid confusion. I have seen some “jury instructions” that would make constitutional scholars take pause. It is unfair to expect simple English-language speakers to understand legalese without the help of a translator or dictionary.
We will get to know our jurors
My last post lauded the merits of extending voir dire and pointed to research studies (especially Judge Mize's study) that demonstrate this necessity. As time goes on, I hope that this message gets carried further and is heeded widely. I predict that more and more judges will continue to sacrifice the time required for a solid voir dire in the interest of seating the most impartial jury.
I believe there are some who would prefer our juries were composed of legal robots that simply interpret “the facts and law” before printing out a verdict. This would be great, except that most cases present very different understandings of “the facts and law” which must be interpreted and weighed by people on the jury. Given that “human nature” is required to fairly weigh “the facts and law”, it is that “human nature” that we must explore with more extensive voir dire and questionnaires.
(In my prediction, these legal robots would then get self-awareness and try to take over the world. We would toil under the foot of our "logical overlords" until The Consultants organized a resistance to save us. But I’ve said too much.)
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