A Trial Consultant/Litigation Strategist offers a wide array of services to help strategize and even the odds throughout the litigation process. In fact, a Trial Consultant/Litigation Strategist should be brought into the case during the discovery phase to determine what information is important to procure via depositions or interrogatories etc. Contrary to popular belief, a Trial Consultant/Litigation Strategist is much more than a Jury Selector, but in fact, can and should help with bench trials, mediations, arbitrations, and settlements as well. A trial consultant/ litigation strategist can help you determine problem areas, simplify complex issues, tell the story in an effective manner, research liability and damage potential, and suggest valuable strategies to implement during the litigation process.
Trial Consulting Benefits:
*Provides insight and strategic guidance
*An edge over the competition
*Revenue Generating
Many clients hire a Trial Consultant/Litigation Strategist prior to mediation to conduct focus groups in an effort to gather information which may lead to the settling of the case. However, a focus group can also be extremely beneficial prior to trial.
Focus Groups:
There are many different types of focus groups. There is the original Mock Trial which focuses on the big picture rather than problem areas, themes, or what is important to the jurors. It is a huge time commitment and enormously expensive. Trial Consultants/ Litigation Strategists only recommend Mock Trials in extreme cases being that most of the same information can be accomplished via another technique.
In-depth Focus Group: Trial Consultant/Litigation Strategist spends time with a representative sample of potential jurors and attorneys are invited to “present their case”. The Trial Consultant/Litigation Strategist acts as a facilitator to skew the decision against our client in an effort to determine what issues are important to the jurors and how to strengthen our case. The jury will “rate” the witnesses, “evaluate” the attorneys, and discuss the demonstrative evidence tools, in addition to deliberating the underlying argument and deciding the case or amount of damages. For an “In-depth” Focus Group, the attorney involved will present the information to the jury (he/she should portray the opponent’s side), and another attorney in the firm will represent the client. Demonstrative evidence, witnesses, video depositions, documents, or other evidence can be shown to the jury for them to evaluate as part of the deliberations. Each side will have approximately 25 minutes to present their case. The moderator will facilitate the group discussions. There is a question and answer period, and a deliberation period. Jurors discuss what issues are important and which aren’t, themes and analogies, liability and apportionment, damage potential and/or settlement value, witness evaluation, and evidence evaluation.
In its simplest terms, a focus group is an informal mock trial. In a focus group, the attorneys each have approximately twenty-five (25) minutes to present their case, utilizing whatever evidence or exhibits they feel would add value. The presentation would be a mixture of the opening and closing. Witnesses may also be cross-examined by the attorneys for evaluation, or if not present, the jury may view a videotaped deposition of the witness to evaluate demeanor. The jury would deliberate as to liability and damages, consider themes and analogies, tell us what is important to them, discuss what would help change their mind or sway their viewpoint, and fill out various questionnaires (i.e.: which would aid in determining what the best and worst arguments for each side is, what the strengths and weaknesses of a witness are….this would aid in witness preparation and voir dire prior to trial).
As far as the attorneys are concerned, they are called by their first names so as to alleviate any potential bias that might result from recognizing the advocate’s name. This type of informality also lends itself to a relaxed atmosphere, which is conducive to the objective (i.e.: which is to obtain the honest opinions of the jurors regarding the case issues). Jurors are told that their input may help to determine some of the issues so that they feel as if they have a stake in the outcome and become more involved with the research.
The data collected and compiled from the research can be analyzed to determine which type of people would be the best jurors for your case, the best themes to use, the right strategy to implement at mediation and trial, etc. A report depicting the results will be compiled, unless, because of time constraints, it is indicated that a report is unnecessary. Jurors sign a confidentiality agreement when participating in a simulation to guard against the opposition determining the results of the research. Videotaping the group is not recommended.
Informal Focus Group: An “informal” focus group is different from an in-depth group only in that the attorneys are not present. The moderator presents the case to the jury piecemeal in order to determine what is or is not important to them in the decision-making process. Approximately 90% of the same information is gleaned from this research as in an In-depth Focus, with the exception of the evaluation of the attorneys’ presentations.
Web-based Focus Group: This service is relatively new in keeping with the fast paced busy life style of Americans and the new technology available to us. The Advantages of such a technique are that there are no time constraints for jurors, allowing the Trial Consultant to reach a greater variety of people, including professionals who can log onto the computer at their convenience. There are no incidental costs to the client for this service, and the Jurors are inevitably more honest and open because this is an anonymous interaction; however, it is quite difficult to limit the participants by venue.
When to do a Focus Group:
The best time to do a Focus Group is AS EARLY AS POSSIBLE. Waiting until one week prior to trial to do a focus group is not gong to accomplish the desired goal. Cost is Recoverable from the Attorney’s client in that it is considered in the same vein as an expert witness. While it is true that psychology is not an exact science, the research helps the attorney in his/her decision-making process.
Who is the Client:
It is the law firm, not the law firm’s client, that is our client. Whether or not you share the results of the group with your client is up to you but we usually recommend against it (except in the case of the sophisticated client such as an insurance company). The reason is that we understand, but clients sometimes do not, that this is just a tool in the attorney’s arsenal. Trial Consultant/Litigation Strategist can offer guidance and probabilities, but certainly not assurances of the outcome of a case.
Other services:
Community attitude surveys
Witness preparation
Case analysis and strategy
Demonstrative aid analysis
Voir dire questions and assistance
Structuring of the opening statement
Theme analysis
Jury shadowing
Customized packages also available upon request.
