We consult on cases of every size and budget. While focus groups and mock trials may be out of reach for some cases, every case can benefit greatly from a few hours spent on case analysis, jury selection, witness preparation, or drafting opening statements and closing arguments. We will always discuss fees openly with the goal being to advance the case value by multitudes.
Bringing over a decade of experience to the table, we can identify areas in your case that are likely to cause problems with jurors. Drawing on our experience of watching thousands of jurors deliberate over the years, we can anticipate evidence that tends to cause roadblocks and work with you on reframing the case to embrace or work around those problems.
Sometimes, attorneys are blinded by having worked on a case for so long that they have trouble spotting problem areas. Often, however, attorneys know the faults in their case but do not know the best way to counter them. By spending a few hours talking through the case, we can restructure your arguments to shift the focus of the case and deal appropriately with the bad facts. We begin by breaking the case down and then work to build it back up with a much stronger, more cohesive story. We will talk about how to address issues head-on in voir dire, what arguments to incorporate into an opening statement, how to approach your expert witnesses to give more solid answers, where graphics may be needed to clearly portray an idea, and how to get jurors to overcome opposition from other jurors during deliberations. Sometimes your worst facts can become your best allies if the case is structured properly. For cases with smaller budgets, this service can be invaluable. This is often a good jumping-off point for larger cases to determine what other work would be beneficial.
Opening Statements & Closing Arguments
If the case goes to trial, we can help draft opening statements and closing arguments to make them much more persuasive and succinct. Winning jurors over by the end of opening statements is crucial because when jurors formulate beliefs about the case, it is extremely hard to change those beliefs. By the end of opening statements, jurors unconsciously have developed a theory and belief about what happened in the case and who is right or wrong. Throughout the rest of the trial, the evidence is skewed by their first impressions: Information that confirms their initial beliefs is remembered while evidence that goes against those beliefs is either forgotten or distorted. Opening statements are therefore extremely important in creating a lens through which jurors view the rest of the case.
We can help draft an opening statement that will address jurors’ belief systems and present the story which will allow jurors to see the rest of the evidence in a favorable light.
Closing arguments are often thought of as a time to rehash the evidence or are seen as completely irrelevant as jurors have mostly made up their minds by that time in the trial. Both assumptions are incorrect. Most jurors have made up their minds, but closing arguments are important for an entirely different purpose – they arm jurors with arguments to effectively fight against opposing jurors in deliberations. A rehashing of the evidence leads to juror boredom. There is an art to drafting a closing argument that will do its job of arming jurors when they are behind closed doors.
Focus Groups & Mock Trials
The best people to tell you about your case and give hints on how to restructure it are jurors in your trial venue. Litigation experience can never replace the multitude of (often shocking) information gleaned from focus groups and mock trials. Regardless of how many we run, we never cease to be amazed at how jurors view a case. When conducted properly, one of these research projects will reveal holes in the case which can then be addressed by the consultant. In addition, you learn which pieces of information are important to jurors and which are easily disregarded. Often, information attorneys feel is vitally important is irrelevant to jurors. Focus groups and mock trials can further be used to test the exhibits and believability of your client and witnesses. The trial should not be your test run. Let us help you evaluate and hone your case ahead of time.
Conducting a focus group or mock trial is a science. While attorney-conducted focus groups can be helpful in the early stages of litigation, there are many pitfalls to doing them “correctly” and the old adage “garbage in, garbage out” applies. Focus groups that are conducted without certain checks and principles in place can yield information that is actually harmful to the case. We are sensitive to the costs of undertaking such a project and will walk you through the various options and attached costs. Often there are various options of how to structure the focus group that can meet budgets of differing sizes. Our goal is to never charge more than the information you learn from the research and from working with us is worth it to the case. We have never had a client tell us that the money they spent on one of these projects was a waste or not worthwhile. On the contrary, we usually hear that the attorney is upset they didn’t retain us earlier in the process.
Voir Dire & Jury Selection
Jury selection is a time when you begin to establish your story with the jurors. Being too overly zealous can result in jurors losing trust in you. There is an art in getting jurors to open up, connect with you, and answer candidly. The way questions are worded matters greatly. We can help draft voir dire questions that will elicit truthful, useful information.
Sometimes, we use very small, paired down focus groups to help prepare you for jury selection. The success of your voir dire depends on your ability to ask questions in the right way, to think on your feet, and to solidify cause challenges. We often attend voir dire with attorneys and, due to poor questioning, end up not having enough information about juror attitudes to be of much service in deciding whom to strike. Even when we help to draft the voir dire questions, delivery matters. When a juror mentions something that could be used for a cause strike, the attorney often does not know how to solidify the answer to protect the juror from rehabilitation from the judge. This leads to a lot of wasted voir dire time as well as money.
Voir Dire coaching is a simplified focus group for the purposes of practicing voir dire. We bring in one or two sets of mock jurors and allow you to ask questions with our interruptions to make corrections. At your request, the
session can also be videotaped so that you can review it at your convenience. While it is recommended to do this before each trial, the skills you learn in only a few of these will greatly increase your effectiveness in every case. Costs vary but are very minimal. The costs entail food for jurors and a few hours of consulting time. If you live across the country, we can use Skype to communicate so that there are no travel costs. All totaled, it should cost you less than a weekend CLE seminar.
We can also be present during jury selection to help read jurors’ body language, tone, and verbal responses. A potentially bad juror who is likely to be a leader is a much bigger concern than one who is a follower. We watch for how jurors are likely to interact with one another to determine whom to strike. Your focus should be on having a natural, honest discussion with the jurors rather than on taking notes or discerning what they say.
Where allowed, post-verdict interviews are the chance to see where things went wrong and to prepare for a retrial. Without talking to jurors, there is no way to understand what theories or arguments were ineffective, leading to an unfavorable verdict. Jurors are reluctant to give open, honest answers to attorneys involved in the case. When we conduct interviews as a neutral party, jurors feel comfortable opening up and will reveal their true beliefs about the case and your presentation. Asking the right questions is integral to getting useful feedback. We are trained to read between the lines to know what it is that jurors are saying behind their words. Once we have completed the juror interviews, we can help you to reshape the case strategy for retrial.
We help attorneys navigate mediation in two different ways:
First, we believe in running pared-down focus groups and mock trials before mediation. The current mindset is that the costs associated with running focus groups and mock trials cannot be justified until a trial is imminent, but we believe otherwise. In a legal climate where 93% or more of cases settle, your income as an attorney depends almost entirely on settlement results. The settlement figure is now as important as a verdict once was as it is now the most likely end goal. Therefore, you need to start preparing for mediation like you would for trial. Part of that entails being able to do a better job than your opponent at showing what jurors are likely to do with the case if it does go to trial. Mediation is, to a great degree, all about what is likely to happen at trial and what jurors might do with your case. So, instead of wondering and settling blindly, we set up attorneys to go into mediation with a good sense of what their case is worth as well as a strong presentation to bolster their arguments at mediation. Before mediation, we take video from the focus groups and cut it down to 3-4 minute clips to show jurors deliberating about the case. You will take with you a short report written by us detailing the scientific validity of the focus group and a brief summary of the results. You can include both in your mediation package as well as take them to mediation with you to show the opposing counsel. In addition, we can come to mediation with you to answer any questions about the focus group, how it was conducted, and why it is sound research. If the focus group turns out poorly for you, you will save yourself a lot of money by knowing to settle the case at mediation to avoid a loss at trial.
Secondly, we work with parties in mediation where both parties are intent on settling but are too far apart to make it happen. If both parties agree, we do a mock trial working on behalf of both sides as a neutral. Both parties share in the cost. The results often fuel settlement as both sides know what jurors are likely to do with a case.
Whereas attorney-conducted witness preparation focuses on the content of direct and cross, we focus on the demeanor of the witness and in how they can be more persuasive both verbally and non-verbally. We work with nervous, angry, and guarded witnesses/clients to calm them by addressing their fears and taking time with them to find truths they can carry with them to the witness box. We can perform short-term miracles on how clients present by changing the way they feel about their circumstances. We also work with both the attorney and the witness to find more persuasive ways to tell the witness’ story.
Most trial consultants do not work in the family law arena, though we are not entirely sure why. While focus groups have little value here, we do witness preparation for divorce and child custody cases. We can perform short-term miracles on how your client presents at hearings or depositions by changing how they feel about their circumstances. Clients engaged in divorce battles are often bitter, angry, and tired. When they are able to see their reality through a different lens, they are able to let go of the anger and present with confidence. This can make a drastic difference in the outcome of asset distribution or, more importantly, parenting rights.