By Dr. Ken Broda Bahm:
One lasting lesson from the now-concluded presidential campaign is that it matters where you get your advice. The field of political consulting has long been populated by guru-like figures like Dick Morris. Relying on subjective indicators like the feeling and size of the crowds at rallies, as well as the intuition that the Obama campaign could never repeat the levels of turnout it saw in 2008, Morris predicted a “landslide” win for Mitt Romney. He was wrong, of course, and Nate Silver and many other pollsters were right. But beyond the polling, it turns out that team Obama had an unprecedented “Dream Team” of social scientists providing data-driven advice on messaging, fund-raising, and get-out-the-vote tactics. Detailed in a recent article in the New York Times, this Pro Bono team was known as “COBS” (for “Coalition of Behavioral Scientists) and included some of the leading lights from Princeton, Arizona State, Columbia, and the University of Chicago. All of these experts teamed up in order to provide the reelection team with research-based advice on countering rumors, portraying the adversary, strengthening voter commitments, and mobilizing the behavior of voters.
Ultimately, it turns out the social scientists were quite a bit more useful than the gurus, and this approach is likely to become the ‘new normal’ for political campaigns in the future. The trend points to a parallel choice for litigators: When looking for advice in the lead up to a jury trial, is it better to seek out gurus who seem to have a special sense and understanding for juries, or is it better to go with social scientists who are able to generate, analyze, and base recommendations on data derived from research prior to trial? Of course, the way I’ve framed that question, as well as my introductory example, reveals my bias. When you have a choice, I think it is better to listen to social scientists more than you listen to gurus. Still, there may be a little more nuance to the question. In this post, I take a look at the guru/scientist split as it relates to a choice of litigation consultant.
To look a little more deeply into this choice, let’s consider one question and one implication.
Question: Is Your Consultant a Guru or a Social Scientist?
I admit, it is an extreme comparison with a lot of space in-between, but drawing from a number of past posts, I believe there are still some reliable cues:
A Guru Is More Likely to…
- Base conclusions on feelings and intuitions
- Claim to predict trial outcomes
- Claim to be able to read jurors’ facial expressions
- Assign definite meaning to nonverbal communication (such as looking ‘up and to the right’)
- Speak confidently about how certain demographics are likely to view your case
And a Social Scientist Is More Likely to…
- Base conclusions on pretrial research (attitude surveys, focus groups, mock trials)
- Emphasize an appropriate role for statistics
- Emphasize the complexity (rather than the simplicity) of juror attitudes
- Emphasize the cumulative nature of decision making (as opposed to an instant decision)
- Address the questions of reliability and validity when measuring attitudes
As I see them, these two extremes will respond quite differently to the key strategic questions you’re likely to have about your case. The guru will shoot from the hip while the social scientist will say, “let’s find out.” Of course, these represent the poles and it isn’t always possible to research every question. It is inevitable that experience, judgment, and even intuition will play a role. The key is to know what you’re relying on, and to stay away from those who try to boost the credibility of what are essentially guru ideas by clothing them in the guise of social science.
Implication: Take Inspiration from a Guru, But Draw Conclusions From a Social Scientist
I don’t mean to suggest that persuasion in the law is all a matter of science. Philosophy has a role as well, and much of what I consider to be my best advice is drawn from the field of rhetoric rather than social science. But once we are outside the realm of specialized knowledge, and a trial consultant is just offering their own judgment to a seasoned trial lawyer, there is no telling that the consultant’s judgment will be any better than the trial lawyer’s. The key question is, “what is it based on?”
Here, again, the political world is instructive. In a room full of campaign operatives, politicians, and consultants, if the question of “how to motivate votes” comes up, everyone is going to have a strong opinion. But what does the research say? The New York Times piece shares a couple of nuggets offered by the social science dream team. One, focus on prior positive behavior (e.g., “Mr. Jones, we know you have voted in the past”). Two, leverage small commitments into larger ones (e.g., “Please sign this informal ‘commit to vote’ card”). For both strategies, there is strong behavioral evidence to show that the techniques work better than other strategies, like focusing on what might happen if you don’t vote.
In litigation as well, a key question should be:
Are our biggest strategic decisions based on data?
Answering that question, “yes,” doesn’t mean that you necessarily need to conduct a mock trial or a focus group for every case. Sometimes, that won’t make sense for your budget. But an experienced consultant should be able to point you to applicable published research (like the many studies covered in this blog), and can often draw from lessons learned in prior cases (where that isn’t precluded by confidentiality).
Relying on the consultant’s experience, however, brings up one more question:
What is my consultant’s background?
While there is currently no certifying body for trial consultants (probably a bad thing), and consultants tend to come in all shapes, sizes, and backgrounds (probably a good thing), the combination sends a strong message of caveat emptor to the litigator/consumer when retaining a trial consultant. A good first step is to know that consultant’s background. In the spirit of full-disclosure, my background is probably evident in the topical sweep of posts in this blog. I’ve studied and taught not only social science, but also political communication, rhetoric, argumentation, philosophy of language, research methods and public speaking. Ask other consultants and you will get varied answers: None wrong or right, but all different.
And, truthfully, none of us are pure gurus or pure social scientists. There is a time and a place for sage advice based on experience, judgment, and wisdom, and there is a time and a place for listening to the data. But returning to the success of the President’s data-driven campaign, the latter is often underemphasized and can pay off big when used well.
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Other Posts on Trial Consultants:
- Don’t Be Entranced By Statistical Claims From MockTrial Research
- Don’t Mistake the Purpose of “Scientific Jury Selection”
- Don’t Put Too Much Fizz in Pop Psychology
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Image Credit: Universalaster (Guru) and BrokenCities (Scientist), Flickr Creative Commons (edited and combined by K. Broda Bahm)