By Dr. Ken Broda Bahm:
Every once in a while, popular culture rediscovers the idea that trial consultants exist. In 1995, it was the O.J. Simpson trial, then in 2003 it was the John Grisham novel turned movie, Runaway Jury. In the years between and since, that attention has been sparked periodically during media saturated trials like Phil Spector, Enron, and Casey Anthony. During those moments, my profession gets a little attention, but also gets a pretty healthy dose of distortion. Either based on gaps in understanding or based on the need to raise the entertainment value, the media-curated image of what a trial consultant does rarely comes close to the practical reality. And looking at the advance-publicity for a new CBS series, we might be due for another round of attention and distortion. “Bull” is a new series starring Michael Weatherly (formerly of NCIS) based on daytime talk-show personality Dr. Phil McGraw’s early career as a trial consultant with Courtroom Sciences, Inc.
In the series trailer, the character, Dr. Jason Bull, is introduced, complete with smirk and evil-laugh, as “an expert on human psychology,” and “the best trial consultant in the business.” The complete 4:50 trailer leaves us with two broad conclusions. The first is that it appears to be one of the biggest spoiler-previews in history, revealing not only the verdict at the end of the big case, but also several moments that seem designed to be the surprising plot twists along the way. The second is that this series appears to be as steeped in misrepresentation as most other media portrayals of trial consultants, or perhaps more so. I have written previously (here, here, and here) on correcting the myths, but this trailer presents a few fresh ones. In this post, I’ll break down the trailer in order to call out and correct some of the larger misrepresentations of what trial consultants do.
Image: Jury Consulting is Fancy High-Technology Work
Based on the preview, the producers seemed to have inherited the leftover set technology from Runaway Jury. The viewer sees a futuristic control room, with a wall of touch-screen monitors featuring pictures and data on each of the jurors, as well as mock trials with biometric hand scanners and individual cameras for every mock juror. The message is that trial consulting is a new and advanced technology for knowing and controlling jurors.
Reality: Most of Jury Consulting is Basic Social Science
The reality of what trial consultants do is much more prosaic. Instead of a panoptic read on every nuance of the juror or the mock juror, it comes down to a more practical application of the normal tools of qualitative research: surveying on the right attitudes, listening carefully to the discussions, and sharing useful but not perfect results.
Image: With Enough Information, Juries Are Completely Predictable
In the trailer, Dr. Bull notes that “The jury starts with a preconceived idea of the truth, we don’t guess at that.” The doctor’s apparent sidekick adds, “Dr. Bull profiles every juror: their behavioral patterns, what they click on, likes, avoidances, then we create a mirror jury and run mock trials. It all gets plugged into a matrix that is scary in its predictive efficiency. Dr. Bull knows how they’ll vote before they do.”
Reality: Even With Research, The Jury Is Never Fully Predictable
Anyone who tells you that they know how the jury will vote is selling you something…in this case, a television pilot. As near as I can tell, the writers are unique in using the term “mirror jury.” Consultants are more likely to rely on a “mock” jury, or more accurately several mock juries, to provide ideas and a range of possible outcomes, and a “shadow” jury to point to possible reactions you may not have expected. Both are heuristic tools: You’ll never have an exact match to your actual jury.
Image: Consultants Can Read Nonverbal Communication With Extreme Accuracy
At one point, Dr. Bull confidently informs his young client that, “93 percent of all communication is nonverbal.” To illustrate, the trailer then shows a scene where Dr. Bull seems to be definitively decoding jurors facial expressions, with panelists communicating very clear messages like: “I just don’t like this lawyer,” “Mysogynistic jerk,” “Someone needs to stick it to the system,” or “I’m so hungover.”
Reality: No One Can Distill Precise Meaning from Nonverbals
Of course, we can all understand nonverbals, and we do it all day. But the idea that one can definitively translate nonverbals into clear verbal messages, as illustrated in the trailer, just isn’t borne out by the research. In fact, here is a handy way to distinguish those who have pretended to study human communication from those who actually have: The former will use that 93 percent statistic, and the latter won’t. The reason is, of course, that no study has ever found that, and the source that some people offer for that statistic, Albert Mehrabian, has disavowed that interpretation of his data many times.
Image: Trial Consultants Are in Charge
In the trailer, the lead counsel seems to work for Dr. Bull, and not vice versa. The doctor notes that he “hates lawyers” twice during the trailer and, because he also “hates surprises,” he also steals and bugs the attorney’s (fake) Rolex watch. Dr. Bull also seems to call the shots, at one point telling junior counsel, “Clyde’s not doing direct, you are.” In one of several confrontational scenes, the lead attorney tells Dr. Bull, “You can’t control a trial like this,” and Dr. Bull responds, “You can’t,” implying, “but I can.” And then the client tells counsel, “Do what he says.”
Reality: Trial Consultants Serve the Attorney
Okay, that last part sounds like a trial consultant fantasy. But the less-exciting reality is that trial consultants work for the attorney, and to the extent that consultants have any power at all, it is the power to add to that attorney’s team and to make that attorney more effective. Dr. Bull’s “Rule number 1” that “the client is the enemy,” might make for good television, but it makes for a pretty bad, not to mention unethical, working relationship.
Image: Trial Consultants Are Super-Attractive
Based on the character of Dr. Jason Bull, the character description suggests that trial consultants possess a “physicality, feral intelligence and bruising candor” that make them “magnetic” to others.
Reality: Okay, that One Is True
Near the end of the trailer, the on-screen text reads, “No Rules…No Apologies…All Bull.” Yes, it may actually be “all bull,” but perhaps not in the sense that the writers intended. Of course it is nothing new for professions to be dramatized in the media: Doctors, forensic investigators, teachers, newsmen, police officers and politicians might also chafe at the way they are represented on television. One difference, however, might be that these misrepresentations of trial consultants are accompanied by a very low understanding of what consultants actually do, and are offered at a time when the civil jury is uniquely under threat. To fight that cynicism, it falls on the consultants and those lawyers who rely on them to correct the record. Hopefully, CBS stations will see a useful tie-in opportunity and invite actual trial consultants onto the news to share what is and isn’t real in the representation.
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Other Posts on Perceptions on Trial Consultants:
- Expect Trial Consulting Myths to Die Hard
- Don’t Mistake the Purpose of “ScientificJury Selection“
- Balance the Trial Consulting Scales
- Don’t Put Too Much Fizz in Pop Psychology
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Image credit: Jaaju, Flickr Creative Commons