By Dr. Ken Broda Bahm:
I had one important early experience in trial consulting that I’ve kept in my head over the years. It was actually on my first job after moving to Persuasion Strategies many years ago. Attorneys we knew were working with a very large national litigation consulting group in hosting a mock trial. The client wanted to go with the very large firm, but the attorneys we knew wanted a consultant from our team to be on-site, just to provide some feedback. So I came to watch the mock trial and to share my thoughts. I had zero knowledge of the case before arriving at the research site — I didn’t read any briefs and hadn’t had any conversations with the attorneys about it. And I had no involvement in the case preparation afterward. I just watched for that one day, and then drafted my notes into a memo and sent it off. That memo focused on case strengths, weaknesses, what our message should be, what kind of jurors we want, etcetera, but all in all, it was just a memo that ended up being, I think, about 12 pages. I sent it to the attorneys who invited me, and that was it. I didn’t hear anything back at the time.
It wasn’t until more than a year later when I heard from one of the attorneys. He said that the team had won, and more importantly had used my memo as a guide to how they tried their case. More than the 150-page report from the larger group, and more than the daily involvement from their team of consultants, the team relied on the approach I briefly sketched out after just one day’s contact, involving only an hour of summary argument from each side. Reflecting on it, the attorney said, “It is interesting…We got the most useful advice from the person who knew the least about the case.” Then he went on to say that he thinks sometimes we consultants try to know too much. When we learn the case like the attorneys learn the case, he said, we become just another voice at the table, just like the attorneys. We start to think the same, to share the same assumptions and mindset, and to look at the case through the same filters. And that, he stressed, can limit our usefulness. That advice stayed with me since then. So in this post, I wanted to share some thoughts on how a consultant ought to know enough to be useful, but not so much that there’s a risk of becoming an echo of the attorney’s perspective.
Why Not Know Everything?
Trial consultants aren’t spiritual empaths, gurus, or witch doctors. We are professionals. And as professionals, we like to be prepared. So learning about the case is generally the first thing we do when we become involved. But the question is, how much do we learn? The answer, “As much as possible!” might be intuitive, but it’s also risky. After all, the trial team is probably reaching out for a fresh perspective because they are bogged down in the details and the minutia. Adding another member to the team who is also bogged down in the details and the minutia is not going to help.
But it can be tempting. After all, it feels powerful and important to be an “insider” on that team. A consultant who has mastery of the details feels like they can hold their own in any meeting with the attorneys. The problem, though, is that as good as that feels, the consultant is often in the room to serve as a sounding board for juror reactions. And the jury is never going to be an insider and is never going to master all the details. The more the consultant becomes an insider, the less access that consultant is going to have to the jury’s relatively fresh and naive view.
How to Strike the Balance
Obviously the consultant needs to know the basics. It does not help to offer advice that runs counter to the facts or the law in a given case. But what the consultant knows should cover the broad outlines of the story, the strengths and weaknesses jurors are likely to see when telling the story to themselves and each other. Ultimately, the consultant should know a lot less than the attorney knows, not just for reasons of time, but also for reasons of perspective. Here are a few ideas for striking the right balance.
Put the Story Before the Specifics
An associate joining a trial team would probably start by diving into the details: the exhibits, depositions, filings, etcetera, start learning it all! A consultant, on the other hand, should try to start with the broad outlines of the story. Who did what to whom, why, and with what result? Who has acted responsibly and who has not? Sometimes details are important to that story — a contract or a smoking-gun memo, for example, will be central players in that drama. But document review should start with the story and add in details only where they’re necessary.
Set Aside the Legal Layer
One of the most common types of documents consultants are given in order to get up to speed on a case are the briefing on motions for summary judgement. This is probably because, a) they’re available, and b) they include a lot more substantive information than a broad complaint and a ‘Deny, deny, deny’ answer. But the problem with relying on the MSJ briefs is that these are arguments covering a layer that is not generally argued before the jury. The point of MSJ briefing, the proper point at least, is not to argue the facts but to argue over whether there is or isn’t a factual dispute requiring resolution by a jury. So the briefs can help a consultant learn the broad contours, but the legal layer is really something that we don’t need to know that much about. The consultant helps best when focused on the broad ‘Who acted appropriately?’ question and not the mechanics of the individual claims.
Consider Having a ‘Naive Chair’ at the Research
If you have had long-term involvement in a case as a consultant and you fear that you might be adapting the ‘attorney’s eye view’ of the case, then it might be helpful to have a fresh perspective on-site as part of the research team. One step we have taken before is to have a consultant come in essentially as I did in the story I shared at the start of this post. That person might have a better handle on how the jury might be hearing it, since jurors are also just getting into the story for the first time.
I believe that the task comes down to the consultant and the attorney both doing their jobs. The consultant should most often make recommendations based on what the communication and the psychology of the situation demand. The attorney should then filter that advice based on what the evidence will support and what the law will allow in.
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Other Posts on Trial Consulting:
- Vet Your Trial Consultant
- Balance the Trial Consulting Scales
- Call Bull on Media Representations of Trial Consultants
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Image credit: 123rf.com, used under license