Identity Crisis of Trial Consultants, Part 3: Jury v. Bench Trials or Arbitration

A Point of View

David H. Fauss, M.S.M.

On March 9, 2017

Category: Business Frustrations, Getting the Job Done, Litigation Tips, Marketing your business, Psychology, Trial Consulting, Trial Science

This is the final post in the series on the identity crisis of trial or jury consultants. In this post, I want to comment on the term “Jury Consultant.” Over the 25+ years of being in this field, in response to my self introduction, I have heard 2 other things. The first is, “…In my type of law, I am usually only involved in bench trials” (those decided only by a judge, not a jury). The other is, “My cases are all handled by arbitrations.” Guess what, judges and arbitrators are people too! They make decisions in ways similar to jurors. They are professionals, as judges, and in various fields, as arbitrators, but they ultimately make decisions based on the attorneys’ presentations, in addition to the law, just as a jury would do. We’re pretty clever as trial or jury Consultants – at least the good ones are, and we know how to adapt our research methodologies to whatever type of fact finder (judge, arbitrator, or jury) will be involved in a case. So, when lawyers demonstrate a myopic view of trial consultants, it becomes my/our job to educate them and improve their vision. Mock bench trials, mock arbitrations, and mock jury exercises all have commonalities. Sure, there are differences, but with proper and careful consideration of the parameters of the case, a qualified trial consultant can provide tremendous support and direction to a lawyer and trial team, regardless of the forum for the ultimate decision. As I said before, call us what you want, just call us. Or, at least send an email.

When I remark to attorneys that “Judges are people too,” they often reply, “No, they are not!’. All kidding aside, juries, judges, mediators, and arbitrators are people. They may have different backgrounds, but over the 4 decades I have been conducting research on humans, I have found people have more characteristics in common than differences. For example, most people like to get along with other people and, as a result, they tend to conform to group norms in ways they may or may not realize. Within the context of my work as a social psychologist, I have observed thousands of people interact in groups. These groups are comprised of mock juries, mediators, and arbitrators. Regardless of the research design and the type of participant, most people within a task oriented group setting follow well established norms. They try to accommodate others in the group, they share their opinions and listen to opinions that differ from theirs, and in general, they work together in a cohesive manner to arrive at a group decision. On the numerous occasions when I have conducted mock arbitration research, the arbitrators, although they are attorneys and other professional people, make their decisions in much the same way as mock jurors. The arbitrators might use bigger words and more of them, however, in the end, the group dynamics are strikingly similar to those in a mock jury. The point of this post is to provide an understanding of the fact that, regardless of the forum by which an attorney’s big lawsuit will be resolved, having an expert in human decision making is never, ever, a bad thing. There is always something to be learned, as long as the attorney is willing and able to accept other people’s opinions.

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