Window of Opportunity for Trial Consulting Work

Recently I’ve received calls from attorneys who wanted mock jury research on their cases, but the calls have come so late that I have been reflecting on when the window of opportunity is open for mock jury research. I have mentioned this issue in other posts, but because I’m noticing this recent spate of last minute calls, I thought it deserved more discussion. The truth is, to some degree, as long as the case has not started trial, there MAY be some value to even last minute work. I say “MAY” because, when the call is a week or so before trial, the practicalities of conducting research are perhaps, impossible. It is certainly impossible to “do it right.” This is because of the lead time to set up the research, recruit the participant mock jurors, write surveys, etc. This lead time takes 2 to 4 weeks, at a minimum, even without looming trial dates. Then there is the research day. For social scientists, including those working as trial consultants, this day is not the end of the process, it is closer to the beginning. I think many clients see it as the end, but it is far from the end. When the research day ends, our real work begins. The data have to be analyzed, including conducting whatever of statistical analyses are possible with small group research. We write reports both of what happened at the research, but more importantly, what can we recommend to “fix” the problems and improve the outcome. This process takes us another 2 to 3 weeks. So, from the first call to the conference after the report is written, usually, 6 to 10 weeks have elapsed. And then, for our clients, the work continues in that the recommendations are like homework for them – we send them in many directions to get more information to use to share with jurors when the real trial begins. I once had a client say, post report, “you should have made me do this sooner” – because he finally realized what he would learn, and what that learning would require him to do. When we’re called very close trial, we offer as much help as possible, but the point of this post is to explain that waiting until all else has failed may be too late. This is the trend that I’m observing; that is, rather than engaging the trial consultant, and working through the case early, some clients seem to be waiting until they know they will be forced to try the case. These clients are most often those with less trial experience, and certainly those with little experience working with trial consultants. They don’t know what they don’t know and probably their clients don’t either. Their ignorance shows, and it most likely hurts them, and their clients. The truth is, the window of opportunity for engaging the trial consultant can start before the case is filed. It is certainly wide open during discovery, prior to mediation, and months before a trial or arbitration. Getting your trial consultant ready, on standby at least, is certainly one way to get the best result for the client. Waiting until the window slams on one’s fingers is not advisable.

Attorneys and social psychologists share few personality traits. Different types of people are, of course, drawn to different occupations. Social psychology is a research based doctoral degree; as such, it attracts people who are detail oriented; mathematically inclined; proactive; possessive of highly advanced logical reasoning skills; capable of designing, executing, and analyzing complex research programs; and have excellent scientific writing skills; to name just a few characteristics. In all the decades I have been working with trial lawyers, I have not observed the same skill set in my clients and me. This is, of course, what makes me a valuable member of their team. This being said, one of the most frustrating aspects of my job as a litigation psychologist is working with attorneys who procrastinate in retaining my company and me until it is either too late to change their theories about their case, to incorporate everything that emerges during the research process or, worse still, until it is too late to do anything to help them. David has written other posts related to this topic; it seems to me that the attorneys who wait until the window of opportunity is almost or completely closed are doing a great disservice to their clients. This problem is, in my opinion, worsening due to many attorneys’ absence of trial experience. There is nothing wrong with learning something important about one’s case as early in the case’s progression as possible. There is nothing wrong with knowing one’s weaknesses sooner, rather than later. But, there is everything wrong with waiting until the last minute to begin working with an expert who can help one’s client in ways only a social psychologist or other jury/trial expert can help.

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