The philosophy of, “anything someone else can do, I can do better” resonates with some attorneys, who truly believe they can do just as good a job, if not a better job, working as a jury consultant than most, if not all, jury consultants. Some attorneys, after having had negative experiences with a particular jury consultant, decide to conduct their own mock trials and focus groups. Other attorneys seem to think that the value of fairly compensating someone, who is highly trained and who excels at providing a different perspective on their cases, is less important than conducting their own jury research, cheaply. Still other attorneys believe they know more about psychology than psychologists. Attorneys are experts on the law. They are not, however, experts on anything having to do with group dynamics, cognition, decision making, psychology, persuasive communication, or other important aspects of jury research and consulting provided by a highly trained, experienced, Ph.D. level psychologist Just as a psychologist is not an attorney, an attorney is not a psychologist (unless he or she has a Ph.D. in psychology, of course). Unfortunately, within the field of jury consulting there exists a wide range of individuals and corporations, ranging from astrologers, former stock brokers, people with G.E.D.s who are “good at reading people,” and attorneys, to psychologists and other highly educated social scientists who have studied the ways in which people make decisions beginning in college, through graduate school, and for the decades they have worked as jury consultants. The end user of jury research and consulting services must realize, just as a economy car will take one down the road, there are many points of distinction between an economy car and a Rolls Royce; more often than not, there is more to a car than driving down the road! Doing things cheaply is not something to brag about! Attorneys who conduct their own jury research, as well as those who are direct competitors with bona fide jury consultants, such as Magnus Research Consultants, perhaps dislike their intuitions being called into question by actual, scientific research. However, just as it is not in a client’s best interest for an attorney to conduct his/her own medical examinations on injured plaintiffs; perform his/her own accident reconstructions; act as his/her own expert on engineering, accounting; or other technical matters, it is not in a client’s best interest for an attorney to adopt a dual role of advocate and jury consultant. (As an aside, it has been noted that many attorneys lack the “people skills” that are mandatory requirements for providing excellent jury consulting services. Merely being “good enough” is arguably a less than noble goal when it comes to predicting human behavior.) Any attorney who thinks it is acceptable to tout his/her skills as a jury consultant is well advised to perform his/her own lobotomy.
Melissa has never been accused of being subtle in her opinions. What is driving this blog are some recent observations she and I have had about the expansion of do it yourself mock jury research into some of these do it yourselfers turning into for hire jury consultants. The do it yourself model might be better than nothing on low end cases, but it should be avoided for significant cases for reasons that are beyond the scope of this discussion. It is interesting to consider how active the Bar is in prohibiting the “unlicenced practice of law” and stopping anyone who is not a member of the a state Bar from offering “legal advice”. And, yet at the same time, some lawyers have decided to offer advice in a field beyond their areas of expertise – namely trial consulting and human decision making and all of those other areas Melissa listed. Some of these lawyers are belittling professionals who are expert in human decision making, in the process. To be fair, there are some lawyers with at least undergraduate training in psychology, etc., and there are a few with graduate degrees. Some of these people work as lawyers, some as trial consultants. (And there are some lawyer-trial consultants with decades of experience practicing on the trial consulting side – who have taken the time and effort to learn about the social sciences, trial consulting, and who hire other experts for their firm.) But, that is not the type of attorney – consultant we are discussing. It is those that open a “side business” and offer mock jury research to their peers. Most often they market to plaintiffs’ attorneys and emphasize they are cheaper than other trial consultants. Based on first hand experience with some of these individuals, some of these attorneys do not appear to understand the science behind the field of jury consulting. Jury consulting is a hybrid of many fields with centuries of academic research to be applied to evaluating lawsuits. The danger is that some of these do it yourselfers turned consultants do not know what they don’t know and they are misinforming other lawyers who have not perhaps had the opportunity to work with a bona fide trial consultant. There are risks from bias and lack of objectivity as well and the end clients – the plaintiffs’ and defendants’ themselves are put at risk when untrained and uneducated “trial consultants,” that is, those uneducated in the social sciences or research methods, are employed. And, while some of these attorney/trial consultants are merely offering to organize and facilitate mock jury research, others are offering advice beyond that. Informed consumers of trial consulting services, such as trial lawyers and insurance adjusters and claims managers, owe it to themselves and their clients to learn a bit about the science of behavioral research. This includes the fields of psychology, sociology, criminology, communications, as well as a sophisticated comprehension of research methods and statistical analyses. These are not things learned in law school and those who have a challenging case should seek out the expertise that is beyond their training and embrace the team approach of having a qualified trial consultant on their side. Some may say this is all self serving. Maybe it is. But, just as lawyers try to educate the public about not hiring unlicensed legal practitioners, we believe we have the obligation to point out that not everyone is qualified to be a trial consultant. The field of trial consulting is not licensed and, as Melissa pointed out, there may be as many shysters practicing as trial consultants as there are qualified consultants. All one must do to practice trial consulting is to say that you do, and maybe have a business card printed. However, the depth of knowledge and insight to be gained from hiring an expert trial consultant goes far beyond bringing another lawyer to the team. There is often a need to do that, especially if the other lawyer has trial expertise in a particular type of case, but extending that to evaluating jury decision making is taking it too far. Buyers beware.