This is a topic I came up with because I’ve been thinking about what is it Melissa and I really do as trial consultants and in our company, Magnus Research. We know what we do, but it is sometimes difficult to come up with ways to explain it. And, especially as we encounter lawyers who have never utilized the services of a trial consultant, finding ways to communicate to them can be challenging. So, I went back to what I believe is a basic premise of trial consulting, the psychology of litigation. That may still be vague to some, but it is important to understand that there is psychology in litigation. In fact, psychology plays many roles in litigation. I suppose it is safe to say that, at some level, most of our clients “get” this concept – otherwise they would not be hiring us. There are some, however, who hire us at the demand of their client – those clients sometimes do not get it, initially. I am focusing on psychology because that is the field from which Magnus approaches trial consulting. And, a psychological approach is the most common approach to trial consulting, though there are other fields which are appropriate to approach litigation or trial consulting. That issue has been covered in other posts on consultant qualifications. But, specific to psychology, many aspects are at play including how groups of people make decisions; how groups of people learn and remember information; and how individual and group decisions differ, or are similar. Groups, in this context, are most often juries, though they could be arbitration panels. Human decision making is complex and, by evaluating the humans making the decisions, it becomes possible to find ways to forecast outcomes and to develop strategies to achieve optimal outcomes. Experimental psychology also comes into play by ensuring that mock jury research (or other forms of research) are fair, balanced, and unbiased. Evaluating and analyzing data are aspects of psychology that also play a role in the trial consulting aspect of litigation. Then there is the use of psychology by the lawyers and litigants. This includes developing appropriate negotiating strategies and coming up with approaches to persuade the other side, juries, mediators, and judges. Having conducted mock jury (or mock arbitration or mock bench) trials, the attorney and his/her clients are prepared to develop the strategies necessary to achieve the best results. Knowing the results of research places the lawyers and litigants in the position of strength in knowing what good and bad outcomes are – thus, they can negotiate from a position of strength in this knowledge all because of the evaluations of the psychology of litigation. The law is not enough when humans are involved in making the decisions.
My education and training in social psychology was aimed toward the pursuit of a career in academia. However, experiences in graduate school led me to the realization that I would be more suited for a career in applied social psychology (in the “real world”) than becoming a college professor. My skill set is broad, such that I can easily apply my knowledge of human behavior to a wide variety of professional positions. (In fact, my first job after receiving my Ph.D. was in a large hospital, where I was Director of Marketing Research.) Since I have been employed as a litigation/trial/jury consultant, my work as a social psychologist has focused on helping attorneys and their clients obtain positive outcomes in arbitration, mediation, and trial. The research methods I employ when helping attorneys range from focus groups, to mock trials, to large scale attitude surveys. The commonality among these diverse research methods is that they all involve people, specifically, jury eligible citizens, or arbitrators, or mediators, or judges (former judges, of course), from the area where the case will be decided. When I am assisting attorneys to achieve their goal of maximizing the outcome of their case, my job duties include: (1) analyzing research participants’ questionnaire responses regarding the central issues in the case; (2) interpreting the differences between the participants’ individual reactions to the case and the opinions they express in a group context (for example, during jury deliberations); (3) working with attorneys to help them present their case in ways that will be most persuasive, to the most people; (4) testing trial themes for overall effectiveness; (5) evaluating attorneys’ and witnesses’ credibility; and a whole lot more. Although most of my clients are excellent attorneys who know far more about the law and legal issues than I will ever know, as a social psychologist, I know far more about people and human decision making than most people, including attorneys, will ever know. When I am included on a trial team, my perspective is vastly different than the attorneys’ perspective, adding considerable value for our mutual client over a narrowly focused perspective based solely on legal premises. Attorneys are experts on the law, while I am an expert on people. A winning combination!