Misinformation is a dangerous thing. I’m sure it happens in every field, but due to the fact that there are no set standards for qualifications of trial consultants, misinformation abounds. Trial consultant qualifications are a topic for another post, but in this post I want to relate some of the non common sense parts of trial or jury consulting. I will never forget an attorney who said to us, “My clients hire me because they think I know how to try cases; how can I tell them I need to hire a consultant to tell me how to try cases?” He was serious! The answer of course, is trial consultants complement the trial lawyer’s skill set by analyzing what we term the “human dynamics” of litigation. Trial consultants, especially those who are psychologists, are experts on human behavior and decision making. These are not subjects taught to lawyers in law school. A few, very few, of the attorneys with whom we have worked have had undergraduate degrees in psychology. Only1 or 2 had advanced degrees in the social sciences. As a result we (mainly Melissa) have had to educate them on many aspects of human decision making. Concepts like primacy and recency are fairly well understood. Less understood are concepts like defensive attribution. Explaining how we use statistics to evaluate survey responses and develop juror profiles is also a challenging thing. We report survey responses in the aggregate in chart form and some attorneys have said they do not understand how to read charts or understand research results. All of which is to say, what we do as trial consultants is designed to complement the trial team and provide expertise beyond that possessed by trial lawyers. The concepts understood by, and expertise possessed by, qualified trial consultants can be learned, after all 4 to 6 years of post graduate education is a learning process, but they are not common sense.
Knowing what one doesn’t know is, in my opinion, just as important as knowing anything else. For example, I have no hesitation in obtaining the professional opinion, as well as following the advice of my dentist, who spent many long years in dental school during the time I was studying for my Ph.D. in social psychology. Along these lines, I cannot understand why someone who does not have a Ph.D. in social psychology believes he/she knows anything, not to mention, just as much, as I do about my field of expertise! I am often asked, in social settings, why I, as a psychologist, believe this, that, or the other thing, only to be interrupted by some uninformed person who insists “everyone” knows the answer to the question I have been asked. When this happens, I usually let the uninformed person blather on, preferring instead to refresh my drink or take a stroll out of this person’s presence. However, when I am with a client or a prospective client who, like the uninformed party guest, says something to indicate he/she believes my highly trained observations and recommendations are nothing more than common sense, I cannot, of course, disengage myself; instead, I must painstakingly and politely explain why nothing could be further from the truth. Due to the vast personality differences between most trial lawyers/litigators and psychologists, it is almost impossible for a psychologist to “win an argument” with a lawyer, particularly one who truly believes his/her misinformation is correct. I have found that, for me, the best approach is a kind expression conveying something along the lines of “you poor lost soul,” followed by an explanation peppered with research results, statistical premises, and other information that contrasts with the incorrect information, and if that doesn’t work, challenging the uninformed person to work with me, then tell me I don’t know something more about people, psychology, jury behavior, group dynamics, etc. etc. than what can be derived from mere common sense.
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