This post builds on the evolution of our experiences as trial consultants and goes further back in that history than a related post on a similar topic. When Melissa and I first developed the marketing materials for our new trial consulting practice (in 1993), we started from scratch on everything. In time, we developed brochures, slide shows (before PowerPoint) and even, in 1996, our first website. As someone with a marketing background, I thought it was important to have a simple tagline to use to explain what we do. After considerable thought, we tried “Reducing Uncertainty” as a way to communicate that we evaluate cases to help attorneys, and their clients, more fully appreciate potential case outcomes. It was sort of a play on the idea of evaluating the odds. But, after using Reducing Uncertainty for a while, we realized that it was not resonating with certain clients- it was not understood by all of our clients or potential clients. To the contrary, few of our potential clients would admit being uncertain about their cases – or anything else for that matter. These prospects were, instead, certain they knew what they needed to know and they did not want anyone to tell them otherwise. These attorneys may have been wrong on the topic, but they were not uncertain! One went as far as to tell Melissa “I’ve been trying cases for 35 years; what are you going to tell me that I don’t already know?” (I won’t go into her response, but he did listen and got a tremendous return on the investment in research!) Fortunately, not all prospective clients were like those I just described and, as discussed in other posts, they knew what they didn’t know. But, we learned, relatively quickly, that we needed a better way to explain what we do and we came up with “Insights for Success.” That tagline is a better description of what we do, that is, conducting solid, social science based research, about the case. We provide objective data to the trial team, along with our recommendations for case or trial strategies, to help the team achieve the best outcome, a successful outcome, for their clients. I have seen some trial consultants use “sexier” tag lines like “helping you win your cases,” but the reality is, not all cases are winners. Defining success or winning is the subject of another post but it is not as black and white as it first seems. A trial consultant should, regardless of tagline, bring a different perspective to the trial lawyer or team to improve the odds, reduce the uncertainty, and lead to better outcomes for the ultimate client, while explaining and staying within the limitations of research. For us, that is encapsulated in “Insights for Success” – though we will always seek the best way to communicate this message.
As I have mentioned in previous posts, attorneys and psychologists have vastly different personalities and philosophies of life. As a social psychologist, I am, first and foremost, a scientist. Generally speaking, I require facts, figures, data, statistical analyses, and other science based information to make an informed decision about something important. Absent this type of information, I am likely to admit uncertainty about things. For example, when selecting a jury, attorneys often fail to ask meaningful questions of the prospective jurors. This happens for many reasons, including they forget to acknowledge someone who wants to answer a question, they run out of time because they lost track of it, they allow one potential juror to monopolize the voir dire process, etc. Inevitably, when they ask my opinion about this prospective juror, I unhesitatingly say, “I don’t know,” or “I’m not sure,” or “I’m uncertain.” When I am then faced with a look of despair from my client, who cannot believe I, the so called expert on jury selection, had the audacity to say I have no idea whether the person (who never said a word during the entire selection process) is good or bad for our side of the case, I explain I have been provided no basis for making a decision. The next thing that happens, almost without fail, is the question, “Well, what is your ‘gut’ reaction to this juror?” followed by an admonition to hurry and make my decision before the judge gets impatient. My “gut reaction”? The mere thought of having a gut reaction to a social psychologist is tantamount to heresy! In contrast to social psychologists, attorneys are trained to rely on past case outcomes, legal precedents, their self assessed powers of persuasion, and their initial, or “gut” reaction when it comes to predicting whether someone who has remained silent and composed throughout jury selection will be a plaintiff’s juror or a defense juror. It seems, to many attorneys I have encountered, that making any decision whatsoever, right or wrong, is better than admitting uncertainty about the matter at hand. Oh, the lessons David and I have learned!
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