Alex Spiro doesn’t use them. He believes his instincts are better than anything he can get from a consultant.
I had a client who was determined to testify despite my objections. Ok I said, why don’t you testify before a mock jury. After he heard their comments he decided it was not such a good idea.
Yes! For essentially the same reasons, I often video myself doing a mock cross-examination of a client, and then we go back through it together. It's cheaper than hiring a mock jury, and it usually convinces my client that our case isn't quite so bulletproof as he/she/it assumed. I particularly enjoy pretending that I'm our opponent giving part of his closing argument, too late for effective objections or counter-strategies, using quotations drawn directly from the mock cross-x.
Instincts are good, but sometimes lawyers have little rules of thumb they learned back in school or from a mentor they've never really checked -- maybe the real value of consultants is just overcoming those :-)
I mean, I know they can't be true because sometimes the rules of thumb say things like -- you don't want a lawyer on the jury -- for **both** sides and that can't possibly be true.
Yes, obviously there are going to be real and substantial statistical effects of jury composition. But can a jury consultant predict those any better than an experienced trial lawyer? If it's just intuition, maybe the trial lawyer is better but what makes me skeptical the consultants offer anything more is that if they are really doing the kind of data driven, evidence based approach that would justify the practice then they should be able to point to statistical evidence showing a clear benefit.
After all, the only way you can really test if some assumption or method works is by gathering data and comparing statistically meaningful samples with and without that method/feature. So the data the consultants need should also include the data needed to -- if not prove -- at least suggest efficacy.
Maybe there is evidence of effectiveness I'm not aware of but I'd have expected consultants to trumpet that kind of thing.
One thing about jury consultants is they don't want to be identified as such in front of the jury. I have rarely used them (I was on the plaintiff's or non-profit side and so not usually cost-effective). The Defense would always act that when the judge introduce the team it not identify anyone as a "jury consultant." In such cases I think one should object to hiding the team from the jury (though it is unlikely to work).
Why should one object to hiding the team from the jury?
While I'm skeptical of jury consultants they aren't doing anything lawyers aren't trying to do anyway but the label of jury consultant probably can ruffle juror feathers (they're trying to manipulate me). I'd think that kind of impact would be more prejudicial than probative for the jury -- if it's even appropriate to call their attention to the internal dynamics of representation at all?
I've known lawyers who've gone to fairly elaborate lengths to hire a couple or three college students by the hour to show up and watch a particular jury trial — and interviewing them, perhaps through a colleague who hasn't been in the courtroom and whom they therefore couldn't recognize, every evening for their reactions — without telling them which side had hired them. "Po'-boy mock jurors," I've sometimes heard these called.
To avoid confirmation bias issues and more closely simulate the actual jurors' disinterest from the result.
Someone who shows up day after day and just watches, though, is eventually going to get challenged by the side that doesn't know why, and the judge may well ask outside the jury's presence, "Who are you and are you connected with either side?" They can truthfully answer, "I don't know" to the second question, but then the lawyer has to be prepared for the judge to look at you and say, "Do YOU know, counsel?" At which point, come clean. You didn't need permission, nor now forgiveness, but coverups aren't okay.
Yes. A number of prominent jury consultants—like Josh Dubin, mentioned here—maintain active law licenses, and they present themselves in court like any other lawyer on the team (but the jurors might notice if they vanish after jury selection).
Jury consultants are shockingly expensive, a monumental time suck and a constant source of annoyance as they claim to need to be in charge without recognizing they're just one of the many laboring oars in putting a trial together. At the end of the day, it's still just voodoo, there being no way to know with certainty whether they helped or just sucked up time and money.
We do it because we want to take advantage of every possible benefit for our clients, but the ugly truth is that we have no idea whether they helped or not.
I'm consoled by the counsel of Sun Tzu, who recognized that no plan survives first contact with the enemy, and Dwight Eisenhower, who said that plans are useless, but planning is essential. If jury consultants are essential, it's probably in the same sense.
My one war story about a civil jury trial in which I know the other side employed jury consultants, but I didn't, involved Mr. Hirschhorn.
I hold him in high regard, as do, I think, most other experienced Houston trial lawyers. But during voir dire examination of one particularly outspoken juror, his client's lawyers (I presume at his advice) and I came to very different conclusions: They all thought I'd be spending a peremptory strike on this juror, in anticipation of which they'd already tried to lay a very thorough-going record that he believed himself to be fair and would try in good faith to satisfy his oath. But still, on a great many of the underlying fact issues, by his own admission, he held very, very strong prior opinions, based on personal experiences involving his own daughter. They were certain that those prior opinions would cut in their client's favor, and that I'd be eager to get rid of this guy.
I wasn't. I just read the guy very differently. So I neither moved to excuse him for cause nor spent a strike on him.
And I was pleased in due course when he turned out to be the presiding juror! And indeed, based on my interview with him after the verdict, he was my side's strongest advocate in the jury room!
The problem was, only he and one other juror came out for my side, and the resulting verdict was 10/2 against my client. I was right about that juror — but not about most of the rest. Did Mr. Hirschhorn's advice win the case for his side?
Neither I, nor my opposing counsel, nor the judge, nor any of the excused venire or serving jurors, will ever know. But I tend to think not. Trial lawyers say it's not how many you've won or lost that shows your skill, it's how many you won that you should have lost and how many you lost that you should've won. We did our best, and I believed in my client's case, but I can't say it's one I should've won.
“I have not had any recent case where the results of a jury focus group did not materially impact my ultimate trial strategy,” said Snyder of Gibson Dunn.
===end quote===
This statement does not surprise me: Knowing nothing more than that this was a Gibson Dunn lawyer commenting on jury consultants whom his firm had recommended to his clients, more than likely at considerable additional expense in cases already vastly expensive, I'd hardly expect such a statement to say, "Yeah, that was just a damned waste of money, and we really let down our client by recommending that it spend that money."
Which is not to say that he's wrong! Or insincere! But he is speaking from a position that involves some intrinsic biases.
I've been involved in cases whose stakes justified jury consultants only a handful of times. None of them went to verdict, so it's very hard to assess how accurate their predictions were.
But they can have subtle and nonobvious other benefits — even, and perhaps especially, well BEFORE trial.
In the biggest such case, in which I was representing a group of six very dissimilar banks — one from Paris, another from Montreal, one (in receivership) from Pittsburgh, and the other three from New York — on a gigantic lender liability case, we didn't do a full mini-trial (which is oxymoronic), but rather presented three panels of mock jurors (recruited from among visitors to a middle-brow local shopping mall) with two competing opening statements setting out each side's theory of the case and key evidence.
First: I found that taking myself out of the mindset of a defense lawyer, for purposes of writing the plaintiff's lawyer's opening statement, was extremely valuable to me as a structured, formalized study of our opponents. My main concern was that we come up with a presentation that was AT LEAST as strong what our actual opponents were likely to produce, so I personally wrote that opening statement and did the video for it — using a teleprompter, a novel experience for most lawyers. For our clients' opening statement, I had my second chair write and perform the statement, and I invested a lot of time challenging him to come up with his very best work as well. When we were finished, after many drafts and then several re-shoots to create the most polished and accurate presentations that we were capable of producing, we both understood the essentials of both sides' respective cases in a more thoughtful and comprehensive way — which in turn became useful in making tactical decisions during further pretrial discovery and briefing.
The other big surprise was the effect that the videos of the opening statements — and then the videos of the three test panels' 30-minute mock deliberations after viewing them — had on our clients, who were the proverbial cats disinclined to being herded, despite their shared financial interests that led them to hire shared counsel. The banker representing the hardest hardliner among the client group was ashen-faced: "Jesus, Dyer! I was almost completely convinced, watching you do the opening statement for [the plaintiff], that you'd jumped ship and turned traitor on us! Damn, man, I'm glad you're representing us and not them!" That was nice. But before that point, he'd never quite believed us when our firm had told the group that this was indeed a losable case, and that if we lost it, we'd lose bigtime.
But my second-chair's very capable work also had a big effect on each of the clients, reassuring each that despite their disparate negotiating positions and inclinations, someone could still weave their side of the story into a coherent matrix, something in which we were successfully avoiding the plaintiff's "divide & conquer" strategy. They could see that by hanging together, they lowered their odds of hanging separately — not based on what any lawyers were telling them, but based on what these mock jurors were telling them.
The net effect was a client group that became more confident in its counsel and less disputatious in their dealings with one another. Given the hundreds of millions at stake in the litigation, the low seven-figure sum we spent on the jury consultants who organized the presentations and led the focus groups was definitely worth it.
Even in serious commercial litigation involving eight or nine figures, though, it's hard for lawyers to convince themselves, much less their clients, to drop that kind of cash on something that's so close to pseudo-science and hocus-pocus. Whether it's a dispensable luxury or a must-have is very dependent on the case, the stakes, and the nature of the lawyers and clients.
Eventually, AI will replace human juries. I think that we will still have juries, but some or all of the members will be AI personalities that are each designed to represent a particular cohort of the human population.
Alex Spiro doesn’t use them. He believes his instincts are better than anything he can get from a consultant.
I had a client who was determined to testify despite my objections. Ok I said, why don’t you testify before a mock jury. After he heard their comments he decided it was not such a good idea.
Yes! For essentially the same reasons, I often video myself doing a mock cross-examination of a client, and then we go back through it together. It's cheaper than hiring a mock jury, and it usually convinces my client that our case isn't quite so bulletproof as he/she/it assumed. I particularly enjoy pretending that I'm our opponent giving part of his closing argument, too late for effective objections or counter-strategies, using quotations drawn directly from the mock cross-x.
Instincts are good, but sometimes lawyers have little rules of thumb they learned back in school or from a mentor they've never really checked -- maybe the real value of consultants is just overcoming those :-)
I mean, I know they can't be true because sometimes the rules of thumb say things like -- you don't want a lawyer on the jury -- for **both** sides and that can't possibly be true.
Yup, that's right (re: Spiro); there was no jury consultant in the Baldwin case. I've updated the post to note this. Thanks for noting!
Yes, obviously there are going to be real and substantial statistical effects of jury composition. But can a jury consultant predict those any better than an experienced trial lawyer? If it's just intuition, maybe the trial lawyer is better but what makes me skeptical the consultants offer anything more is that if they are really doing the kind of data driven, evidence based approach that would justify the practice then they should be able to point to statistical evidence showing a clear benefit.
After all, the only way you can really test if some assumption or method works is by gathering data and comparing statistically meaningful samples with and without that method/feature. So the data the consultants need should also include the data needed to -- if not prove -- at least suggest efficacy.
Maybe there is evidence of effectiveness I'm not aware of but I'd have expected consultants to trumpet that kind of thing.
One thing about jury consultants is they don't want to be identified as such in front of the jury. I have rarely used them (I was on the plaintiff's or non-profit side and so not usually cost-effective). The Defense would always act that when the judge introduce the team it not identify anyone as a "jury consultant." In such cases I think one should object to hiding the team from the jury (though it is unlikely to work).
Why should one object to hiding the team from the jury?
While I'm skeptical of jury consultants they aren't doing anything lawyers aren't trying to do anyway but the label of jury consultant probably can ruffle juror feathers (they're trying to manipulate me). I'd think that kind of impact would be more prejudicial than probative for the jury -- if it's even appropriate to call their attention to the internal dynamics of representation at all?
I've known lawyers who've gone to fairly elaborate lengths to hire a couple or three college students by the hour to show up and watch a particular jury trial — and interviewing them, perhaps through a colleague who hasn't been in the courtroom and whom they therefore couldn't recognize, every evening for their reactions — without telling them which side had hired them. "Po'-boy mock jurors," I've sometimes heard these called.
That sounds like a good idea! But why did they need to interview them by someone they didn't recognize?
To avoid confirmation bias issues and more closely simulate the actual jurors' disinterest from the result.
Someone who shows up day after day and just watches, though, is eventually going to get challenged by the side that doesn't know why, and the judge may well ask outside the jury's presence, "Who are you and are you connected with either side?" They can truthfully answer, "I don't know" to the second question, but then the lawyer has to be prepared for the judge to look at you and say, "Do YOU know, counsel?" At which point, come clean. You didn't need permission, nor now forgiveness, but coverups aren't okay.
Yes. A number of prominent jury consultants—like Josh Dubin, mentioned here—maintain active law licenses, and they present themselves in court like any other lawyer on the team (but the jurors might notice if they vanish after jury selection).
Jury consultants are shockingly expensive, a monumental time suck and a constant source of annoyance as they claim to need to be in charge without recognizing they're just one of the many laboring oars in putting a trial together. At the end of the day, it's still just voodoo, there being no way to know with certainty whether they helped or just sucked up time and money.
We do it because we want to take advantage of every possible benefit for our clients, but the ugly truth is that we have no idea whether they helped or not.
Commendably blunt but entirely accurate, shg.
I'm consoled by the counsel of Sun Tzu, who recognized that no plan survives first contact with the enemy, and Dwight Eisenhower, who said that plans are useless, but planning is essential. If jury consultants are essential, it's probably in the same sense.
My one war story about a civil jury trial in which I know the other side employed jury consultants, but I didn't, involved Mr. Hirschhorn.
I hold him in high regard, as do, I think, most other experienced Houston trial lawyers. But during voir dire examination of one particularly outspoken juror, his client's lawyers (I presume at his advice) and I came to very different conclusions: They all thought I'd be spending a peremptory strike on this juror, in anticipation of which they'd already tried to lay a very thorough-going record that he believed himself to be fair and would try in good faith to satisfy his oath. But still, on a great many of the underlying fact issues, by his own admission, he held very, very strong prior opinions, based on personal experiences involving his own daughter. They were certain that those prior opinions would cut in their client's favor, and that I'd be eager to get rid of this guy.
I wasn't. I just read the guy very differently. So I neither moved to excuse him for cause nor spent a strike on him.
And I was pleased in due course when he turned out to be the presiding juror! And indeed, based on my interview with him after the verdict, he was my side's strongest advocate in the jury room!
The problem was, only he and one other juror came out for my side, and the resulting verdict was 10/2 against my client. I was right about that juror — but not about most of the rest. Did Mr. Hirschhorn's advice win the case for his side?
Neither I, nor my opposing counsel, nor the judge, nor any of the excused venire or serving jurors, will ever know. But I tend to think not. Trial lawyers say it's not how many you've won or lost that shows your skill, it's how many you won that you should have lost and how many you lost that you should've won. We did our best, and I believed in my client's case, but I can't say it's one I should've won.
===begin quote===
“I have not had any recent case where the results of a jury focus group did not materially impact my ultimate trial strategy,” said Snyder of Gibson Dunn.
===end quote===
This statement does not surprise me: Knowing nothing more than that this was a Gibson Dunn lawyer commenting on jury consultants whom his firm had recommended to his clients, more than likely at considerable additional expense in cases already vastly expensive, I'd hardly expect such a statement to say, "Yeah, that was just a damned waste of money, and we really let down our client by recommending that it spend that money."
Which is not to say that he's wrong! Or insincere! But he is speaking from a position that involves some intrinsic biases.
I've been involved in cases whose stakes justified jury consultants only a handful of times. None of them went to verdict, so it's very hard to assess how accurate their predictions were.
But they can have subtle and nonobvious other benefits — even, and perhaps especially, well BEFORE trial.
In the biggest such case, in which I was representing a group of six very dissimilar banks — one from Paris, another from Montreal, one (in receivership) from Pittsburgh, and the other three from New York — on a gigantic lender liability case, we didn't do a full mini-trial (which is oxymoronic), but rather presented three panels of mock jurors (recruited from among visitors to a middle-brow local shopping mall) with two competing opening statements setting out each side's theory of the case and key evidence.
First: I found that taking myself out of the mindset of a defense lawyer, for purposes of writing the plaintiff's lawyer's opening statement, was extremely valuable to me as a structured, formalized study of our opponents. My main concern was that we come up with a presentation that was AT LEAST as strong what our actual opponents were likely to produce, so I personally wrote that opening statement and did the video for it — using a teleprompter, a novel experience for most lawyers. For our clients' opening statement, I had my second chair write and perform the statement, and I invested a lot of time challenging him to come up with his very best work as well. When we were finished, after many drafts and then several re-shoots to create the most polished and accurate presentations that we were capable of producing, we both understood the essentials of both sides' respective cases in a more thoughtful and comprehensive way — which in turn became useful in making tactical decisions during further pretrial discovery and briefing.
The other big surprise was the effect that the videos of the opening statements — and then the videos of the three test panels' 30-minute mock deliberations after viewing them — had on our clients, who were the proverbial cats disinclined to being herded, despite their shared financial interests that led them to hire shared counsel. The banker representing the hardest hardliner among the client group was ashen-faced: "Jesus, Dyer! I was almost completely convinced, watching you do the opening statement for [the plaintiff], that you'd jumped ship and turned traitor on us! Damn, man, I'm glad you're representing us and not them!" That was nice. But before that point, he'd never quite believed us when our firm had told the group that this was indeed a losable case, and that if we lost it, we'd lose bigtime.
But my second-chair's very capable work also had a big effect on each of the clients, reassuring each that despite their disparate negotiating positions and inclinations, someone could still weave their side of the story into a coherent matrix, something in which we were successfully avoiding the plaintiff's "divide & conquer" strategy. They could see that by hanging together, they lowered their odds of hanging separately — not based on what any lawyers were telling them, but based on what these mock jurors were telling them.
The net effect was a client group that became more confident in its counsel and less disputatious in their dealings with one another. Given the hundreds of millions at stake in the litigation, the low seven-figure sum we spent on the jury consultants who organized the presentations and led the focus groups was definitely worth it.
Even in serious commercial litigation involving eight or nine figures, though, it's hard for lawyers to convince themselves, much less their clients, to drop that kind of cash on something that's so close to pseudo-science and hocus-pocus. Whether it's a dispensable luxury or a must-have is very dependent on the case, the stakes, and the nature of the lawyers and clients.
Thanks for all the smart and insightful comments, especially those reflecting your real-world experiences. My readers are the best!
Eventually, AI will replace human juries. I think that we will still have juries, but some or all of the members will be AI personalities that are each designed to represent a particular cohort of the human population.