Why Jury Consultants Are Now Essential In High-Stakes Trials

In the past 15 to 20 years, trial consultants have gone from luxury to necessity in big-ticket trials.

You might be surprised by how much time and money goes into picking a jury in a major case (via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

An abridged version of this article previously appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033). The longer version includes additional background and detail, plus some “war stories” that Original Jurisdiction readers should appreciate.

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Are reports of the jury trial’s death greatly exaggerated? While jury trials are less common than they were decades ago, we’ve seen a surprising number of them in the headlines in 2024: E. Jean Carroll’s civil case against former President Donald Trump for sexual abuse and defamation, Manhattan district attorney Alvin Bragg’s criminal case against Donald Trump over hush-money payments, gun prosecutions of Hunter Biden and Alec Baldwin, and the corruption case against Senator Bob Menendez.

With the exception of the Baldwin case, which was dismissed mid-trial, all these cases went to verdict. And here’s something else they probably shared in common: trial or jury consultants. [UPDATE (1:38 p.m.): Actually, there was no jury consultant in the Baldwin case—and to understand why Alex Spiro of Quinn Emanuel doesn’t use them, check out our podcast interview.]

“There’s been a big shift in the legal industry over the past 20 years,” said Dr. Eric Rudich, managing partner of Blueprint Trial Consulting. “In the early 2000s, senior partners might say, ‘Why do I need a consultant? I’ve done a million cases.’ But now they say, ‘I need a jury consultant to see how I should try this case.’ Today most attorneys and their clients view engaging a jury consultant as an integral part of their overall preparation for trial.”

“I have not gone to trial in 15 years without a jury consultant,” said Orin Snyder of Gibson Dunn & Crutcher, one of the nation’s top trial lawyers. “Trying cases is a team sport, and even if there’s a captain or quarterback, an integral part of the team in modern jury practice is a highly skilled and effective jury consultant.”

So what exactly do jury consultants do? For starters, real-life trial consulting is nothing like the television show “Bull,” where Dr. Jason Bull (Michael Weatherly) was practically a mind reader—whose team also hacked into the computers of prospective jurors, which no reputable consultant would actually do. (“Bull” was highly unrealistic even though one of its creators, Dr. Phil McGraw, actually worked as a jury consultant before becoming the television personality known as “Dr. Phil.”)

Imagine a company is about to launch a new product. Before it does so, it engages in extensive research. It surveys potential customers. It comes up with different versions of the product and compares them. It convenes numerous focus groups to gauge consumers’ reactions. This is, in a nutshell, what a jury consultant does—except the product is their client’s case.

Trial consultants provide a wide range of services. They conduct community research surveys, convene focus groups, hold mock trials, assist with jury selection, and prepare demonstrative exhibits or visual aids to educate the jury. Trial lawyers and their clients can select from this menu of options, depending on their needs and budget.

This requires consulting firms to have “a lot of disciplines under one roof,” according to Renato Stabile of Dubin Research & Consulting. Stabile and DRC’s founder, Josh Dubin, are lawyers by training. But their staff of approximately 60 also includes experts in psychology, data science, statistics, graphics, and technology. Experts with Ph.D. degrees in psychology or communications are not uncommon in jury consulting.

Turning to jury selection, for which trial consulting firms are most well-known, the process more aptly would be named “jury deselection,” Stabile said.

“You can only get rid of people from the jury, either for cause or using peremptory strikes,” he explained. “Don’t fall in love with any particular person because if the other side is doing their job, that individual won’t make it onto the jury. The most important task is to remove the so-called ‘nightmare jurors.’”

And in high-profile cases, weeding out problematic jurors is easier said than done. Lawyers must watch out for what Stabile called “stealth jurors,” who don’t reveal their true feelings about the relevant issues because they want to be part of the case. As an example, he cited the Trump hush money case, where certain people in the jury pool claimed they could be fair and impartial—until postings on their social-media accounts suggested otherwise.

Stabile and his colleagues perform extensive research to inform their work. Before trial, they might conduct a community attitude survey, surveying thousands of jury-eligible individuals in the jurisdiction where the trial will take place.

This might be followed by a mock trial lasting two to four days. Lawyers or consultants present key evidence and arguments to perhaps 50 to 100 mock jurors, jury-eligible individuals who live in the jurisdiction and are paid for their time. Throughout the presentation, jurors use iPads to answer questions and provide reactions in real time, in the same way a focus group gives live feedback on a televised presidential debate.

After the presentation is over, the jurors are divided into smaller panels to deliberate for several hours, just like real juries. Provided with jury instructions and a verdict form, they’re asked to reach a decision. The lawyers and consultants watch the deliberations, either through one-way glass or recordings. After the deliberations, the consultants might ask questions of the jurors, to figure out why they decided certain issues the way they did—just as pollsters might do for a focus group.

Because there are multiple mock juries, the consultants and lawyers can detect patterns, to see what jurors consistently find persuasive or not. The consultants then write up their findings in research reports.

This research then informs what lawyers advance as key themes of the case; which witnesses they call, and how they prep them; which evidence gets used, and how it’s presented; how the lawyers write their opening and closing statements; what questions they ask of potential jurors, in questionnaires and voir dire; and which jurors the lawyers strike.

“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.

In the biggest cases with the highest stakes, consultants might run multiple mock trials, over a span of weeks or even months.

“In a large case, the best jury research is iterative,” said Rudich. “You might use a first jury exercise to develop some potential themes and strategies, and then you do a second exercise to fine-tune those strategies.”

And then once a trial gets underway, consultants participate in the picking of the jury—a process that varies greatly, from court to court and even from judge to judge. Sometimes lawyers have a bigger role, and sometimes judges have a bigger role. Sometimes there are jury questionnaires, and sometimes there are not. In rare cases—like certain organized-crime trials, as well as some of the Trump trials—the jury might be anonymous, to the public or even to the lawyers.

The number-one factor in terms of how much jury consultants can make a difference is time. They can be maximally effective if lawyers are given lists of potential jurors well in advance of selection and the process is not rushed. A well-staffed consulting firm can research hundreds of jurors overnight, if given the opportunity. In contrast, if a judge speeds through the process or limits the questioning of prospective jurors, the consultants can’t add as much value.

As you might expect given all the work they do, hiring a jury consulting firm is not cheap. It can run anywhere from tens of thousands of dollars, for a limited exercise spanning just a few days, all the way into the millions—for hiring a consulting firm that joins the case early, assists in guiding discovery, works on developing the litigation strategy, and helps execute that strategy during a months-long trial.

In light of the cost, it’s important to manage client expectations about consultants. As David Oscar Markus of Markus/Moss, one of the country’s leading criminal defense attorneys, told me, “When clients are spending all this money on a trial consultant, we have to be clear with them: hiring a consultant is just another tool in the toolbox. Nobody is a magician or a miracle worker. We are hiring a consultant to maximize the chance of a good result.”

And good results are not guaranteed. Just ask Donald Trump, who hired consultants in the E. Jean Carroll and hush-money cases—and lost both.

Sometimes the facts, the law, or the pool of potential jurors in the jurisdiction are too unfavorable to be overcome. As a result, sometimes hiring a jury consultant actually ends in settlement rather than a trial, if the research suggests the case is too difficult to win. (Stabile of DRC noted that another reason trial consulting has grown as an industry is because litigation funders are using focus groups to assess trial risk and evaluate settlement offers, with trial-consulting services being used more frequently for due diligence and risk assessment.)

“Picking a jury is a combination of skill and luck,” Stabile said. “Sometimes you get bad bounces. There will be situations where a case just isn’t going to go your way. In the Trump hush-money case, for example, he was in a very difficult jurisdiction.”

So is hiring a consultant worth it? Most definitely, according to Snyder of Gibson Dunn: “Yes, it’s expensive—but if you have a client who can afford it, in every instance it’s a great investment.”

And nowadays, the push to engage a consultant often comes from the client.

“As trial practice has evolved, more and more clients are asking about focus groups,” said David Markus of Markus/Moss. “We have found focus groups helpful for several reasons. You get feedback about what themes resonate with jurors. You learn about what kinds of jurors are good or bad for your case. And working with a consultant also forces you to focus earlier than usual on a case, as opposed to doing all your prep shortly before trial.”

And then once trial is underway, Markus values the ability to have consultants doing social-media and other background research into potential jurors offsite, while he and his colleagues focus on what’s happening in the courtroom. In one case, the consultants tracked down a juror who was posting about the case on social media—repeatedly, in violation of the judge’s instructions. Thanks to their work, Markus was able to get that individual, whom he did not want on the jury, removed for cause.

Jury consultants can also help defense lawyers decide which witnesses to call and how to prepare them—or not prepare them, as Markus related to me.

“My friend David Gerger and I were representing an Italian national named Francesco Scaglia in a criminal antitrust case. He was this young, energetic, wonderful client, and when you spoke with him, he was engaging and funny.”

“Given the facts of the case, he had to testify. After trying to prep him for five minutes, with our jury consultant in the room, our consultant told us we had to stop. Francesco was terrible—stiff, trying too hard to memorize, and not being himself.”

“Our consultant told us to put him on the stand ‘blind’—without prep. This was terrifying to us as trial lawyers. We might spend days or even weeks prepping a client.”

“But we listened to our consultant and put Francesco on blind. He was great—charming, funny, and authentic. The jury loved him—and even though the trial ran four weeks, he was acquitted after less than two hours of deliberations.”

Jury and trial expert Robert Hirschhorn learned about the value of jury consulting in 1984, when he was going to trial in what he thought was an unwinnable case. He hired pioneering trial consultant Cathy “Cat” Bennett, a psychologist who started advising lawyers on jury selection as early as 1972.

After she revamped his case and he won, Hirschhorn was hooked on jury consulting. He went on to work for (and later marry) Bennett, and they picked juries together in several famous cases—including the 1991 criminal trial of William Kennedy Smith, in which their client was acquitted. A year later, in 1992, Bennett died of cancer—but more than 30 years later, Hirschhorn’s consulting firm still proudly bears her name.

Most jury consultants today rely heavily on data and mock trials. As Stabile of DRC told me,  “We are big believers in following the data, even when it’s counterintuitive. While experience in a courtroom is incredibly important, and I wouldn’t discount the value of an experienced trial lawyer’s intuition, nobody will have tried enough cases to match the kind of data sets we’re working with.”

Hirschhorn takes a more old-school approach. Although he also collects data and conducts focus groups—which he claims are accurate in civil cases, on the issue of liability, more than 80 percent of the time—he believes there’s no substitute for looking a potential juror in the eye, in open court, and relying on your intuition.

“A lot of people want to make you think it’s all science,” he told me. “At least the way I do it, maybe 20 or 30 percent of it is science. It’s really instinct, with a little science sprinkled in there.”

“I’m all about reading people, and I don’t let my brain talk me into or out of a juror,” he continued. “A lot of other consultants rely exclusively on juror profiles—but if my instincts go against the profile, I’ll go with my instincts. I let my heart and gut lead the way.”

He shared the story of picking a jury for plaintiff’s counsel in an asbestos case. One potential juror worked for an insurance company. Most consultants would have recommended striking her from the jury, on the reasoning that insurance companies don’t like paying out money in personal-injury cases—but Hirschhorn did not.

“Why did I leave her on the jury? She was wearing a necklace with a crystal—a very out-there necklace, not what you’d expect from an employee of an insurance company.”

“So we kept her on the case, but it settled before a verdict. Afterwards, that juror walked up to us and asked how much we would have asked for had it gone to verdict. After we said $15 million, she said, ‘That’s not enough money in this case.’ And it was the necklace that gave her away.”

Hirschhorn has been picking juries this way for forty years. But he doesn’t think jury consulting will last forever.

“Consultants will eventually be replaced by AI,” he predicted. “In the beginning, the AI tools will just crunch data and produce demographic profiles, so they won’t replace us. But once AI progresses to the point where it can evaluate nonverbal communication, recognize emotion, and detect empathy, that’s when the game will change.”

“I don’t know if that will take 20, 30, 40, or 50 years. But it will happen—eventually.”

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