Trial Consultants Active Behind Courtroom Scenes These Lay Experts Offer an Array of Services like Research and Jury Selection Counsel
James H. Andrews, writer of The Christian Science Monitor, The Christian Science Monitor
THE top-gun lawyers and forensic scientists on O.J. Simpson's defense "dream team" may soon be joined by other experts armed with survey data and focus-group videotapes. They are trial consultants, and these days few high-powered criminal-defense or civil litigation teams are without them.
According to Laurie Levenson, law professor at Loyola Law School in Los Angeles, Mr. Simpson's lawyers have contacted several well-known consultants. They include JoEllan Dimitrius of Los Angeles, who worked with the defense attorneys in the Rodney King and Reginald Denny cases.
Legal consultants are best known for helping lawyers select jurors who, based on the consultants' research and observation, are likely to favor a litigant's case - or who at least aren't biased against the case. But the once-common term "jury consultants" is giving way to "trial consultants," as these experts become increasingly involved in all aspects of trial preparation and conduct.
Even that term is too narrow, though, consultants say. "Many of us prefer to describe our work as litigation consulting," says Gail Pearl, a consultant with Starr Litigation Services in West Des Moines, Iowa, and a former president of the American Society of Trial Consultants. "We assist lawyers in settlement negotiations, mediation, and arbitration proceedings as well as in court trials."
The popular image of trial consultants is still that of the guru who, listening intently to potential jurors and watching their every gesture and blink, quietly advises a lawyer to accept or "strike" jurors during voir dire questioning. Drawing on training in psychology or sociology, such consultants seem almost to read the minds of possible jurors.
Ms. Dimitrius and some other consultants do seem to have uncanny insights about people's attitudes that aid in jury selection. But some consultants shy away from what one calls the "intuitive model" of consulting.
Dimitrius worked briefly for Litigation Sciences Inc., based in Culver City, Calif., one of the largest trial-consulting companies. But her style didn't quite fit with the firm's approach, says Mark Phillips, director of Litigation Sciences' Boston office.
"We believe in the law of large numbers, in the predictive reliability of extensive survey data," Mr. Phillips says. "Our strength isn't in reading tea leaves and evaluating nonverbal communications," he says, adding that he respects Dimitrius's skills.
Trial consultants offer a wide array of services besides counsel in jury selection. Through questionnaires, mock trials, focus groups, shadow juries, post-trial interviews of jurors, and other techniques, they help lawyers identify issues that might preoccupy jurors (which may be different from the legal issues that lawyers focus on), select and hone persuasive arguments, and develop trial strategy. …