Trial consultants are experts in psychology or other social sciences. Attorneys
hire them to help find the best approach to a particular trial.
J. Thomas Dalby is a trial consultant and forensic psychologist. He traces
the roots of the profession to the early 1970s. That's when lawyers in the
U.S. began to hire psychologists to help them select juries.
There are many reasons why attorneys may want to use a trial consultant.
They may, for example, want to find out how a particular circumstance (such
as a tricky piece of evidence) will be perceived by the jury.
They may want to test an important case ahead of time so they can be sure
to avoid any surprises. Or they might want to determine the most ethical way
of dealing with a sensitive situation, such as a child witness.
Trial consultants assist lawyers at any stage of the trial process by:
- Identifying key issues and developing an overall strategy for presenting
- Developing a questionnaire to help attorneys assess the potential jurors
- Developing questions for use during voir dire -- the stage in which jurors
- Preparing witnesses so the jury sees them in a favorable light
- Finding ways to present evidence and question witnesses that will make
a good impression on jurors
- Finding ways to most easily explain complicated evidence to juries
- Helping attorneys write opening and closing statements that will persuade
- Conducting interviews with the jurors after the trial is over -- sometimes
to find out what went wrong
Trial consultants use many techniques.
Community surveys help determine general attitudes towards particular
issues in the case.
Focus groups will be told about the case and given the chance to
relay their feelings about it. This gives lawyers a chance to preview public
attitudes. However, a focus group allows the trial consultant to examine key
areas more closely by asking participants why they feel a certain way.
Mock trials give attorneys the chance to test their case on a group
of people similar to real jurors.
Written juror questionnaires are used to get to know the potential
Voir dire questions may be designed by trial consultants to assist
in jury selection.
Video and other media are used to prepare witnesses and attorneys
so that they present the most favorable image in the courtroom.
Post-trial interviews are done to explain why the jurors made the
decisions they did.
"What the trial consultant does is really case-specific," says consultant
Matt Milano. "What is important is the trial consultant's analytical ability
and understanding of good research design."
Some trial consulting firms offer the full range of services to assist
attorneys throughout the trial process. Others may specialize in a particular
area, such as selecting jurors.
Many firms also specialize in either criminal or civil cases, or in a particular
type of case, such as accident claims.
Dalby says that more and more trial consultants now help avoid trials through
mediation or arbitration.
Patrice Truman supports this view. "When many cases have a mock trial first,
the attorney will, based on that feedback, find a way to resolve the case
out of court," she says. "This is a cost savings to the county."
Some trial consultants also do other types of work. Some practice as clinical
psychologists or hold posts as university professors. Others work full time
as trial consultants.
To be a full-time trial consultant, you should be prepared to work long
hours in a high-pressure environment. There may be a lot of travel involved.
"[In American] civil trials, the awards arising have been much higher than
in Canada," says Dalby.
"Therefore, the parties in a legal dispute have been able to afford to
hire trial consultants. In Canada, jury selection is a far more restrictive
process where very little information about prospective jurors can be obtained.
So a trial consultant focusing only on this area will probably not have a
There are also differences for the future. "In the U.S., it has gotten
to the point where one prominent New York attorney was quoted as saying that
if the case is large enough, it's almost malpractice not to use a trial consultant,"
"If the growth in the past is any indication, trial consulting will be
an ever-expanding market," says Dalby.
Milano believes the future is promising, but there are still some unresolved
issues. "The big question is what is going to happen in terms of regulation."
Milano notes that the American Society for Trial Consultants has a long-term
goal of regulating and developing sets of standards for practices such as
"Trial consulting is still an unregulated profession. Anyone can call themselves
a trial consultant," says Dalby. "Despite this, there is remarkable growth
in trial consulting as lawyers recognize that professionals with other expertise
can help them win trials.