July 7, 2014

Vet Your Trial Consultant

By Dr. Ken Broda-Bahm: 

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Your doctor has an M.D., a license, and potentially board certifications as well. Your lawyer has a J.D., a license, and quite possibly other honors based on experience. The legal videographer recording your deposition likely will be certified for that work. Heck, even your plumber, your home siding installer, and your chimney sweep are likely to carry a credential speaking to their knowledge, training, and experience. But if you need a trial consultant for help with strategy, research, or jury selection, then you are on your own. For consultants in this field, there is no credential, no license, and no common or predictable educational track that has led them to their practice. Those who advise lawyers on the psychological and communication aspects of legal persuasion gain their skills in a variety of ways, but the professional organizations of that field have so far demurred on the question of creating a credential, a certification, or any other message to the larger community of litigators that would speak to the background, experience, reputation, or ethical commitments of trial consultants.

I say that not to criticize my field. There are reasons — some of them good reasons — why the question of professional credentials has been an especially vexing one for this relatively young field. For one thing, the backgrounds that bring people to consulting are dizzying in their variety. Many have experience in psychology, and many like myself have a broad focus on legal communication and persuasion. But for many others, their path runs through sociology, or drama, or law, or market research or business. This diversity is more often a strength than a weakness, and these myriad views all can contribute in helping litigators step outside a narrow legal framework and see their cases from a broader and more human point of view. But for consumers of litigation consulting services, the lack of a clear benchmark can be disconcerting. Surely, just as with doctors, lawyers, videographers, plumbers, and chimney sweeps, consumers of trial consultants look to other factors: their own experience and the referrals of those they trust. But some form of credential would be a good reassurance or starting point. Absent that or any other Angie’s List for trial consultants, clients are left with one solution: Vet your trial consultant. This post will take a look at the consequences of a lack of credentialing, and share a number of questions that all clients should ask their prospective consultant. 

Litigation Consulting: A Field Without a Calling Card

Clients have asked me more than once, “Isn’t it true that anyone can call themselves a trial consultant?” I have to say that is true. But I also add that it’s safe to say that the great majority of consultants actively working are well-experienced and committed professionals. Still, this open ability to hang out a shingle — even if it only theoretically admits the unqualified — carries a meaning at a professional level. The organizations representing the field of trial-consulting are not able to speak meaningfully to litigators about the relative experience, quality, and excellence of trial consultants. Litigators, of course, rely on their own experience and word-of-mouth, but that is only an informal and partial substitute for an institutional role.

The absence has not gone unnoticed, with a recent piece in Slate magazine calling the field “unregulated and certification-devoid.” The Houston Chronicle also notes, “There are no specific degree programs, training requirements, certifications or licenses for jury consultants.” Martin Kaplan and Ana Martin (2013) also repeat the truism that “anyone can proclaim himself or herself a trial consultant” (p. 21). The services covered by trial consultants are vast, and as a recent paper argues, “there is not a single degree that would adequately prepare one for trial consultation in regards to all of these skills” (Laxton, 2014). Similar statements noting these gaps appear in virtually all published treatments on the profession. For example Amy Posey and Lawrence Wrightsman (2005) write, “The trial-consulting profession has no certification or training requirements; virtually anyone can practice as a trial consultant…. As a consequence,” the authors note, “the profession is left to struggle somewhat with its identity” (p. 229). 

That struggle has been a useful lever for some critics of the profession. In one frequently referenced article, Franklin Strier (2001) notes that “those who use the services of a trial consultant have no assurance that the practitioners they retain have even minimal desirable education, training, or ethical standards.” (see also Strier & Shestowsky, 1999 and Strier, 2011). There is one main association for trial consultants — the American Society of Trial Consultants. But simple membership in that organization has not been a good answer to those critics. While ASTC members can point to their membership as a sign of professional engagement, it is understood that anyone can become a member of ASTC simply by paying a registration fee. Membership is not intended as a statement on either engagement or professional competence. Also, as Kressel and Kressel noted in their book Stack and Sway, “In any event, trial consultants have no obligation today to join their professional organization, and many prominent consultants do not” (p. 221). That problem has increased since the Kressels wrote that in 2002. The ASTC still serves as a vital resource for connecting members and promoting education and standards. But ASTC membership does not serve as a reliable sign to litigators on the quality or experience of the consultant they hire.

This makes it all the more important for litigators and their clients to do their own research and ask their own questions. Rather than taking it on face that those holding themselves out as trial consultants have the perspective and the experience that will be most suited to your needs, you need to conduct your own investigation, starting with some simple questions for those you’re looking to hire. 

Questions to Ask Any Prospective Trial Consultant

Here is my starter list of questions for vetting your consultant. 

What Is Your Educational Background? 

What degrees do you have and in what fields are they? It’s true that degrees aren’t destiny, and they’re in no way the end of the road for education. But they still provide a framework and a foundation that the consultant will bring to the analysis. 

What Is Your Area of Specialization?

Some consultants specialize in particular areas of litigation and others don’t. Some work mostly for one side — like plaintiffs — while others work equally for all sides. Some work mostly small cases, others only larger cases, and still others work on a wide mix of case types.  

How Big Is Your Team? 

Some consultants offer full service — several other consultants, research assistants, in-house graphics, etc. — while others are smaller operations or solos. But the larger company still might understaff you, and the smaller company or solo might have a broad network to draw on. So it helps to ask who your specific team will be.  

How Do You Conduct Research? 

There is a tendency to think of a “mock trial,” as a fungible item — much the same from one shop to the next. But that isn’t true: Consultants approach their research in a broad variety of ways. So ask, how do you get recruits? How do you guard against idiosyncratic or unreliable results? How do you translate your findings into recommendations?  

Who Does the Work?

Some consulting groups feature very qualified and charismatic lead consultants who close the deal and deliver the work product. But in between that courtship and closure stage, the actual work of analysis and recommendations is done by far less qualified and experienced junior consultants. 

What Do I Get After the Research? 

By default, some consulting groups provide a data-heavy analysis of results, some go straight to the recommendations, and others will give you a mixture of the two. Some focus mostly on jury selection, others on opening statement, and still others on your overarching trial story, including witness testimony. 

What Is Your Commitment to the Profession?

Do the consultants participate in the profession’s organization, the ASTC? Many consultants are members and many are not. Many know and follow that organization’s professional standards and practice guidelines, but many do not. Many feel strongly enough in the benefits of their practice that they take on pro bono work, but many others don’t.  

What Is Your Professional Voice?

Beyond the confidential consulting done for clients, is there an identifiable public voice from your prospective consultants? Do they write books, articles, or blogs? Do they have a presence in the mass media? Do they frequently present — at a level beyond marketing their services — at conferences and CLEs?  

There are undoubtedly more questions, but these provide a good start to getting to know your potential consultants and their professional qualifications. I believe, along with many others, that it is likely that someday that quest will be aided as well by some kind of credential. And of course, when that day comes, it still will be necessary to do your own vetting. After all, no one presumes that doctors, lawyers, or chimney sweeps are all equally qualified just by virture of their credential. But still, it is good to know that as a starting point, all have earned the statement of a professional organization that they have the experience and qualifications to provide the services you need. 

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Other Posts on the Trial Consulting Field: 

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Kaplan, Martin F. & Martin, Ana M. (2006). Understanding World Jury Systems Through Social Psychological Research. Psychology Press, p. 21.

Kressel, Neil J., & Kressel, Dorit F. (2002). Stack and Sway: The New Science of Jury Consulting. Westview. p. 221. 

Laxton, Kelsey (2014). A Plea for Education in Trial Consultation: Implications for Practice and Ethics. Pre-publication manuscript, Sam Houston State University. Contact the author (KLaxton@shsu.edu) for a copy. 

Posey, Amy J. & Wrightsman, Lawrence S. (2005). Trial Consulting. Oxford University Press, p. 229.

Scott, Laura (Undated). How to Beccome a Jury Profiler. Houston Choricle, Work Section: URL: http://work.chron.com/become-jury-profiler-20736.html

Strier, F. (2001). Why trial consultants should be licensed. Journal of Forensic Psychology Practice, 1, 67-74. doi: 10.1300/J158v01n04_04

Strier, F. (2011). Reform proposals. In R. L. Wiener & B. H. Bornstein’s (Eds.), Handbook of Trial Consulting (pp. 371-392). New York: Springer. doi: 10.1007/978-1-4419-7569-0_17

Strier, F., & Shestowsky, D. (1999). Profiling the profilers: A study of the trial consulting profession, its impact on trial justice and what, if anything, to do about it. Wisconsin Law Review, 1999, 441-499. 

Warner, Joel (2012, Feb. 22). Runaway Juror: Can I Use Science to Get out of Jury Duty? URL: http://www.slate.com/articles/health_and_science/science/2012/02/the_science_of_getting_out_of_jury_duty_.html

Photo Credit: dicophilo, Flickr Creative Commons

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