By Dr. Ken Broda-Bahm:
I had one important early experience in trial consulting that I've kept in my head over the years. It was actually on my first job after moving to Persuasion Strategies many years ago. Attorneys we knew were working with a very large national litigation consulting group in hosting a mock trial. The client wanted to go with the very large firm, but the attorneys we knew wanted a consultant from our team to be on-site, just to provide some feedback. So I came to watch the mock trial and to share my thoughts. I had zero knowledge of the case before arriving at the research site -- I didn't read any briefs and hadn't had any conversations with the attorneys about it. And I had no involvement in the case preparation afterward. I just watched for that one day, and then drafted my notes into a memo and sent it off. That memo focused on case strengths, weaknesses, what our message should be, what kind of jurors we want, etcetera, but all in all, it was just a memo that ended up being, I think, about 12 pages. I sent it to the attorneys who invited me, and that was it. I didn't hear anything back at the time.
It wasn't until more than a year later when I heard from one of the attorneys. He said that the team had won, and more importantly had used my memo as a guide to how they tried their case. More than the 150-page report from the larger group, and more than the daily involvement from their team of consultants, the team relied on the approach I briefly sketched out after just one day's contact, involving only an hour of summary argument from each side. Reflecting on it, the attorney said, "It is interesting...We got the most useful advice from the person who knew the least about the case." Then he went on to say that he thinks sometimes we consultants try to know too much. When we learn the case like the attorneys learn the case, he said, we become just another voice at the table, just like the attorneys. We start to think the same, to share the same assumptions and mindset, and to look at the case through the same filters. And that, he stressed, can limit our usefulness. That advice stayed with me since then. So in this post, I wanted to share some thoughts on how a consultant ought to know enough to be useful, but not so much that there's a risk of becoming an echo of the attorney's perspective.