Trial Consulting Work
What do we do?
Jurors’ beliefs and opinions drive deliberations. Discovering those beliefs and opinions is the easy part. The real work is incorporating those beliefs and opinions into your discovery and trial strategy. That’s what we do. Here are some things to think about incorporating into that next great case.
Surveys for Case Assessment
Strategic discovery and case plans
Strategic deposition plans for a key witness(es)
Pre-trial Focus Groups (last 6 weeks before trial)
Contingent Engagements on Cases
In the judgment of some, cases with the potential for substantial recoveries require an “all hands-on deck” approach to case preparation and jury research. These cases often require more work sessions, more time working through deposition strategy, more surveys, more focus groups, more time on 30(b)(6) deps, more time on exhibits, more time in mediation and trial prep, and more involvement in general. Rather than incur ongoing expenses for each individual bundle of service, contingent engagements provide a prioritized, low risk, relatively unlimited way to engage us as trial consultants and members of your team. Generally, these engagements are contingent on a 1-day (gratis) review of the case and a contract signed by the client providing for a fee of 3% of the gross recovery. Talk to us if you have any questions, and feel free to ask about our former clients who have used this approach. For other cases feel free to ask for a fee schedule for any of the work listed here when done on a non-contingent basis.
Develop a strategic discovery, deposition, and case plan.
This is a foundational document that is used for discovery and trial preparation. It is the key to understanding the opposition case in detail and incorporates what we know about juror opinions and beliefs. It encompasses everything from defense expert testimony to demonstrative exhibits. This analysis is fundamental to discovery and fact development, deposition strategy, witness preparation, selection of experts, preparation for dispositive motions and for anticipating needed motions in limine. The final written product provides a thorough script for opposition presentations in surveys, focus groups, and mock trials.
Tangible work product – Written, detailed Landmine outline that exposes the strongest facts and conclusions for the opposition as well as a Rebuttal plan that attempts to make the landmines in the case irrelevant or immaterial. Holes in the case rebuttal and needed discovery are identified as part of this process.
Tiime Required – Typically 2 days
Develop a strategic deposition plan for a key witness(es).
There are key opposition witnesses whose depositions can make or break a case. This kind of work session identifies the key takeaways for this kind of witness, getting admissions using the Miller Mousetrap, polarizing the witness when necessary, and developing strategic deposition exhibits for the witness.
Tangible work product – Written, detailed outline of deposition content and strategic takeaways with exhibits whenever possible.
Time Required – 1-2 days
Discovery Surveys of Case
As part of the opinion research needed on a case we frequently recommend surveys of voter-eligible citizens in an appropriate venue for the case (often where the case is pending if the population is over 100K). We can include or exclude particular groups from the survey depending on the case issues. These surveys are based on a collaboratively developed, neutral narrative that includes the case critical facts for both sides, and case critical documents that the jury will see when the case is tried. In addition to collecting demographic information about each respondent the survey will also include a variety of questions to flesh out juror attitudes and beliefs about a case. Each individual response can be tracked back to the survey participant’s demographic profile and their answers to other questions. Repeated surveys can test the power of alternative strategic approaches. The standard report runs over 100 pages and includes the narrative responses from each participant, graphics summarizing responses and the raw data itself.
The data obtained from this process is robust and can provide clear direction on case strategy. It provides more information/dollar than other approaches and is the favored approach in the corporate world.
Tangible work product – Survey Narrative, Report >100 pages with respondents’ narrative responses as well quantitative responses to survey questions, Executive summary, Raw Data.
Time Required – Typically firms need several days to summarize the case from both sides and provide key documents and information. More time is required to review and approve drafts of the survey and questions. Once complete, survey results come back in a week or less.
Focus groups are the first thing that many lawyers think about when they consider hiring a trial consultant, and that’s also why many trial consultants don’t do much else. I have written a book about conducting focus groups (Focus Groups: Hitting the Bulleye) and have done more than 1000 groups across the U.S. Covid prompted the development of online “zoom” focus groups and I began doing zoom focus groups within a few months of the covid shut down. The biggest difference between the “zoom” focus groups and traditional focus groups is the importance of technology working correctly and not interrupting the process. This is easier said than done when you have 8-10 strangers all trying to connect and get their video and microphones working. Once that hurdle is overcome, the discussions are very similar to what you might hear in an “in person” focus group. The costs of doing online focus groups are about what it would cost with a live group.
The traditional focus group is done in person with all of the focus group members in the same room at the same time. The formats used to create the discussion can be customized based on the case. The most common formats are a moderator led discussion where the moderator acts as a neutral and introduces case facts and then a discussion that pulls out jurors’ thoughts and beliefs about case issues. The 2nd most common format is for attorneys to do brief “clopenings” in the case and then the trial consultant moderates the jurors for the “debrief” and deliberation. Focus groups can be structured in dozens of ways, including groups that solely do witness or exhibit evaluations.
Tangible Work Product – Attorneys observe the group to capture the discussion, but will generally also have the group video-recorded and/or transcribed. In addition, the participants are often asked to answer brief questions in writing about their thoughts and feelings.
Time Required – Typically a minimum of 1-2 days in prep and 1 day for the exercise.
Mock trials are larger, longer focus groups that take place after discovery is complete. They generally take 1-2 days and involve 24-36 mock jurors. The mock jurors may hear and see brief segments of witness testimony, including experts, along with opening and closing statements. After case presentation the entire panel is broken into smaller groups for discussion and deliberation.
Tangible Work Product – Attorneys observe the group to capture the mock jurors’ discussion but will generally also have it video-recorded and/or transcribed. Like smaller groups the participants are often asked to answer brief questions in writing about their thoughts, feelings, comparative fault, and damages. Video clips of jurors can be prepared and are useful for mediation and/or settlement negotiations.
Time Required – Typically several days of prep to finalize presentations and any alternative case strategies to be tested during the mock trial.
Pre-trial Focus Groups (last 6 weeks before trial).
During the last 6 weeks before trial there is no better trial preparation than doing voir dire and opening statement focus groups. Pre-trial groups are scheduled for 2X per day with your voir dire and opening statement in the morning, and a 2nd group hearing the voir dire and opening in the afternoon. Time permitting, the groups will spend meaningful time in discussion and deliberation. Doing multiple sets may be helpful. In jurisdictions without voir dire, the voir dire segment can be used to test/re-test selected case issues, i.e. exhibits, expert testimony, etc.
Tangible Work Product – If there any holes in the case or presentation, they will be apparent to the trial team during this final process. Attorneys have repeated opportunities to rehearse and speak to the jury as well as observe the groups’ discussions and impressions.
Time Required – 1-3 days during the 6 weeks before trial, plus any preparation time.
During a trial it can be invaluable to get feedback from non-lawyer community members who do not know the parties. Discovering how a witness did during their testimony, whether observers understood an expert, what may be missing for the observers, and the strength of their feelings is invaluable information for the trial team.
Tangible Work Product – the trial observers are debriefed daily, and their feedback and observations are shared with the trial team. When a written instrument is used, it is often designed to capture the strength of the observers feelings about the evidence, witnesses, exhibits and lawyers they have seen in the case.
Time Required – Daily review of observers’ questions and discussions.
I am one of the top trainers of deposition skills in the United States. I speak often on deposition and trial strategy. Some of those speaking engagements are a kind of training, but most people need more. An experiential approach where lawyers go through the process is the best way to make sure the skill is learned.
Tangible Work Product – Before training begins, trainees will be provided customized “how to” information on preparation and conducting depositions, preceded by zoom calls to meet participants and evaluate their needs.
Time Required – 1-3 days depending on content and group size.
 In the corporate world less than 2% of market research dollars are spent doing focus groups, https://www.statista.com/statistics/492156/market-research-revnue-survey-m