The jury system has gained wide recognition as the best possible way to achieve justice in an imperfect world. But no one is blind to the system’s flaws, not the least of which is that people bring their own biases to bear on how they rule on cases. That’s where jury consultants, collecting fees that average $250 per hour, come in. A legal team might spend anywhere from $10K to as much as a quarter of million dollars simply paying their jury consultant.
So for all that money, what do jury consultants do?
We’d all like to think that only a rigid evaluation of the evidence is what decides guilt or innocence in a criminal trial. But even the best-intentioned of people have their own biases and blind spots, and a legal strategy that fails to understand the nuances of its jury pool will likely fail when it comes time to read the verdict.
One of jury consulting’s most important roles comes before the trial even begins.
Jury selection
The consultant must go to work as soon as the pool of potential jurors is announced. The lawyers for both the prosecution and the defense get considerable leeway in putting together what will be the ultimate team of 12 people that will hear the evidence and issue a verdict. This is the chance for each side to shape the jury to its liking.
A jury consultant must do extensive work at researching the backgrounds of each prospective juror. For example, profiles are created. It’s typical for analytical data to be gathered and reports to be issued to the attorneys; however, a really good consultant must go deeper than that.
If there is a sexual assault case, for example, it would be a serious mistake to think that the prosecution would want to stack the jury with women. That might end up being the best approach, but what if one of the women is married to someone who was once falsely accused? On the flip side, a man with 3 daughters might be more likely to respond with the type of emotion the prosecution wants. The defense must be aware of the same dynamics.
Each lawyer gets to ask questions of the potential jurors. A good consultant will draft questions that elicit the kind of reaction that lead counsel needs, without antagonizing someone who may eventually be seated on the jury.
Maybe that desired reaction is simply about acquiring information or maybe it’s about reading the emotional reaction of people to certain questions. A lawyer can “strike” a certain number of potential jurors from consideration. The consultant’s job is to make sure they use those strikes with precision.
Pre-trial prep
Once the pool of 12 is selected, the legal team goes to work preparing for the trial. The consultant is an important part of this work. Witnesses, who are most likely very new at taking the stand and likely quite nervous, have to be prepared. Now that the consultant knows the jury, they presumably know how to prep the witnesses.
Let’s say an expert witness is taking the stand to present crucial scientific evidence. Should they “dumb it down” and avoid talking over the head of the jury? Or would that come across as condescending and hurt the case? Should they speak in excruciating detail and risk boring the jury to tears—or worse, come across as a know-it-all? Every person reacts to these situations differently and the consultant is being paid to understand how best to approach this particular jury.
Visual presentations are also a key part of many cases. What one person finds compelling and easy to understand will be different from how another person sees it. Is a presentation overly superficial or a solid, concise presentation of the key facts? Each person will answer that question differently and it’s the jury consultant’s job to know what will work best with this specific group of 12 people.
During the trial
While the most important work is done before opening arguments, the jury consultant still needs to be along for the ride during the trial itself. Their job is to watch the jury carefully and see how they are reacting to the evidence.
Do facial expressions indicate that a certain legal strategy is rubbing someone the wrong way? Maybe it’s time to shift gears. Did a witness for the other side come across as a clearly sympathetic figure? The consultant might advise their own lead counsel to tread lightly on cross-examination, lest the jury be antagonized.
As you can see, jury consulting requires a wide-ranging skillset. Knowledge of the law is important, but there are paralegals and other staff that can handle the nuts and bolts of the legal case.
The jury consultant must have a knowledge of psychology and marketing. They must know the intricacies of language and how even a changed word can impact how a presentation is perceived. In a legal world where normal human beings make life-and-death decisions, it’s imperative to understand how those human beings operate.