Articles

The Science behind Jury Consultants

Updated: November 26, 2003 4:10 PM

Hollywood has taken artistic license with the role of a jury consultant, but the movie Runaway Jury has drawn increased attention to a growing profession.

"All of the sudden, jury consultants are popping up on the talk television," said Scott Mitchell, president of Oklahoma City-based Scott Mitchell & Associates. "I would say that if you did a 'litigation communications' Google search, you'll see three times today what you saw two years ago. Lawyers - decorated, senior lawyers - now are starting to get more involved with consultants than they have in the past." Mitchell's firm counsels lawyers on how to win their case in the court of public opinion. As a member of the American Society of Trial Consultants, Mitchell's firm is part of the new framework wherein today's "high-profile, high-stakes litigation" is conducted, he said.

Mitchell noted that in the movie, the jury consultants - not the lawyers - are the central players. "The stuff that Gene Hackman does in that movie is more private investigator and Class A felonies," said Mitchell. Real jury consultants are "serious scientists," said Mitchell, who are able to apply a sophisticated level of research toward the aim of producing a favorable result in the courtroom. Skilled public relations, the careful choice of jury members, and the use of audio and visual presentation materials in the courtroom all have an immeasurable effect on the outcome of litigation, said Mitchell.

"There is now a burgeoning field dealing with communications strictly related to litigation," said Mitchell. "It is enormous, and it is from the recognition that you must engage if the other side is engaging. It's a growing industry, and there are thousand answers as to why." Gone are the days when some nameless lawyer with a microphone shoved in his face is naive enough to say, "No comment." In today's environment, a company or individual charged with a crime must have a defense strategy in place within 24 to 48 hours, or the case might be lost long before any witnesses are sworn in.

Mitchell's firm consults with lawyers to educate them as to what they can say to defend their client without running afoul of ethics. The firm conducts continuing education classes for the Oklahoma Bar Association on the subject.

Supreme Court Justice Anthony Kennedy wrote over a decade ago that an attorney's duties do not begin inside the courtroom door, noted Mitchell.

"Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation," wrote Kennedy, "including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried." "There's an old biblical saying - what profits a man if he gains the whole world but loses his soul?" said Mitchell. Likewise, what profits a company if their legal counsel wins the case in court but the company has been so vilified in the media that their stock plummets? "Look at Dow Corning," said Mitchell. "To this day, there is still not any scientific evidence that breast implants made by Dow Corning were bad - not any. In fact, the FDA is now putting them back on the market." On the other hand, even as Special Prosecutor Kenneth Starr was effectively proving that President Bill Clinton had an affair with a White House intern, the president's approval rating soared.

"Study after social study has been done to show that when it comes to corporate America, and certainly in these times ... if you're charged with malfeasance, a crime, wrongdoing, whatever, and you're a corporation, fully half of that jury pool out there thinks you're guilty," said Mitchell. "Bam. Case closed. Just the charge." If your corporate counsel tells the media, "No comment," that figure goes up to 75 percent, said Mitchell. "To be effective you've got to be ubiquitous," said Mitchell. It's not uncommon to see prominent lawyers trying high-profile cases to hold a press conference every day, he noted. Martha Stewart now tells her side of the story on a Web site, evidencing the most popular and effective way to sway public opinion available today.

Within the courtroom itself, science is altering the way juries are selected and the way evidence is presented to them. A well-planned presentation or a videotape has been known to make or break a case, or to induce a plea-bargain agreement. Since the Scopes "Monkey Trial" in 1925, which pitted the evolutionary theory against creationism and spurred a national debate on the subject, it's been clear that the many trials are really decided in the court of public opinion, said Mitchell. Today, lawyers are getting better at trying their cases both in and outside of the courtroom.

"The science is just there, particularly in the area of graphics, and the social sciences are advancing," said Mitchell. "Consultants are better than ever. Lawyers have more options in terms of how to try cases. Central to that is the American Society of Trial Consultants. It's an all-star roster of people that make lawyers better - on both sides."

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