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Services
Here at Edward P. Schwartz Consulting, we specialize in the nexus between trial strategy and jury decision-making. Our goal is to help you, the lawyer, identify the best set of strategies for trying your case to a jury.
We provide a suite of services to assist you in your short- and long-term litigation goals.
Case Evaluation:
Many cases can benefit from a basic initial consultation, during which we identify the most important jury-related issues and recommend strategies for managing them. If there has ever been a study relevant to your case, we will find it and help you apply it to your case. We also offer general consulting and advice on trial strategy for jury trials. If you find yourself unsure about how a jury will react to your case presentation, we will be happy to offer the benefit of our experience and expertise in choosing an ideal trial strategy. Put our knowledge to work for your client.
Our Exclusive Jury Memo
The fastest and most economical way to begin putting our knowledge to work is
to commission a jury memo. This memo will identify effective presentation strategies
in light of the particulars of the case and where juror comprehension can go
awry if things are not handled just right. We recommend strategies for everything
from voir dire to exhibit preparation to the wording of specific jury instructions.
The attorney can then decide how best to implement these recommendations or if
further study of any of these issues is warranted. Many lawyers believe that
jury consulting is prohibitively expensive for modest cases. While it is true
that a full-blown mock jury can cost tens of thousands of dollars, the strategic
advantage of a jury consultant need not be reserved for those who wish to run
elaborate trial simulations. In a jury memo, we can offer useful, practical advice
for a small fraction of that amount.
Jury study design and implementation:
Our specialty is designing the right study for your case. If the existing jury behavior studies are not directly on-point for your case, we will design a study to give you the answers you need. Don't run a full-blown mock trial when a simple public opinion survey is all you need. Have you considered all the advantages and disadvantages of a focus group versus a mock trial? We have! We design our studies to give you maximum return on your jury study investment.
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Surveys:
A well-designed survey can generate a lot of information about how the public will perceive the issues in your case. For more in-depth analysis, exit interviews can be combined with a written survey to learn more about issue comprehension and decision-making motivation. When done right, a survey can be a very powerful and cost-effective tool.
Mock Trials and Focus Groups:
Mock trials are very expensive. We work with our clients to make sure that all other tools have been used to maximal effect before running a full mock trial. A mock trial is most useful as a dry run -- a dress rehearsal -- to confirm that the case will proceed as anticipated. A mock trial is rarely cost-effective as a diagnostic tool.
A focus group is more targeted to a particular strategic issue. The experimental design challenge is to condense a case for presentation over a few hours, while preserving the core deliberative issues and reserving the bulk of presentation time for the particular issue to be tested. A well-designed focus group is not a "Readers' Digest" version of a mock trial. Rather, it should quickly get the panel deliberating about the issues that are important to your litigation strategy. Our philosophy is that a focus group is most effective in helping counsel choose among competing trial strategies. As such, we design our focus group studies with multiple treatments, before multiple panels. We often recommend using videotaped presentations, so that they can be tweaked easily and re-run at a later date, with little additional cost. This allows for iterative decision-making about trial strategy.
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Witness Preparation
Often, the difference between winning and losing at trial is whether the jury is willing to listen, really listen to your key witnesses. Several things can get in the way of your witness effectively telling her story. Some witnesses are shy; while, others are defensive or belligerent. A witness who speaks English haltingly, or with an accent, may be difficult for jurors to understand. Some experts have difficulty presenting technical material at a level that can be understood by lay people. An expert who comes across as strident or condescending will not be received well by the jury. Witnesses can be scared, annoyed, depressed or angry about having to testify at trial. Rare is the witness who cannot benefit from some pre-testimony preparation.
We won’t tell your witness what to say. We won’t pick out his tie. We won’t coach him on how to wink at the pretty jurors. What we will do is help him know what to expect at trial. We offer advice about how to stay in control during tough questioning, how to choose words that won’t be misconstrued, and how to present his testimony in a positive light.
We help expert witnesses refine their teaching styles for the unique set of students that comprise a jury. We can assist with exhibit preparation, with an eye towards these exhibits as teaching aides. We help your experts learn how best to teach from their exhibits.
Witness preparation is usually conducted as a practice direct examination, followed by a practice cross-examination. We stop periodically for me to offer comments and advice. This exercise also helps to build trust between the lawyer and the witness. These sessions are usually recorded on video, which allows me to review recent testimony with the witness. If the witness is having difficulty internalizing my recommendations, or if we are uncertain about how certain statements will be received by a jury, the video can be presented to a focus group for evaluation. We can then run another session with the witness after the focus group responses have been analyzed. This iterative approach is particularly helpful for complicated or contentious testimony.
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Jury Selection
I always remind my clients that what the jurors see is more important than who the jurors are. That said, you don’t want people on your jury who will interfere with your ability to present a compelling case. The best jury selection strategy is a comprehensive one that starts weeks before any jurors step into the courtroom.
Supplemental Juror Questionnaires
Having identified compelling themes and hot-button issues from your pre-trial research, you would do well to consider using a supplemental juror questionnaire (SJQ). The standard juror questionnaire in most jurisdictions is quite cursory, providing little more than each juror’s name, age, sex and occupation. In some jurisdictions, voir dire is quite limited, conducted by the judge in open court. Under such conditions, it is very difficult to get prospective jurors to volunteer honest information about sensitive subjects. Several studies have shown how jurors tend to be much more open and forthcoming when completing a written questionnaire than when responding to oral questions on the same topics.
Even where individual, attorney-conducted voir dire is permitted, an SJQ is a very valuable tool. Jurors are often hesitant to be completely forthcoming when being interrogated orally, even in private. In addition, a well-crafted SJQ provides terrific insight on which topics to pursue orally with which prospective jurors, enhancing overall voir dire efficiency.
Judges are increasingly receptive to the use of SJQs, because of their effectiveness at eliciting truthful responses and their ability to streamline voir dire. We can help you draft your motion for an SJQ, providing citations in support of your motion and sample questions. A lot of research has been conducted on the proper design of a written questionnaire and we can apply our expertise and experience to help you craft the most effective SJQ for your case. We will then help you analyze the responses and identify potential problem jurors with whom you should follow up at voir dire.
Voir Dire
There exists a lot of research trying to link juror demographic characteristics with verdict choice. With the exception of a small set of case types, the relationship is quite weak, with observable characteristics accounting for perhaps 5% of variation in verdict choice. That said, the connection between social and political attitudes and verdict choice is much stronger. A well-conducted voir dire can help uncover these juror attitudes.
As with SJQs, all questions are not created equal. We can help you craft a voir dire strategy that will reveal how jurors really feel about important topics that are relevant to your case, without triggering hostile or defensive responses. We recommend open-ended questions that encourage jurors to volunteer information about themselves in their own words. In addition to looking for potential juror bias, we try to anticipate which jurors are likely to be discussion leaders, due to subject-matter expertise or assertive personalities.
After all of the questioning is over, we can help you decide how best to exercise your peremptory challenges. Given my extensive background in game theory, I am particularly well-suited to help you devise a strategy for your strikes, in light of how we expect the other side to use theirs. We take care to integrate our jury selection strategies with the litigation strategies we have developed through pre-trial research.
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Post-verdict Juror Interviews
Once a trial is over and the jury has rendered its verdict, it is tempting to move on to other cases as quickly as possible. Especially if you try lots of similar cases, you should avail yourself of every opportunity to debrief jurors after trial. We can design a post-verdict questionnaire, help you with exit interview questions, or conduct post-verdict discussion for you.
We recommend that you view these interviews as an opportunity to build a database of jury verdicts and reactions. This requires a long-term perspective. Most questions should be standardized, data collection and storage should be automated whenever possible, and the answers should be annotated with comments and questions from the lawyers who tried the case. This is all designed to facilitate comparison across cases and retrieval of data for future cases. We can help you design a post verdict data collection, storage and analysis plan that will help you develop winning strategies for your future cases.
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Seminars:
Perhaps you just want to learn more about jury decision-making to help the lawyers at your firm better argue their cases. We offer one and two day seminars designed to introduce attorneys to the basic techniques used in mock jury studies and the results from those studies that can be leveraged by lawyers to improve trial performance. We always sit down with you in advance to learn about the types of cases your firm handles and then we tailor the seminar accordingly. Our goal is always to provide information that is useful for your firm's unique needs.
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