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Research in education, communications, psychology, anthropology and cognitive science has given scientific basis to what good storytellers and trial lawyers already know: Themes are critical for helping an audience organize the information they receive and make decisions based on that information.

To persuade a jury, an attorney must develop case themes that organize the diverse case facts and convey the case theory. Developing persuasive and powerful arguments can be aided by trial consultants who understand ideas already circulating in that community and in the general culture that relate to the trial issues. Mock trials and, in some cases, community surveys, provide a platform to evaluate and determine the strength and effectiveness of various strategies and themes.

All of the consultants at Trial Behavior have extensive social science training and many are experts in areas that can be helpful in analyzing case facts, parties, and witnesses and preparing expert testimony for trial. A number of our consultants have considerable experience as testifying experts.

We have the benefit of deep case experience and many years of empirical research in all types of litigation. We are involved in dozens of trials and cases every year and have observed, interviewed, and collected attitudinal data on thousands of jurors. Our consultants develop strategies and questions for depositions, formulate a negotiation posture, and evaluate your settlement options. To assist you during trial, we can also provide memoranda and position papers on strategies and tactics.

While many attorneys have a good intuitive grasp of how to develop effective arguments, we bring to bear extensive research traditions that can help support, productively challenge, and empirically test and refine the trial team’s themes.

We have spent many years refining jury research that is maximally useful for our clients. We recognize that mock trials and focus groups are a big investment. Our commitment is to ensure that you get valid research that translates well to trial and provides the insights you need to prepare to win.

Mock Trials

A mock trial is a structured, argumentative case presentation in which attorneys present both sides of the case. This exercise usually takes at least one day, and is ideal for testing:

• trial strategy, themes, and arguments
• reactions of jurors to expert and lay witnesses
• jurors’ comprehension of demonstrative evidence
• juror reactions to attorney presentation and demeanor

Mock trials are also useful for uncovering the juror attitudes and experiences that influence jurors’ verdict decisions. With a large enough sample, they can be used to develop a jury selection “strike” profile.

We recruit participants to match the local jury pool of your venue. Mock jurors are screened based on stringent demographic and experiential criteria, which can include criteria specific to your case. We screen out people who appear to be “professional” focus group participants.

In consultation with you and your trial team, we develop questionnaires and other mock trial materials designed to uncover key issues for jury selection and solicit juror reaction to most persuasive themes and arguments. We also brief ourselves on your case and provide you with insights based on our experience and research in similar cases.

After the mock trial, we perform both quantitative and qualitative data analysis and provide you with an oral presentation, summary report, or complete written report (depending on which best meets your needs).

Even if you are moving towards settlement, a mock trial can give you the leverage you need in negotiations. Having assessed the impact of damage arguments against a representative group, you can approach negotiations or case presentation with empirically sound information as well as your sharpest legal arguments.

Focus Groups

A focus group is an exploratory, creative conversation with a panel of surrogate jurors guided by our consultants. We prepare a script and questions in consultation with the trial team. The exercise can be conducted in a half-day or full-day session.

Focus groups are often structured in modular fashion, providing more feedback and earlier feedback than a traditional mock trial. This can be helpful in complex cases, so jurors can digest information in smaller increments and be allowed to discuss the presentations immediately after hearing them, rather than just once at the end as in a mock trial.

Rather than deliberating freely, the discussions are led by our consultants, and sometimes a member of the trial team as well. This allow us to explore each issue in a more exhaustive fashion.

Focus groups can be useful early in the discovery process to:

• Learn what native experiences, concerns, and ideas jurors bring to the case
• What level of education will jurors need on the subject matter
• Identify what trial themes will be most persuasive, and what types of fact witnesses will be needed
• Understand initial impressions, discover metaphors and analogies
• Ascertain reactions to arguments and bad facts, and what issues are relevant or irrelevant

Our team spends more time in court than most other firms, and has collectively picked over 1500 juries. We have been innovators of jury selection strategies and tactics since the 1980’s, and we continue to utilize new tools and techniques for identifying and eliminating the most problematic jurors. Our capabilities include:

Voir Dire Development

Before trial, we help by drafting voir dire questions phrased to elicit attitudes and experiences that will identify priority strikes. We can also provide feedback on your own proposed voir dire questions, advise you on how to develop effective follow-up questions, and provide suggestions for achieving successful cause challenges.

Jury Selection

We can be there with you in court to help analyze jurors’ responses, provide follow-up voir dire, make recommendations for cause challenges, and prioritize preemptory strikes. After the jury is empaneled, we will prepare an assessment of the jury as a whole and a summary of each juror’s demographics and case-related experiences. Suggestions about case presentations and witness preparation tailored to the seated jury will also be provided.

Juror Questionnaires

When permissible, juror questionnaires can be advantageous in collecting more honest and insightful information on juror attitudes and experiences. A well-crafted questionnaire not only would prove to be a strategic advantage, but also prevent the whole panel from being contaminated by the answers of a few. We can design the questionnaire and assist in preparing arguments for the court’s adoption of the questionnaire. We then evaluate the completed forms, rank the jurors, suggest follow up voir dire and make suggestions for peremptory and cause challenges.

Social Media Research & Background Checks

Potential jurors’ online presence can provide a much different picture than how they present in court. We conduct online research of prospective jurors to assist in making more informed decisions. Typically, this includes a review of available social media and running background checks. If we are also assisting in court, information collected will be included in juror tracking materials and the jury profile prepared for you on the seated jury.

The trial team typically receives a summary of the interviews which highlights strengths, weaknesses and areas of confusion, and includes a set of recommendations. This type of ongoing feedback enables the trial team to strengthen weak areas and clarify areas of misunderstanding. When conducting shadow jury research, we hold a focus group where we interview prospective shadow jurors in order to ensure that they are capable of providing quality feedback. From the focus group we select 3 to 6 shadow jurors, ideally after the jury has been empanelled but before openings, in order to ensure that the shadow jurors match the real jurors well. Our experience interviewing shadow jurors over the course of real trials also contributes greatly to our general understanding of juror reactions to case themes and argument.

We have experience conducting shadow jury research on a variety of different case types, including catastrophic injury, antitrust, intellectual property, product liability, and insurance coverage. Trials involving shadow juries typically last several weeks to several months. The feedback that the trial team receives from the shadow jury can be very helpful in making theme and strategy decisions, directing the examination of witnesses, illuminating areas of misunderstanding, and exposing weaknesses in the other side’s case. While shadow juries are generally better treated as sources of information and insight than verdict indicators, they can also be useful for informing settlement decisions.

Venue, Verdict & Judicial Research and Juror Profiling Studies

Our approach to trial monitoring is for a consultant to attend the trial and provide focused feedback to the trial team on opening statements and the examination of key witnesses. In addition, we can place shadow juries in the courtroom to observe trial proceedings and provide daily feedback to the trial team and to in-house counsel. At the conclusion of each court day, the observer jurors are interviewed in order to understand their interpretations of the case and their reaction to key themes and pieces of evidence as the trial progresses.

Witness testimony and demeanor are critical in most cases. A skilled and independent third party is often the best way to improve a witness’s performance and, if necessary, deliver a difficult message to them. We work with attorneys to develop a clear understanding of the role each witness will play in supporting your trial themes, and then prepare the witnesses for deposition and trial.

Using established methods, we teach witnesses specific techniques for overcoming nervousness, dealing with difficult questions, gaining a sense of control over trial cross-examination, and remaining calm and focused throughout.

The key to witness preparation is telling the truth and being comfortable with that truth. We help witnesses understand how the opponent may use the truth against them, and prepare effective communication strategies to ensure their message is clear and unambiguous.

We help witnesses build on deposition testimony, to ensure trial testimony is consistent with previous answers and prepare them to handle potential sources of impeachment. We arm them with safe harbors to handle tough questions. And, when appropriate, we use video to give the witness more visual feedback on their performance.

When working with foreign witnesses, we understand how different cultural norms or traditions can be perceived adversely by American jurors, and routinely work with clients and witnesses on how to best explain key events or business practices, and put them into context for jurors. We are also sensitive to the fact that the American jury system may be unfamiliar to foreign companies and witnesses, and work to educate them on proper courtroom demeanor, attire and alleviate any anxiety they may have about testifying or appearing in court.

Judges are people too and are influenced by the same types of psychological and social forces that affect jurors. Although judges may be better able to evaluate sophisticated legal arguments and evidence, they will also look at the human factors in the case and make assessments about witness credibility, human motivations, and common sense causation. So be prepared!

We can help you prepare your case for Alternative Dispute Resolution in a number of ways:

• Read and evaluate key case documents and give you advice on themes and how to address bad facts.
• Make recommendations about demonstrative exhibits to help educate the judge or mediator about your technical issues and draw his or her attention to the key events and facts of your case.
• Mock try your case, in front of jurors or a panel of jurists, to determine realistic damage ranges.
• Prepare your witnesses for testimony that sounds your themes effectively.
• Assist in selection of panel members.

In today’s legal world, where fewer cases go to trial, refreshing litigators’ skills with CLE Programs is more important than ever. Trial Behavior Consulting can help you keep your in-house training program up-to-date with our CLE presentations.

We have presented to major law firms, legal associations and bar associations nationwide. We can focus on a specific area of trial strategy and practice, such as juror attitudes and jury selection, current trends in trial strategy, witness preparation, or developing and delivering effective trial themes.

We can also present on all aspects of trial strategy for a substantive area of litigation. Typically our presentations include demonstratives and video clips of juror deliberations to emphasize relevant points.

Our CLE programs are a free service to attorneys. If you are interested in having us present to your firm or legal group, contact us and let us know the specific practice area and/or trial skills in which you are interested.

The vast majority of cases today are resolved long before they make it to a jury trial. Parties are often contractually obligated to work out their differences through arbitration or mediation.

How does the fact that you will be arguing the case in front of a judge/arbitrator/mediator, rather than a jury, change your approach?

• Is it less necessary to be clear and concise?
• Is it less necessary to be on-target and unambiguous?
• Is it less necessary to have strong themes and tell a good story?
• Is there less at stake?

The answer to all of these questions is, of course: No. A carefully-crafted presentation is important no matter who will be hearing the matter. And just as with jury trials, we can expertly design a mock bench trial study that can help you to refine your themes, highlight your strengths and defuse your weaknesses.

We start by recruiting a panel of retired judges with similar backgrounds to the judge in your case. The mock judges review briefs, listen to case presentations and, perhaps even, witnesses. Our lead consultant will then pose questions to the panel of judges, and, ultimately, moderate an interactive panel discussion between the judges and your trial team. It has been our experience that insights gained in exercises like this are every bit as valuable as those gained in a traditional jury mock trial.

Through our mock arbitration and bench studies, you can:

• Learn what influences a judge in your case
• Test your strategies, themes and legal arguments before a neutral third party
• Obtain feedback on your witnesses, and provide them with a “dress rehearsal”
• Gauge your audience’s understanding of the subject matter.
• Brainstorm with a panel of judges on the merits of your case, and how to improve upon it.
• This exercise can even be combined with a traditional mock jury trial to give you DUAL feedback on both the legal and factual issues in your case.

This innovative service is a great way to prepare for:

• Arbitrations
• Bench trials
• Class certification hearings
• Markman Hearings
• FINRA Arbitrations
• Appellate Hearings

Our consultants have been qualified as experts on research methodology and transfer of venue. We have prepared numerous reports and affidavits for transfer of venue motions in State and Federal courts throughout the country and testified at many hearings.

We have conducted venue surveys ranging in size from 400 to 2,500 people in order to assess whether there was significant bias in certain venues. In other cases we have evaluated the results and implications of surveys conducted by other researchers. We have also offered testimony on juror attitudes, juror bias, juror decision making, and jury selection.

Some of the cases we have worked on include:

• In the Matter of Endoscopy Center and Associated Business and Coordinated Cases, District Court Clark County Nevada.
• Charles Lucas v. American Optical Corporation, et al., Letcher Circuit Court, Kentucky
• State of Ohio v. John Parsons, Ross County Court of Common Pleas, Ohio.
• Rodriguez v. Carabin and Shaw, P.C., Bexar County District Court, Texas
• Stephen A. Bartek, et al. v. State of Alaska, Department of Natural Resources, Division of Forestry, Case No. 3PA-98-0247 Civ., Superior Court of the State of Alaska, Third Judicial District at Anchorage
• Hartford County v. Shell Oil Company, et al., Circuit Court for Hartford County, Civ. No 23619-737, Maryland
• Gene Thayer, Pete Hamper, Ron Iverson & Timberline Heights, Inc. v. City Commission of Helena and the City of Helena, District Court, Lewis and Clark County, Montana