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Source - media page of:
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Isn't trial and
jury consulting just a form of "spin doctoring" and manipulation that is
distorting the administration of justice?
This is a common perception of jury
consulting. The question assumes that there is a prior "truth" out
there, which trial consultants distort or manipulate. However, a
case makes it to trial is because the "truth" is neither clear nor
obvious.
A trial is essentially a "truth contest" where each side presents its
version of events. It is the jury's job to decide what the true facts
might be. Until the jury has ruled, there is no "truth."
Typically, in the cases we work on, the stakes are very high. People's
lives, businesses, working capital, and perhaps reputations or even
lives are at stake. Reasonably, each side wants to present a case that
the jury can understand and to which they can relate. Each side wants to
have a seated group of jurors who can be fair to their case rather than
starting off with such strong biases that they have already decided what
the "truth" of the matter is before even hearing the evidence.
We use social science insights and research to help trial lawyers craft
more effective and persuasive case presentations and eliminate jurors
who are biased and unable to listen to their case. We help lawyers
refocus away from the legal issues onto the human issues that are
relevant to a jury.
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There is nothing manipulative about this.
We don't decide who appears in the jury lists. In most jurisdictions, this
is determined by a random process. We also have limited power to select a
jury. Like all other aspects of trial, jury selection is an adversarial
process, with each side getting a like number of "strikes," that is,
opportunities to excuse a juror from service without explanation. The
process is more aptly named "jury de-selection." Each side has limited
information on which to judge a juror's fitness for service. We certainly
believe that the services of a good trial consultant can give our side the
edge. However, there are no guarantees and there are many, many factors that
determine the progress and outcome of a trial. Trials are a risky business,
which is why each side does everything it can to decrease the risk and
increase their strategic advantage.
Experienced trial lawyers know that those who are best prepared for trial
are those best prepared to win. Justice is not distorted by the fact that
some people prepare better than others. Justice is distorted when people do
not have equal access to legal and consulting advice. The lack of equal
access is a problem endemic to our legal and social system and has nothing
to do with the application of social science techniques to litigation
preparation.
People who are concerned about equal access to legal and consulting advice
should support funding of public legal services, actively encourage legal
professionals of all kinds to offer pro bono services to those in need, and
work to counter trends of restricting public access to law libraries and
legal information. Trial Behavior consultants do pro bono work and many are
involved in activities to help improve fairness and access to justice in
their communities.
Q: Can you predict how a
juror will vote by watching their body language?
A: The short answer: No.
The more subtle answer: A good social scientist observes all aspects of
people's self-presentation in public to try to understand them. You can
deduce aspects of some people's personalities by watching their body
language. Understanding people's personalities can be helpful in making
judgments about possible predispositions and their fitness to hear your
case. However, it does not enable you to predict something as complex and
context-dependent as a person's verdict in a trial. In fact, no one can
scientifically predict a specific juror's vote.
Furthermore, there is no "universal" body language. The way people use their
bodies is shaped by social and cultural factors as well as by personality
and individual genetics. In the U.S., with our diverse population, many
people sit on juries who were raised elsewhere or were raised in the U.S.
under a set of cultural practices with respect to the body that differ from
the mainstream.
It is also very easy to manipulate and fool others who rely too heavily on
body language. At mock trials, many attorneys get a shocking re-education
when they see that the smiling lady in the first row, the one who they were
convinced was with them all the way, rip their client apart in jury
deliberations and lead the charge for a verdict against their client.
Finally, jury decisions are made in groups and group dynamics have a strong
effect on shaping many jurors' verdicts.
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