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Insider Tip: Meeting your consulting needs
The Advantage: 12.06: V.3, 3rd edition
As 2006 comes to a close, we reflect on the various work our firm has provided throughout the year. Of particular note is the number of seminars (CLE presentations, seminars for national and regional law organizations, etc.) that our consultants have presented. One of the most frequently requested topics was “how to use a trial consultant,” or what we often call “Trial Consulting 101.” As part of this seminar, an overview is given of all the services that full-service trial consulting firms offer and the ways that attorneys and businesses can benefit by those services. Looking at the list, there are services that many are quite familiar with and use repeatedly. For example, case strategy where two or more consultants work with the trial team (and, possibly the clients), to produce a 10-point story, themes and an overarching case theory; and jury selection, which is often requested because it is the one of the areas that attorneys feel least comfortable with.
While these services are valuable and often indispensable, there are other, often-overlooked services that just might be exactly what your case needs. After taking an unscientific poll of those around the firm, the following list was generated of additional services that a trial consulting firm offers that might be the most valuable, but underutilized services available. A recent television promotion listed, “The best shows that you’re not watching”—consider this our list of “The best services that you aren’t using.”
First, the focus group. Craig New, Tsongas’ Director of Research says:
“It's so versatile. You can go big or small. You can test many issues or only one. I think it's underused when a case has only one or two aspects that really need testing. Examples? We had one employment case where a key piece of information was how jurors were going to interpret an ambiguous phone call. We ran four groups, about one hour each, and just played the phone call and had them talk about it. Another good example is for trademark cases. Do jurors think the trademarks look the same? Well, show it to people and ask them. Listen to them talk about the similarities and differences in their own words. We did one focus group to decide whether the plaintiff should file an infringement lawsuit on one trademark. Focus groups don't have to take long and don't have to be expensive. It doesn't even have to take that much work on the part of attorneys to put it together.”
Second, while most attorneys conduct some kind of witness preparation session either with or without a trial consultant, you might not be conducting a witness preparation session before deposition. According to Joyce Tsongas, “[Attorneys often] don't understand that an ounce of prevention is worth a pound of cure. When we do prep for trial, we see how badly witnesses were prepared for deposition. In the days of video depositions, that is even more true.” Instead of having to “clean-up” your witness for trial and work with them on impeachment issues, why not prevent the problem from happening in the first place?
Third, this was a banner year for us in trial monitoring, sometimes called “shadow juries.” Tom O’Toole, a consultant based out of our Seattle office, participated in two of our largest projects this year and here’s why he thinks trial monitoring just might be the “the best service that you aren’t using:”
“Trial monitoring provides immediate feedback at trial that is difficult to obtain on your own. It offers objective views of the case from individuals fresh on the scene. It allows attorneys to make adjustments on the fly. The best way to think about trial monitoring is to have attorneys reflect on their experiences with mock trials. How many times have we seen mock jurors focus in on, get confused by, or disregard information that we did not predict would be an issue? The universal finding of mock trials is that it is surprising what jurors tend to focus on. It is tough for us to see since we don't have a fresh perspective on the case. Trial monitoring provides a means for attorneys to access such critical information and adjust their case in such a way as to reorient jurors, clear up any confusion, and address any important issues the jurors want answers to. We have had more than one attorney comment that, after using trial monitors, he/she can't imagine going to trial without them again.”
Fourth, of course there are graphics. We’ve written numerous articles on the importance of graphics because, as most of you know, people are visual learners. But, have you ever thought about using graphics for mediation or arbitration? Ted Prosise, Senior Consultant and Director of Tsongas’ Seattle Office advises, “Although the primary focus of litigation graphics has been for trial, we are seeing more and more use of litigation graphics for arbitration. These demonstrative exhibits can be driven by key arguments and themes, offering the panels more than just information, but information with a central persuasive point. For example, in a recent securities litigation we chose to focus on a very aggressive strategy toward the plaintiff who was alleging he was an unsophisticated investor, but we produced several timelines based on his emails that displayed his heavy involvement in day-to-day decisions on his account, and the timelines presented in a visual manner the sheer volume of his involvement over several key months. The timeline included specific language and call outs evincing his sophistication (e.g. "since we will likely miss on the IPO, make sure to pick some up after the pull-back"), so the graphic included both the visual quantity and the verbal quality of his involvement. This helped make the central point more meaningful and memorable. It was used by the litigators as well as key witnesses throughout the arbitration.”
Finally, there is opening and closing preparation. Everyone knows the importance and everyone says they practice, but having a third party analyze and provide feedback can be invaluable. Jill Schmid, consultant in our Portland office, remarks, “Perhaps it’s the public speaking teacher in me, but everyone from novice to senior attorney can benefit from having an ‘outsider’ listen and critique his or her speech. Good feedback should not just focus on structure or the ‘theatrics’ associated with movement or vocal quality. Feedback should help with the construction of powerful and persuasive arguments and include a focus on language, finding just the right balance of emotive, yet memorable phrases and words that will arm your jurors to be your advocate.”
(For more information about CLE programs or having a consultant speak to your law firm, please contact Laura Dominic, Senior Consultant and Tsongas’ Director of Education, at 503.225.9321.)
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