The use of jury consultants who use empirical analysis to find out how a firm’s case will play in front of a jury before a trial ever begins has become standard practice — especially in high-stakes litigation.
By Dylan Jackson | February 20, 2019 at 06:09 PM
Some have called it pure guesswork. Others have described it as a combination of psychology and the dark arts.
But Marjorie Sommer, co-founder of the Florida trial consulting firm Focus Litigation, believes lawyers have too many preconceptions about jury selection. She and her partner Geri Satin say the process need not be a mystery.
“It’s a numbers game,” Satin said.
Through qualitative and quantitative analysis (Satin has a doctorate degree in legal psychology from Florida International University) and with the help of a thousand focus groups, mock trials, and real-world verdicts, Sommer and Satin counsel law firms, companies and even government agencies about what type of jury could help their case.
Over the past two decades, the use of trial consultants has become ubiquitous in high-profile cases. In 1983, the American Society of Trial Consultants had less than 20 members. Today, the organization boasts nearly 300. While in its infancy, the industry was viewed with much skepticism. But as the digital era has matured, data analytics has grown more sophisticated, transforming jury consulting into a legal industry that is accepted and even embraced.
Much of their job, Satin said, is to demystify the jury selection process and use their combined 30 years of legal experience to provide actionable recommendations based on their findings…
“Here we are, all lawyers, and we’re trained on the legal issues. We’re not really trained on the social science part of it,” said Bruce Katzen, founding partner of Miami-based boutique litigation firm Kluger, Kaplan, Silverman, Katzen & Levine. “It’s good to hear how ‘real people’ react.”
After both sides argue their case, the mock jury deliberations are recorded for analysis and a verdict is rendered. Satin and Sommer then compile a report that can run hundreds of pages, stuffed with recommendations, quantitative analysis that uses a juror’s responses to specific questions to correlate a verdict. Advice to clients could include formulating precise questions for voir dire, pointing out what juries perceived as weaknesses in a case, and highlighting the most effective visual aids.
But their job isn’t only about jury selection. Satin and Sommer say some of their biggest “wins” come before jury selection even begins. If an insurance company has $500 million in exposure, and the focus groups and mock juries are returning consistent findings against their client, they will advise the client to work on a settlement instead of recommending a trial. If the company settles for $50 million instead of losing big in the courtroom, Satin and Sommer see that as a victory.
“One of the most reliable things we give is a reality check,” Sommer said.