Cut the Bull: What Can Trial Consultants Really Do?

With the new TV series “Bull,” airing Tuesdays on CBS, the field of trial consulting is getting a little more attention than it’s used to.  The show, starring Michael Weatherly (formerly of NCIS) as Dr. Jason Bull, is loosely based on the early career of Dr. Phil McGraw, who began his work at a Texas-based consulting firm.  The pilot episode included all the dramatics and bells and whistles that one would expect from prime-time television, leaving some to contemplate its accuracy.  While the show accurately depicts some aspects of trial consulting, it takes poetic license in a number of areas.  Below, we examine the representations made in the pilot episode to cull fact from fiction.

Trial Consultants Rely on Expensive and Exclusive Technology 

bull-cbs-trial-consultant-real

via hollywoodreporter.com

In the pilot episode, Dr. Bull shows his client an ultra-high-tech juror monitoring system, complete with over a dozen flat screens and devices that monitor mock jurors’ physiological reactions through palm-reading devices.  He claims to have a system, exclusively used by Homeland Security, to collect a wealth of information about jurors and their family members that could not be obtained elsewhere.

Is this accurate or Bull?  Bull 

While it is true that trial consultants use technology for enhancing the presentation of evidence and collecting information about prospective jurors, the equipment and databases used are in line with current technology trends.  Many of the methods employed by Dr. Bull and his staff in the show either don’t exist or would be too cost-prohibitive to be practical.  Further, the information trial consultants gather about potential jurors – while thorough – is information that is publicly available on social media, public records databases, or internet search engines.  Trial consultants should never take unethical measures that would invade the privacy of jurors.

Trial Consultants Know How Jurors Will Vote Before They Do 

In the show, Dr. Bull claims to be able to know how every juror will vote (and what they’re thinking throughout the trial) by analyzing their backgrounds and nonverbal cues.  At one point, he claims that 93% of all communication is nonverbal, and he has the training and special ability to read these behaviors accurately.

Is this accurate or Bull? Partly Accurate, Mostly Bull 

While consultants use information collected through internet research, juror questionnaires, and voir dire to try to predict how each juror is likely to lean in the case, no consultant claims to be able to predict with 100% accuracy how each juror will vote in deliberations.  Instead, consultants use juror profiles developed from statistical analyses involving mock jurors in the same or similar cases, along with their experience observing the demographics, experiences, and attitudes that correlate with individual verdict outcome to make educated guesses – with varying degrees of confidence – about how jurors are likely to vote in the case.  Ultimately, the goal is not to manipulate the jury, as the show suggests, but to remove jurors from the panel who are the most likely to reject your client’s themes and arguments.  This strategy will increase the odds of obtaining a jury that is receptive to your case narrative because the themes and arguments resonate with their experiences and pre-existing beliefs.

In truth, very few consultants base their evaluations of jurors solely on nonverbal behavior.  Juror decision making is a complex process, and consultants rely on multiple strategies to understand juror perceptions.  While there is a school of thought among consultants known as Neurolinguistic Processing (NLP), which relies on facial expressions and body movements to determine jurors’ attitudes, consultants trained and skilled in this method also take into account the content of juror responses to understand and interpret these nonverbal cues (much like what Dr. Bull claims to do).  However, Dr. Bull’s claim that 93% of communication is nonverbal is exaggerated, and researchers can’t agree on a quantifiable percentage of communication that is non-verbal, particularly because this number is likely to vary by person.

Therefore, facial expressions and nonverbal behaviors alone are not as illuminating as one might think, particularly in a courtroom where jurors are attempting to remain stoic.  For example, jurors who look upset with arms folded during a portion of the trial might just be more comfortable sitting that way, rather than indicating they have made up their mind or are hostile to the arguments.  Jurors who nod frequently may do so to show that they are following along and understanding the content of an argument, but not necessarily agreeing with it.  While it’s important to pay attention to juror non-verbals, greater attention should be paid to how behaviors change according to the type of evidence being presented and the side presenting it, rather than trying to interpret the behaviors themselves.  Even then, these non-verbal tea leaves are largely just that, and are unreliable as the sole predictor of juror decision making.

Trial Consultants Consider Jurors’ Leadership Qualities and Adjust Arguments to Appeal to These Jurors 

Dr. Bull identifies a juror, Bess Johnson, who he believes will be a key influence in deliberations, and he suggests that his client capitalize on Bess’ strained relationship with her son by exposing the defendant’s strained relationship with his father, hoping to gain the sympathies of this juror.

Is this accurate or Bull?  Mostly Accurate, Partly Bull 

Consultants absolutely consider jury dynamics when assisting with jury selection strategy, and identifying the likely leaders of a jury are a key component of that process.  For instance, a consultant may decide against using a strike on a juror who appears hostile to her client’s case if that juror is inarticulate, shy, and unlikely to be able to convince others on the panel, instead choosing to exercise the strike on a juror who is unpredictable but a likely leader given her confidence and authority when speaking during voir dire and her likeability among fellow jurors.  Likewise, in criminal trials or civil trials requiring a unanimous verdict, a defendant facing a difficult case may want to identify – often through social media – the jurors who are vocal, opinionated, and receptive to defense themes, because these jurors are likely to be stubborn in their positions and can hang the jury.

As Dr. Bull suggests, once the jury is seated, it is important to consider the backgrounds, experiences, and attitudes of the jurors when presenting the evidence, and it may be necessary to adjust arguments and presentation styles to appeal to the members of the seated jury.  While Dr. Bull tries to do this by developing testimony that will appeal to Juror Bess’ personal experiences, it often isn’t this direct or as manipulative as the show portrays.  In actuality, this plays out in subtler ways.  For example, a jury panel consisting of vocal millennials may be better engaged by elaborate graphics and animations than by simple charts or oral testimony, and a highly educated jury with degrees in the sciences may be more receptive to a defense that is heavily based in scientific research than a jury of lower educated individuals or those with backgrounds in the liberal arts.  Ultimately, it’s not about changing your case or conjuring evidence to appeal to certain jury members, but emphasizing certain arguments or themes that are most likely to appeal to those jurors sitting in judgement.

Trial Consultants Can Predict the Outcome of Cases with Mock Trials and Mirror Juries 

Dr. Bull’s assistant tells the clients that the company runs mirror juries that can be “scary” in their ability to accurately predict the outcome of a trial.  The show implies that mock trials and mirror jurors aim to predict exactly how a case will turn out – from the verdict to the amount of damages awarded to the plaintiff.

Is this accurate or Bull? Bull 

trial-consultants-bull-cbs-jury

via cbs.com

While mock trials and mirror juries (also known as shadow or feedback juries) have some predictive value, no trial outcome can be accurately predicted using jury research because it is impossible to anticipate the exact arguments, evidence, demonstratives, judicial rulings, attorney styles, and jurors that will be present at trial.  Instead, mock trials and mirror jurors help attorneys determine how jurors might react to their case facts and the framing of certain arguments.  More importantly, they help identify areas of vulnerabilities and strengths in the case, as well as areas of confusion or ambiguity that may be subject to interpretation based on a juror’s background or experiences.  Mock juries are one of the best tools to help attorneys prepare for trial, as they provide a layperson’s perspective that can assist attorneys to learn how to convey their case facts to better connect with the sensibilities of the jurors, and they can be used to develop themes that are likely to resonate with a certain population of potential jurors.  It is important to understand that people cannot be reduced to a perfect formula, but many of them can be understood, reached out to, communicated with and persuaded – and jury research is a way to learn how best to do that with a given audience.

Trial Consultants Are Experts in Human Psychology

In the show, Dr. Bull is an expert in human psychology, social dynamics, and communication, and he helps attorneys and witnesses deliver an effective case narrative.

Is this accurate or Bull? Accurate 

The majority of consultants are highly educated and experienced experts who have a keen understanding of how people and groups make decisions.  Although psychology is certainly a common background for consultants, we come from all different disciplines.  Consultants may be Clinical Psychologists, or they may have advanced degrees in Social Psychology or other branches of psychology.  Trial consultants may also be experts in Communication, Linguistics, Sociology, and even Theatre.  This latter group are often particularly suited for assisting with witness preparation, helping witnesses clearly and effectively communicate their messages to the jury.  While not a prerequisite, many consultants have degrees in Law or may have formerly practiced as attorneys, which helps them understand the legal barriers that restrain the types of evidence or techniques that may be used to persuade the jury.  All in all, consultants complement the attorney’s legal expertise and experience.  We work hand-in-hand to learn the best ways to communicate the case to increase the likelihood that our side’s message will be assimilated by most of the jurors.  Consultants don’t manipulate or read minds; we help attorneys better understand their audience and how best to talk to them.

Trial Consultants Dislike Attorneys 

Several times during the show, Dr. Bull tells his assistant, “I hate attorneys” and claims that attorneys are the enemy.  He not only dislikes them, but he also distrusts them (to the point he even steals an attorney’s watch to put a tracking device on it).

Is this accurate or Bull? Complete Bull 

Consultants work alongside attorneys every day, and while we can’t speak for everyone, we enjoy not only the work we do, but the people we work with.  If that weren’t true, we wouldn’t be doing it.  Moreover, because consultant work falls within the attorney work-product privilege, it is important that consultants and attorneys are candid with one another and open in their communications about the goals and strategies that drive the litigation.  (Indeed, one thing the shows “gets right” is the need to have the attorney present during witness preparation sessions between the consultant and the witness.)  Ultimately, the most effective consultants are those who are members of the trial team, and working together on the same page is essential.

Is Trial Consulting Ethical? 

Some viewers have criticized the show’s lead character as making a mockery of our judicial system by manipulating the trial outcome regardless of his client’s guilt or innocence.  While the show portrays Dr. Bull as willing to do whatever it takes to secure a win, consultants who are members of the American Society of Trial Consultants must abide by ethical principles and guidelines (and we impose even higher standards within our firm in many instances), and as agents of our clients in some instances – such as when contacting jurors for post-trial interviews – we are also bound by the professional codes and standards of the legal progression.  Just like our legal counterparts, we defend or advocate for our clients, but always within the confines of the law.  So, like any television legal drama designed mainly to entertain, the portrayal of trial consulting in the show should be taken with a grain of salt, because a lot of it is simply Bull.

 

alyssa-tedder-king_web_v2christina-marinakis By:  Alyssa Tedder-King, M.S. – Consultant and Christina Marinakis, J.D., Psy.D. – Director – Jury Research


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