ASTC members share their knowledge and experience
“I change people’s minds for a living. Especially the juries”
Dr. Jason Bull CBS-TV-BULL
Hollywood’s entertainment industry has long had a fascination with the legal system. From Perry Mason and Matlock to Law and Order, lawyer dramas have dominated the television airwaves. But now there is a new player on the small screen, a one-hour drama on the CBS Television Network created by former trial consultant turned TV personality, Dr. Phil McGraw. The title character, a charming rogue named Dr. Jason Bull, played by actor Michael Weatherly, is a Psychologist with degrees in 3 disciplines who leads a litigation consulting firm named Trial Analysis Corporation. TAC inhabits a high-tech New York City office and features a staff which includes new generation characters such as; a smart, driven young woman assistant; a young Hispanic former prosecutor who leads mock trials; an oddly named Millennial hacker; a tough, female former FBI investigator and a male Vogue stylist. Together they practice what is often called Trial Science, a multi-discipline study of behavioral sciences, linguistics, mass communications, training, and education techniques and more. The episodes have been introducing the audience to the characters and the work they do, building dramatic tension, sharing backstories and giving examples of topics which form the basis of many real-life studies which are conducted by real-life trial consultants.
But it is impossible to tell a complete story in 43 minutes, where acts and scenes are written with commercial breaks in mind. And sometimes entertainment considerations may take precedence and a certain dramatic license may shade a story arc. So when I see a “trial consultant” who instructs his staff to hack into a juror’s computer and plant a fake news story, I just have to say “what the…” and remember that I am watching a television drama. And if I am offended by this portrayal of a profession I embrace I just listen to the words of the show’s producer Dr. Phil, who, when interviewed about the show tells folks including real-life Trial Consultants, “It’s Hollywood. Get over it.”
THIS IS NOT AN ARTICLE ABOUT A TELEVISION SHOW.
This is more, an introduction to a respected profession which embraces a wide variety of practices and the national organization that promotes that profession. I would like to introduce you to the Very Wide World of Trial Consulting.
“We’ll know what a jury’s going to come back with. We’ll know because that’s what we do. That’s what trial science is.”
Dr. Jason Bull
Because an accurate explanation requires expert knowledge I thought it best to use the words of some of the nation’s top trial consultants, testifying as it were, about what they see as their profession and their roles in the justice system. They come from very diverse backgrounds from research science to the law, from applied work in psychology to marketing, advertising, and public opinion research. From professional communication applications, from drama, training and education to mass communications, behavioral science, linguistics and more. But there is one common thread which binds this group of professionals, the ASTC.
Founded in 1982 as the Association of Trial Behavior Consultants, the American Society of Trial Consultants is the only national body to create professional standards and practice guidelines for Trial Consultants; to bring together an extensive repository of reference materials, and provide training and continuing education, business development and networking opportunities for ASTC members and attorneys. The goals of the Society are presented in its Mission Statement:
The ASTC Mission. “Our legal system is based on the principle that each party putting forward the best case – making the most of facts, law and presentation skill – allows the truth to win out far more often than not. In that kind of a system, the goals of the ASTC lie at the very heart of the law’s ability to deliver justice. We help litigators become better at persuading jurors and other fact-finders, and that makes the system work in a way that is more meaningful, more reliable, and ultimately, more fair.”
ASTC has a membership from across the country (currently 45 states). Membership has grown from 19 in 1983 to a diverse group today that is over 400 strong. Members bring skills forged in a number of academic disciplines (including psychology, communication, theatre, sociology, law, and many others) to the tasks identified by the Society in 1982.
Member consultants provide some or all of the following services: case theory and presentation, community attitude surveys, continuing legal education seminars, deposition preparation, expert testimony, focus groups, graphics and demonstrative evidence, jury selection, language and the law, media relations, mediation and arbitration (ADR), mock jury trials, negotiations, opening statement and closing argument preparation and evaluation, post-trial juror interviews, presentation strategy, pro bono services, trial simulations, trial technology, voir dire strategy, change of venue studies and witness preparation.
The Society recognizes there are many avenues and aspects of trial consulting. As the ASTC has grown over the years, it has addressed a number of issues crucial to all professions, while continually improving the skills, visibility, and standing of the profession of litigation consulting. To that end, members have created the ASTC Code of Professional Standards.
The Code provides enforceable standards and offers guidance in many areas common to trial consultants working in this diverse field. The Code provides for: ETHICAL PRINCIPLES, PROFESSIONAL STANDARDS , and PRACTICE GUIDELINES.
Under ETHICAL PRINCIPLES is: COMPETENCE: Trial consultants strive to maintain high standards of competence in their work. They recognize the boundaries of their particular competencies and the limitations of their expertise. When in the role of trial consultant, the member does not practice law but seeks to enhance the practice of law by facilitating the skills of the legal practitioner. Trial consultants are dedicated to providing the legal community with information on litigation related behavior and communication. They provide only those services and use only those techniques for which they are qualified by education, training, or experience. They maintain knowledge of relevant professional information related to the services they render.”
Under the heading of GENERAL PROFESSIONAL STANDARDS are categories which include: Consultant-Client Relationship, Training and Provision of Services and Conflicts of Interest.
And for PRACTICE GUIDELINES the Society has created specific Standards and Guidelines in major fields of practice including Venue Survey, Witness Preparation, Small Group Research, Jury Selection, Post-Trial Juror Interviews and Online Research.
BUT REALLY, WHAT IS TRIAL CONSULTING?
One of the biggest disciplines in Trial Consulting is Jury Selection and Persuasion. Daniel Dugan, Ph.D. an ASTC member and Trial Consultant with Trial Science, Inc. in Reno NV compares his approach with bicycling in time trial competitions, where each rider starts at their own assigned time and race against the clock. During the race, you have no idea what place you are in and results are not posted until everyone is finished. Kind of like a jury trial to verdict. As Dr. Dugan describes it:”Our clients have one chance to put on their case in front of a jury. All the practice arguments, powerpoint slides, animations, etc., that we test in front of focus groups and mock jurors are performed to hone in on making our telling of our story the best that it can be. We are sophisticated in our practice and rehearsal techniques and we learn [usually by trial and error and feedback from our test audiences] what works and what does not. The feedback shapes our final effort. Our clients are allowed to have a fair and impartial jury hear their case. We cannot advise who to put on the jury, but we can suggest who to take off. Our science, however, we practice it as professionals, is to be very good at finding even the tiniest bit of bias that a prospective juror might have against our client and to suggest to our attorney who that person is and why they might hurt us. Most of the time we are faced with finding relative levels of bias and challenging the most biased while having to settle for some remaining bias among other jurors. The point is, our job is to eliminate bias as much as possible and just because we are very good at what we do does not mean we have manipulated anything at all. Then we have to sit back and wait for the outcome. We have no control over what the other side might do, what jurors decide is important or not to them, or how the dynamics of the deliberations are going to play out. We do our pre-trial work to be fully prepared for our one shot at a decision and the rest is out of our control or beyond manipulation.”
CAN A JURY REALLY BE MANIPULATED?
Often, people speak of “manipulating” juries, that trial consultants, using scientific techniques and tools can somehow mysteriously cause jurors to believe the unbelievable. David Illig, Ph.D., of Litigation Psychology in Portland Oregon writes: “A valuable thing to teach both witnesses and attorneys is that we should analyze communications in terms of BOTH ‘intent’ and ‘impact.’ You can have all the certainty you want about what your intention is, as a speaker. However, the impact is located in the audience, not the sender. ‘Manipulation’ is most often associated in people’s brains (audiences) with ‘improper’ influence, ‘unfair’ influence, and ‘incorrect’ impact. It is more often associated with being dissociated from the ‘truth,’ rather than associated with getting to the truth. Furthermore, saying that both attorneys and litigation consultants are attempting to manipulate the juries is damaging to the image of the court system. Symbols make a huge difference. Humans are symbolic creatures.”
And another voice on the topic of manipulation is Charlotte “Charli” Morris, M.A. of Raleigh, NC, co-author (with the late Dr. Richard Crawford, ASTC Past President) of The Persuasive Edge (Second Edition) and founder of Legal Communications Consulting. Charli writes:”I find it disrespectful toward jurors to talk about manipulating them. I don’t take them for granted. I don’t believe we control their minds or their behaviors or their decisions. I want to know what they believe before they sit on my client’s case so I can think about ways to connect our message to their experience and attitudes. I want to eliminate folks who reveal the bias that is most harmful to our case so they can’t unfairly manipulate the outcome of a trial. But that is an open and honest exchange that our attorney-clients can have during voir dire. And that is a direct connection we can make between our evidence and arguments and a juror’s life experience and attitudes. That is a healthy and non-manipulative connection we can make between our case and who they are.”
ASTC: GIVING BACK TO THE LEGAL PROFESSION
Another goal of the ASTC is the collection and distribution of knowledge and to provide a forum for the exchange of ideas, opinions, techniques, experiences and research results in the area of trial consulting. And the results are outstanding. The ASTC has recognized that both the members and the broader academic and legal community have a strong interest in what trial consultants know, the research we rely on, and the experience we have gathered from study, research, and experience. The ASTC has brought its publications to the membership and to an ever-widening audience. These communication outlets include:
ASTC Web – our general public and members-only website found at www.astcweb.org where you will find, among other features, a Consultant Locator and links to publications including:
Deliberations ASTCBlog: The purpose of Deliberations is to provide consultants and litigators from diverse backgrounds with the opportunity to disseminate and discuss important information about the field of litigation consulting to the broader legal community. Deliberations provides a forum to discuss not only “tips of the trade,” but also important (and sometimes controversial) information regarding the application of the social sciences to the practice of litigation. It has been an American Bar Association “Top 10” blog and cited as an excellent source for legal information. Deliberations averages almost 8000 hits per month.
The Jury Expert – a quarterly trade skills magazine featuring social science research applied to the legal field. It is written primarily for attorneys and others in the litigation community. ASTC members and guest authors translate relevant research into practical information and techniques for litigators. TJE had been published by ASTC since 2005 and provides access to hundreds of articles on such topics a: Bias, Case Preparation and Presentation, Voir Dire and Jury Selection. It appears in an online format here.
A permanent ASTC Pro-Bono Committee and committed ASTC members provide access to Trial Consultants around the nation. But the members and Society aim much higher. In the words of ASTC Past-President Kenneth Broda-Bahm, Ph.D. of Persuasion Strategies of Denver CO, whose own blog, The Persuasive Litigator, was honored by the ABA Journal with the highest recognition they have for bloggers—the Blawg 100 Hall of Fame.
“We are trial consultants, and our profession comes down unambiguously and unapologetically on the side of the Constitution, civil rights, and an open and tolerant society. If we can help it, any promised rollback on these rights will not come easily. Civil rights are already strained on a number of fronts in this country and the situation is likely to get worse in coming years. We are entering what’s likely to be a prolonged time where ideas like routine stop and frisk, ‘extreme’ vetting, ‘enhanced’ interrogation, registration based on religion, voting suppression, deportation forces… it goes on…. are all being tossed around like they’re normal political ideas. Some of these battles will be fought in the courts. Accordingly, now more than ever, there should be a greater role for experts in legal psychology and persuasion to add knowledge, research, and effectiveness in an organized and purposeful defense of American civil rights, an experienced group that is expressly committed to offering targeted low- or no- fee work on behalf of identified challenges to civil rights, working with groups like the ACLU and the Southern Poverty Law Center, with the goal to regionally identify cases and then offer the right people to help.”
HOW CAN I FIND OUT MORE ABOUT TRIAL CONSULTING?
First off, don’t believe the BULL. Take it as it is, a 45 minute hour of entertainment. I find it amusing that Dr. Bull not only leads his team to a victory for their client but he has often gone far beyond the Trial Consultant’s duty to help solve the crime, then watches as the true villain is brought to justice in the final act. His actions often “break the law” but in the world of television entertainment, should be seen as a very fanciful take on a peaceful profession that respects the law. For the real deal just visit the ASTC Home Page.
