Keene Trial Consulting

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The ideal time to call regarding a consultation is early in the development of the case, before discovery is closed and prior to key depositions of the opposing witnesses. The normal time to call is within the last 60 days prior to trial, when facts are largely known and the case has approached the fine-tuning stage. We work with both scenarios and in many different capacities.

This is a more formal and thorough approach to case testing than focus groups, but the goals are similar. Mock trials typically involve presentations of evidence and argument, witnesses (either through video tape or live using actors for the opposing witnesses as well as the actual witnesses from your side), formal use of demonstrative evidence, evaluation of the impact of opening statements, witnesses, evidence, and closing argument. The very thorough report of the groups examines the value and impact of each element of the presentation, as well as addressing specific questions of concern about the cases, normally including the jury charge issues. A major difference between this approach and most focus groups is that these programs typically run at least a full day in length, and can be expanded to resemble a summary jury trial in scope.

This aspect of trial consulting is a feature of all of the approaches employed by Keene Trial Consulting. Between focus groups, mock trials, and trial participation, in any given year we evaluate more venires, listen to more deliberations, and examine the impact of more argument than the busiest trial lawyer could ever manage. It is the nature of our profession. The fact pattern may be about intellectual property, medical negligence, or a contract, but winning is always about people. The consultation around themes and strategies for trial is the product of our experience in having studied individuals, groups, and social psychology as it applies to jury behavior. The result is an ability to assist in designing an effective voir dire, linking it with an engaging opening statement, witness strategies, use of demonstrative evidence, and closing arguments that mobilize juries to take action.

This is a major area of activity for Keene Trial Consulting, and on occasion we are asked to come in at the last minute just to assist with theme development and jury selection. Our goal is to help develop an effective voir dire strategy, with the goals of increasing the number of strikes for cause, identification of venire members who are likely to be unsupportive of our case, and to keep the spotlight off those jurors likely to be sympathetic to our case.

Understanding what aspects of the case were most persuasive for the jury can be valuable, in planning appeal argument, preparing for future litigation, and global commitment to improving skills. The two most common forms of this research are over the telephone through the use of a structured interview format, or less formally getting the jury back for a reunion at a restaurant or dining club for a private dinner, during which the trial is discussed. Telephone interviews are more helpful in getting individual opinions fully articulated, while the group gathering provides greater appreciation of the leadership issues and group dynamics.

Focus groups are extremely useful in getting reactions to a wide array of aspects of the case. What will a jury think of the witnesses? Show tape excerpts from depositions and solicit feedback. What sorts of demonstrative evidence will be helpful in getting this story across? Devise a focus group to get the group to examine what you have in mind and offer suggestions. What themes and language resonate most effectively with jurors who hear this set of facts? Lay out the story and get the group to describe their associations, impressions, and reactions to the situation.

Focus groups come in two primary forms. Concept focus groups are less rigidly structured and resemble a brainstorming approach to developing themes for trial. This approach is akin to the discovery phase of trial preparation, and is most often used in that time frame of the case development. Structured focus groups involve a set presentation, usually of facts and argument that are anticipated at the time of trial. Structured groups, like mock trials, are also helpful for the trial team in that to do them well requires thorough consideration of what the themes and strategies of the opposition will be. The length of the group sessions, as well as the size and number of groups to be run, are areas of flexibility. The very thorough report of the groups examines the value and impact of each element of the presentation, as well as addressing specific questions and issues of concern about the cases.

In high-profile cases or when there is widespread community involvement in the trial, this can be extremely important. For venue analysis, it is invaluable. Examples of appropriate use of this strategy include litigants that are controversial celebrities, pollution of natural resources, major economic impact on the community, community outrage or activism, or a matter that has garnered high levels of media coverage.

Some witnesses worry that preparation with a consultant means that they are going to be told to say things that they don’t believe, or testify to something other than the truth. Keene Trial Consulting subscribes to the Code of Ethics of the American Society of Trial Consultants, and we do not participate in such efforts. Witness preparation is an educational process, during which witnesses are taught how to communicate effectively, how to use language that conveys their testimony clearly and accurately, how to maintain their composure in an unfamiliar and stressful setting, how to stay on point, and details about how to credibly integrate the over-arching case themes into their testimony.

Trial observation (with a consultant attending the daily proceedings) or the use of a shadow jury are ways of staying abreast of the impact of the evidence and the judge’s rulings on the jury. Did the technical expert communicate effectively? Did the angry outburst appear defensive or justified? Did you seem attacking of the witness or appropriately challenging? When trial observation is used, the consultant interacts with the trial team on as regular a basis as is deemed productive, in addition to preparing a daily commentary on the themes and major points that were established during that day’s proceedings. Shadow jurors are polled for their reactions to each witness, and their feedback is collected and quickly compiled every day at lunch and at close of court to assist in the next phase of the trial.

Keene Trial Consulting is available to provide Continuing Legal Education programs to Bar Associations, Trial Law Associations, and litigation sections of law firms. Please contact Dr. Douglas Keene to discuss your interests.