Until reading JURY TRIALS: OUTSIDE IN (NITA, 2016) by psychologist Melissa Gomez, I was more than skeptical regarding the value of jury consultants. And I was not alone. As of 2005, “[a]lthough jury consultants claim high success rates, little research ha[d] been conducted on the actual effect jury consultants have in the outcome of a case.” COMMENT: A Jury of Your Peers?: How Jury Consulting May Actually Help Trial Lawyers Resolve Constitutional Limitations Imposed on the Selection of Juries, 41 Cal. W. L. Rev. 479, 492 (2005).
The opinion has not improved much over time. As one author noted in 2015, “[s]tudies have shown that while most consultants tout the success of scientific jury selection, the consultants often underestimate the force of the evidence in that particular case.” Allen, The Jury: Modern Day Investigation and Consultation, 34 Rev. Litig. 529, 540 (2015).
But this book was published by NITA, so I thought it deserved a glance. And the glance turned into a page-turning read because author Melissa Gomez, holder of a Ph.D. in psychology and a Masters degree in education, uses science as the foundation of her writing. And that makes this small book a gem, cataloging technique after technique, and insight after insight.
I asked Dr. Gomez to discuss the book, and here are her thoughts:
Why I wrote this book is an interesting question. Aside from simply being a glutton for punishment, I saw a need that I believed I could fill. I work on all kinds of litigation, and there are common themes that cut across cases that are civil, criminal, plaintiff/prosecution, defense, commercial, personal injury, patent…you name it. The need I saw was that attorneys have a hard time stepping outside of the weeds of their cases and their own perspective. They see their cases from inside out. My job is to hold up a mirror so they can see the case from outside in—as other people may see it differently.
As a psychologist, I work with lawyers on the educational, social and emotional issues involved in the litigation. There is learning involved in trials. There are interpersonal interactions involved in trials. There is stress involved in trials. This is all because there are people involved in trials.
Lawyers spend years learning about the law. I help them understand that, while the law needs to be the basis of the trial for the court and the record, the psychology of the people is what creates the story.
If I had to narrow down the three key things that lawyers need to keep in mind for trials it would be:
1) In order to advocate, you need to know how to educate. There are some basic learning principles that we need to consider and implement into our trial strategy. Understanding and implementing phenomena like primacy and recency (people remember most what they hear first and last) and Miller’s Law (short term memory can retain up to about seven items) can shape the way a trial is organized and categorized so learning and retention is optimized.
2) Jurors see things in big picture images. While the evidence is important, the big picture image that is presented on your side of the courtroom it the mortar to that evidence. We must look at what we are communicating between the lines on the trial transcript. That is where jurors often find what they see as the real story.
3) There is more psychology involved in trials than just that of the jurors’. We too often focus just on juror psychology and background and not enough on that of our witnesses, clients and selves. We must try to understand our witnesses on a human level so that we can help them learn to communicate in the foreign context of the courtroom. We must look inward to ourselves to determine why we do what we do and whether what we do is best for our case and our client.
Gomez’ advice goes well beyond these general principles. Illustrative of her insights is the book’s discussion of fighting liability even in a losing case as a strategy to reduce the ultimate damages award. This is counter-intuitive – after all, shouldn’t the jury treat a defendant more leniently on damages after that party accepts responsibility? But Gomez offers a new, and compelling perspective:
When liability is contested…jurors are forced to discuss the defendant by addressing the liability evidence. They become more aware of the defendant’s perspective and, as a result, feel empathetic toward the defendant, even knowing that the defendant did something wrong.
These words have particular resonance to me as they parallel experiences in criminal law. In the capital case context, it seems that jurors are less likely to vote for a sentence of death if the defense contested guilt than when the defendant just pleads guilty to murder and the entire case devolves into a fight over the appropriate sentence. There, the rationale is that the jurors punished already by returning a guilty verdict, so they can have a sense that their job was done and done well even when they then vote for the lesser [but severe] punishment of life.
So, looking outside in has great value for attorneys. And so does this jury consultant.