A 17-year-old female drunken driver struck and killed a 70-year-old woman with emphysema. To prepare for a wrongful death suit brought by the victim’s family, a jury consultant was hired to organize focus groups, which yielded surprising results.

“We found that a lot of people were sympathetic to this young girl, who made a mistake and would have to go around for the rest of her life knowing she killed someone,” said Amy Singer, a Hofstra University graduate whose jury consulting firm, Trial Consultants Inc., is based in Gainesville, Fla. “Some people also felt that since the victim was killed instantly, it was an easier death than dying slowly of suffocation.”

For the actual trial, potential jurors were asked if they would feel sorry for the 17-year-old. “If it weren’t for the research we did, we never would have asked that question,” Singer said.

At press time, the case, involving punitive and compensatory damages, was still in the hands of the jury.

Jury consultants provide focus groups, mock trials and other tools to help attorneys prepare for trials and assess strengths and weaknesses of a case to determine target settlement amounts. Consultants, who typically have advanced degrees in psychology or sociology, can advise attorneys on a wide range of matters, from choosing jurors to factoring in risk based on how a jury will perceive a case to convening shadow juries advising attorneys over the course of a trial.

As a patent attorney, Chad Ziegler regularly deals with highly technical cases and finds jury consulting services to be particularly useful. “Mock trials and focus groups not only allow you to see how a more-or-less impartial group of people will react to your argument, but they help determine if the technical explanation can be understood by laypeople,” said Ziegler, a partner and co-chairman of the litigation department at Scully, Scott, Murphy & Presser in Garden City.

Josh H. Kardisch, senior partner and chief trial attorney at Kardisch, Link & Associates in Mineola, also finds mock trials particularly useful for cases with complicated subject matter. For instance, Kardisch represented a landlord in a lead poisoning case in which a child was exposed to lead. There were some violations inside the apartment, and more significant violations outside the apartment. The way the laws are written, landlords’ requirements vary greatly inside and outside the living space.

“We found that jurors were able to pick up on the differences between the two, and that affected their view of my client’s exposure,” Kardisch said. The information gathered affected how Kardisch presented his case, and he was able to settle for a dollar amount that suited his client.

But not every complicated case warrants a jury consultant’s services. Because these services can be prohibitively expensive, the stakes have to be high. Mock trials cost in the tens of thousands of dollars, said Ziegler, who noted they’re typically reserved for cases in which millions of dollars are at stake.

However, over the past few years, less pricey online alternatives have emerged from a variety of providers. These services range from online surveys, in which respondents are presented with the facts and arguments of a case and asked to weigh in, to chat room-style mock trials to more sophisticated affairs in which mock jurors can view videos of attorneys’ statements and presentations of evidence.

Trial Consultants offers what it calls opinion streams, in which a text description with the facts of a case is sent to various cyber villages. Respondents write back with their opinions and questions, and, though they remain anonymous, Singer can tell which cyber village the replies came from. “We can tell attorneys what stay-at-home moms or accountants think and what questions they have about the case,” Singer said.

An opinion stream will cost about $1,000 to $2,500, in contrast to a full day of in-person research, including strategy sessions and mock trials, which runs in the neighborhood of $20,000, Singer said.

But while online alternatives can be significantly more affordable, Joe Campolo, Managing Partner at Campolo, Middleton & McCormick in Bohemia, does not see much value in them.

“There’s a human element to trials, which is why you can see something on the news and not understand why it turned out the way it did,” said
Campolo, who has looked into online consulting tools and would not use them in a case of any significance. “Nuances like eyes rolling can help win or lose a case for a trial lawyer,” he said. “The reason so few cases are tried and so many are settled is that the human element is so volatile. If jurors don’t like the way a lawyer combs his hair, it could make a case go sideways.”

Kardisch, too, has looked into online consulting services and chosen in favor of the in-person, albeit more costly, alternative. “The online versions are being pushed because they’re high-tech and less expensive, but I don’t think they will be used by too many people,” he said. “If you’re going to use a jury consultant, it’s best to have live contact to get the full effect of the body language and rapport.”

With mock trials, attorneys can watch through a two-way glass as the jurors deliberate. “We can see what they focus on and what escapes them,” Kardisch said.

While online services allow jurors to deliberate, they may be reticent to do so, said Singer, if they can’t see the other jurors and the looks on their faces. “They don’t know if there’s a bird of a feather present among the other jurors, and they may be afraid to say something and make waves,” she said. By contrast, Singer noted, respondents to opinion streams are more comfortable speaking their mind since their replies are anonymous.

Still, these respondents give reactions to words on a paper, which are flat in comparison to the spectacle of a courtroom.