Jury selection has become big business in recent years, with many law firms now offering scientific jury selection to their list of services. Legendary lawyer Clarence Darrow once claimed, “Almost every case has been won or lost when the jury is sworn.”
From the O.J. Simpson trial to the Rodney King trial and even the McDonalds “hot coffee” trial, trial consultants have been used to select the juries.
Although trial consultants can come from any number of backgrounds (business, law, marketing, anthropology, statistics), law firms are increasingly turning their attention to forensic psychologists to get the job done. And they’re not just concentrating their efforts on jury selection. In fact, trial consulting is a comprehensive industry that includes not only jury selection, but also refining arguments, witness preparation, and rhetorical coaching for attorneys, among other services.
Forensic Psychologists as Trial Consultants: Job Description, Duties, and Practice Guidelines
According to a Psychology Today article, about half of all trial consultants are psychologists. Trial consulting, according to the professionals who specialize in it, is viewed as a form of applied psychology.
Some consultants believe that the most important part of the trial is the jury selection process, and therefore concentrate their efforts on picking the perfect jury, while others spend their time working with witnesses or producing demonstrative exhibits. Still others focus much of their work on developing an effective trial strategy.
Some law firms hire forensic psychologists to specialize in civil cases, particularly in complex commercial litigation.
Just a few of the duties of forensic psychologists as trial consultants include:
- Preparing difficult witnesses for depositions
- Creating themes for the trial
- Creating focus groups and mock trials to:
- Obtain feedback
- Receive input on exhibits
- Gauge the effectiveness of themes or witnesses
- Test the impact of evidence
- Preparing clients and witnesses for testifying at trial
- Providing the lawyers with input on their opening statement
- Overseeing jury selection
- Performing post-verdict jury polling
Pre-Trial Work: Mock Trials and Focus Groups
The work of trial consultants often begins months before a trial, with the implementation of community surveys. Through this time-consuming work, forensic psychologists look for correlations between demographics and specific views on issues pertaining to the case.
Next, forensic psychologists assemble focus groups, where they test specific parts of the case—arguments, pieces of evidence, witnesses, etc.—to determine how different types of jurors may react. Forensic psychologists may even stage full mock trials, complete with lawyers and actors, which allow them to scrutinize the staged jurors as they deliberate.
Their work with pre-trial events like focus groups and mock trials gives the trial team the opportunity to:
- Discover differences in interpretations of case facts
- Assess the case’s strengths and weaknesses
- Determine witness and attorney appeal
- Learn how the perceptions of jurors translate into possible damage awards
- Determine settlement value
- Contrast and evaluate trial strategies and presentations
Forensic psychologists devise strategies and draw up juror questionnaires based on a sense of which juror characteristics matter most to the trial. In some cases, these questionnaires can be quite lengthy. For example, the questionnaire in the O.J. Simpson trial was 75 pages long and consisted of 300 questions.
Although demographics may first appear to be an important factor in jury selection, most forensic psychologists focus much of their efforts on juror personalities, experiences, and attitudes. In short, forensic psychologists work to match the case with the juror’s life experiences or value system. Further, they must consider how jurors will behave with one another.
As trial consultants, forensic psychologists must understand the psychological processes behind how jurors attribute blame. Using the psychology of blame, trial consultants help lawyers create strong themes for their cases.
Trial consultants provide witnesses with the tools and techniques needed to present information in a way that will engage the jury. Witness preparation is a critical component of trial preparation, as most trials depend on the strength of witness testimony, as well as the confidence, credibility, and clarity of the witness in deposition or while on the stand.
Trial consultants help prepare witnesses by honing their communication and listening skills. They also prepare them to behave cooperatively and to give clear and complete answers.
The work of trial consultants in witness preparation includes:
- Explaining the dynamics of the trial so witnesses understand the significance of their testimony
- Teaching strategies for the witness during both direct and cross examination
- Combining storytelling tools and techniques to keep jurors engaged
Forensic psychologists develop recommendations for trial strategy based on empirical research. They share a belief in experimental research and are sensitive to any biases that can skew results.
Trial consultants work closely with attorneys, providing services such as:
- Preparing and organizing direct examination
- Practicing direct and cross examinations
- Building a rapport between the lawyer and the witness
Preparing for a Career as a Trial Consultant: Education and Certification Options
Forensic psychologists preparing for a career in trial consultation are well served by completing a law degree in addition to their doctoral degree in clinical psychology with a forensic specialization.
These dual degree programs are often structured as PhD/JD or PsyD/JD programs. Upon completion of this type of program, graduates are able to pursue state licensure as a clinical psychologist and sit for the bar, if desired.
Students completing their post-doctoral fellowship requirements in a PhD or PsyD program in clinical psychology benefit from gaining experience while working with law firms that specialize in trial consultancy.
Forensic psychology specialty certification through the American Board of Professional Psychology Specialty Certification (ABPP) serves as a sign of competency and commitment to the profession, particularly for those who want to focus their career on a specific area of forensic psychology, such as trial consultancy.
To qualify for ABPP certification in forensic psychology, candidates must be state licensed as clinical psychologists and satisfy the following competencies related to forensic psychology:
- At least 100 hours of formal education, direct supervision, or continuing education in forensic psychology after the date the doctoral degree was earned; AND
- At last 1,000 hours of experience in forensic psychology, which was obtained by completing at least 5 years of post-doctoral experience (an LLB or JD degree may be substituted for two of the five years of experience); OR
- Must have at least 2,000 hours of post-doctoral training in forensic psychology, meeting APA curriculum guidelines
Professional certification is conditional upon the completion of a written and oral examination and the satisfactory completion of the credential review process.