The trial consulting field seems to fly mostly under the radar. As a part of the attorney’s confidential work product, our role in conducting research, preparing witnesses, and helping to advise on jury selection is not generally in the public’s view. But with some regularity, the topic comes up, with the question in law journals or in the popular press being a simple one: “Should they be allowed to do what they do?” The concern behind that question is the perception that the presence of social scientists in the legal process is a corrupting influence that reduces the fairness of our system of trial by jury. And, to be clear, there is much that my field could do better when communicating what we do and why, and there is certainly a role for higher standards. At the same time, the general suspicion of the field that crops up in these articles is not always well informed.

The most recent example is an article (Coughlan, 2019) that makes some valid points about the field, while at the same time proposing a solution that would create more problems than it is aiming to solve. In brief, the article by Stephanie M. Coughlan in the Brooklyn Law Review, argues that litigation consultants should be regulated, and — even more dramatically — should play a role in jury selection that is outside the adversarial system by working for the court rather than for either of the parties. My response is that, while she raises some intriguing possibilities, it is both realistic and desirable for consultants to remain a part of that adversarial system. More generally, it helps to understand and appreciate the role of consultants if we see their role as firmly a part of that adversarial system. In this post, I will break down the argument and my response.

The Charge

The article summarizes many of the common criticisms leveled against the consulting field: It is not independently regulated, there is a lack of entry requirements, it is difficult to prove its effectiveness, and it is unfair when it is not equally used by both sides. As I have noted in some past posts, I agree with some of these charges and believe that there is room for further professionalization in this young field. It would be beneficial if the professional organizations of trial consulting could speak more clearly to lawyers and the public on the qualifications of consultants and the effectiveness of their services. And it would also be beneficial if trial consultants were used more often in criminal cases and were less tied to the wealthier side in civil cases.

The central charge that Coughlan makes, however, is to link these weaknesses of the trial consulting field to the abuses of the voir dire process. After devoting substantial attention to the use of racial and other impermissible reasons for peremptory strikes, as well as the failure of Batson and related cases to curtail that abuse, she suggests that this is one of the consequences of the growth of the trial consulting field, quoting a number of critics who say that consultants, “appear to be tampering with the impartiality of the random jury.” This connection, however, is not only assumed, but is also more likely to run in the opposite direction.

The (Big) Assumption

The big assumption that the author makes is that the presence of trial consultants is causally linked to the abuse of voir dire by basing strikes on demographics. Apart from one reference to a consultant’s role in the O.J. Simpson trial 24 years ago — trial consultant Jo-Ellan Dimitrius said, at the time, that she wanted older African American women with a high school education or less for the Defense — the author does not say why trial consultants would focus on demographics more than unaided attorneys would.

My own experience is that, as social scientists, the great majority of trial consultants understand that, when compared to experiences and attitudes, demographics are very unreliable predictors of bias in a trial. Coughlan acknowledges that, based on their training, “trial consultants are in a better position to elicit juror biases,” which suggests that we would spend our time on the factors that matter most, which are not demographic. It is also important to remember that most of the abuse of peremptory strikes seems to focus on state prosecutors — a group that tends to be least likely to use a trial consultant. So, I think this connection runs the other way: The way to avoid the problems of discriminatory use of peremptory strikes is to encourage a voir dire process that is substantive enough to delve into relevant attitudes and experiences, and to encourage attorneys to get the help they need so they are focusing on the factors that matter the most.

The (Problematic) Solution

Saying that “meaningful change needs to be radical,” the author calls for greater attention to the trial consulting field from courts and legislatures. Part of the solution, she argues, is government regulation: “The fields of law and psychology are both highly regulated, so it logically follows that a profession blending both fields should be regulated as well.” And, as one of those unregulated professionals, I don’t necessarily disagree. Although, as the author notes, given that there is no common educational path for consultants, and given that consultants hail from a variety of disciplines including psychology, communication, law, and drama — a diversity that is more often a strength rather than a weakness — state licensing would seem to be extraordinarily difficult to put into practice. In the meantime, there is still a strong need to vet your trial consultants to ensure they’re experienced and qualified, but it is unclear that the state could serve that function.

The other recommendation from Coughlan’s law review article is that trial consultants should be hired by the court: “If a trial consultant is employed solely by the court, the consultant will be more motivated to fulfill the overarching goal of impartiality, decreasing bias within the proceedings.” The belief here is that consultants would apply their expertise in targeting bias, but would follow the judge’s interests, rather than the parties’ interests in removing only those with “objectively impartial experiences.”

There are some situations where court’s would do well to consider the advice of a nonpartisan consultant, for example, in setting up the conditions for voir dire in a difficult or high-profile case. And, I’ll admit, it is appealing to think about conducting jury selection on my own. However, it is doubtful that a consultant in a neutral role could ever fully address the parties’ interests during jury selection. The problem is that the forms and effects of bias are inevitably subjective, and it is unlikely that someone separate from the parties would have either the knowledge or the motivation to focus equally on all of the forms of bias that would matter to those parties.

The Adversarial Role of Trial Consultants

The bottom line argument from this note is that “the jury selection phase of a trial should not be adversarial.” This is the same line of thinking that some judges use when they conduct all of the questioning on their own, but Coughlan goes farther in arguing that the parties shouldn’t be in control of the challenges or the strikes either. She writes, “If a state-certified trial consultant employed by the court conducts voir dire in the presence of the judge and the attorneys, and focuses on a jurors’ personal experiences or habits rather than his immutable characteristics, the empaneled jury may actually be ‘impartial.'”

But in every other aspect of trial, our system embraces the idea that the best way to protect due process for all sides in litigation is to have equal access to the process. That is the adversarial system. For example, we would never trust a third party or the court with the selection of motions or the presentation of evidence. That is assigned to the parties. And we do that even knowing that the resources, the talent, and the experience levels of attorneys on each side can never be fully equal. Rather, the adversarial system relies on the motivation of each side to do its best. That same logic applies to the identification of bias as part of jury selection. Trial consulting is a component of that adversarial process, and it captures the motivation of each side to use all the tools at their disposal.

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Coughlan, S. M. (2019). The (Im) Partial Jury: A Trial Consultant’s Role in the Venire Process. Brooklyn Law Review, 84(2), 9.

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