Are reports of the jury trial’s death greatly exaggerated? While jury trials are less common than they were decades ago, we’ve seen a surprising number of them in 2024: E. Jean Carroll’s civil case against former President Donald Trump for sexual abuse and defamation, Manhattan district attorney Alvin Bragg’s criminal case against Donald Trump over hush-money payments, gun prosecutions of Hunter Biden and Alec Baldwin, and the corruption case against US Sen. Bob Menendez.
With the exception of the Baldwin case, which was dismissed mid-trial, all these cases went to verdict. And here’s something else they probably shared in common: trial or jury consultants.
“There’s been a big shift in the legal industry over the past 20 years,” said Eric Rudich, managing partner of Blueprint Trial Consulting. “In the early 2000s, senior partners might say, ‘Why do I need a consultant? I’ve done a million cases.’ But now they say, ‘I need a trial consultant to see how I should try this case.’”
“I have not gone to trial in 15 years without a jury consultant,” said Gibson Dunn’s Orin Snyder, one of the nation’s top trial lawyers. “Trying cases is a team sport, and even if there’s a captain or quarterback, an integral part of the team in modern jury practice is a highly skilled and effective jury consultant.”
Trial consultants provide a wide range of services. They conduct community research surveys, convene focus groups, hold mock trials, assist with jury selection, and prepare demonstrative exhibits or visual aids to educate the jury. Trial lawyers and their clients can select particular options, depending on their needs and budget.
This requires consulting firms to have “a lot of disciplines under one roof,” according to Renato Stabile of Dubin Research & Consulting. Stabile and DRC’s founder, Josh Dubin, are lawyers by training. But their firm’s staff of approximately 60 also includes experts in psychology, data science, statistics, graphics, and technology. Experts with Ph.D. degrees in social psychology or communications are not uncommon in jury consulting.
Turning to jury selection, for which trial consulting firms are most well-known, the process more aptly would be named “jury deselection,” according to Stabile.
“You can only get rid of people from the jury, either for cause or using peremptory strikes,” he explained. “Don’t fall in love with any particular person because if the other side is doing their job, that individual won’t make it onto the jury.”
And in high-profile cases, weeding out so-called “nightmare jurors” is easier said than done. Lawyers must watch out for what Stabile called “stealth jurors,” who don’t reveal their true feelings about the relevant issues because they want to be part of the case. As an example, he cited the Trump hush money case, where certain people in the jury pool claimed they could be fair and impartial—until postings on their social media accounts suggested otherwise.
Stabile and his colleagues perform extensive research to unearth and expose potential biases among jury candidates. Before trial, they might conduct a community attitude survey, surveying thousands of jury-eligible individuals in the jurisdiction where the trial will take place.
This might be followed by a mock trial lasting two to four days. Lawyers or consultants present key evidence and arguments to perhaps 50 to 100 mock jurors—jury-eligible individuals who live in the jurisdiction and are paid for their time. Throughout the presentation, jurors use iPads to answer questions and provide reactions in real time.
After the presentation is over, the jurors are divided into smaller panels to deliberate for several hours, just like real juries. Provided with jury instructions and a verdict form, they’re asked to reach a decision. The lawyers and consultants watch the deliberations, either through one-way glass or recordings. The consultants write up their findings in research reports.
This research can inform what lawyers advance as key themes of the case; which witnesses they call, and how they prep them; which evidence gets used, and how it’s presented; how the lawyers write their opening and closing statements; what questions they ask of potential jurors, in questionnaires and voir dire; and which jurors the lawyers strike.
Hiring a jury consulting firm isn’t cheap—it can cost tens of thousands of dollars, all the way into the millions, to have a consulting firm join a case early, assist in guiding discovery, work on developing litigation strategy, and help execute that strategy during a months-long trial.
In light of the cost, it’s important to manage client expectations about jury consultants. As David Oscar Markus of Markus/Moss, one of the country’s leading criminal defense attorneys, told me, “When clients are spending all this money on a trial consultant, we have to be clear with them: hiring a consultant is just another tool in the toolbox. Nobody is a magician or a miracle worker. We are hiring a consultant to maximize the chance of a good result.”
Good results aren’t guaranteed. Just ask Donald Trump, who hired consultants in the E. Jean Carroll and hush-money cases—and lost both.
So is hiring a consultant worth it? Snyder of Gibson Dunn thinks so: “Yes, it’s expensive—but if you have a client who can afford it, in every instance it’s a great investment.”
Jury and trial expert Robert Hirschhorn learned about the value of jury consulting in 1984, when he was going to trial in what he thought was an unwinnable case. He hired pioneering trial consultant Cathy “Cat” Bennett, a psychologist who started advising lawyers on jury selection as early as 1972.
After she revamped his case and he won, Hirschhorn was hooked on jury consulting. He went on to work with (and later marry) Bennett, and they picked juries in several famous cases—including the 1991 criminal trial of William Kennedy Smith, in which their client was acquitted. A year later, in 1992, Bennett died of cancer—but more than 30 years later, Hirschhorn’s consulting firm still proudly bears her name.
Most jury consultants today rely heavily on empirical research. As Stabile of DRC told me, “We are big believers in following the data, even when it’s counterintuitive.”
Hirschhorn takes a more old-school approach. Although he also conducts focus groups—which he claims are accurate in civil cases, on the issue of liability, more than 80% of the time—he believes there’s no substitute for looking a potential juror in the eye, in open court, and relying on your intuition.
“A lot of people want to make you think it’s all science,” he told me. “At least the way I do it, maybe 20 or 30% of it is science. It’s really instinct, with a little science sprinkled in there. I let my heart and gut lead the way.”
Hirschhorn has been picking juries this way for 40 years. But he doesn’t think jury consulting will last forever.
“Consultants will eventually be replaced by AI,” he predicted. “In the beginning, the AI tools will just crunch data and produce demographic profiles, so they won’t replace us. But once AI progresses to the point where it can evaluate nonverbal communication, recognize emotion, and detect empathy, that’s when the game will change.”
“I don’t know if that will take 20, 30, 40, or 50 years. But it will happen—eventually.”
David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”
Read More Exclusive Jurisdiction
