Nyamweya is a columnist with a Kenyan print media.He is also a freelance writer with various online and offline media platforms
Trial consultants are social scientists, economists, or communication experts who offer assistance to lawyers in their presentation of civil lawsuits or criminal trials. They may also be responsible for preparing witnesses, improving rhetoric and arguments in trials and selection of jurors. Other trial consultants have extended their work to include sessions of arbitration and mock mediation. This is why some of them are referring to themselves as litigation consultants. The main duties of trail consultants however, include witness preparation, mock trials, shadow juries, conducting surveys on community attitude, as well as offering expert assistance in presentation of trials.
Majority of trial consults are people with background in law, sociology, psychology, marketing, private investigation, or linguistics. Although jury consultants may have expertise in his or her area of operation, the profession has by far, not been regulated. Many scholars have been however, skeptical on the accuracy and the general efficacy by which trial consulting are effective in appraising jurors. This is despite the fact that these jury consultants have claimed accuracy and efficiency in these endeavors. Jury consulting has also been criticized for giving a wrong impression to the public that one can purchase a favorable verdict by selecting the right jury. It is in this perspective where some judges have taken the initiative in appointing consultants for defendants who are indigent. The main reason in seeking the services of a trial or jury consultant is to assist in uncovering the existing bias for potential jurors. Owing to limitation of per-emptory challenges, lawyers may not be so sure on those who are questioned. There role is to offer attorneys the necessary criteria in selecting the ideal jury for their customers and helping them to determine the biases that do not fit such criteria.
For lawyers and attorneys, the court is not the only place for relaying or finding the truth, rather they can also use the mock jury for the same. A mock jury with a trial consultant gives way for the attorney in uncovering the truth as well as in discovering the potential performance of the witnesses plus the efficiency of the exhibits presented. If the stakes of the trial are presumed to be high, then it becomes necessary to hire the services of trial consultants in assisting the attorney to measure accurately his or her performance and what can or cannot work through the use of mock trials. In essence, mock trials with trial consultants can be used to improve the trial performance as well as furthering the sense of reality.
Unlike the work of attorneys, trial consultants are more concerned on people and not the law. After all, these trial consultants are not lawyers and therefore, are not indirectly or directly influenced by matters which lawyers may take for granted or those which they may not be aware of because they are deeply entrenched in the technical aspects of the law. Trial consultants are majorly concerned on how to get into the heads of jurors. They are therefore, essential in offering a different perspective of the court which offers an insight and understanding that can make a significance between success and failure.
Another benefit of employing trial consultants is that trial and jury observations are construed from the patterns of behavior expressed which are relayed to these consultants visually, physically , verbally, graphically and or linguistically through handwritten samples obtained in mock trials, focus groups and the real courtroom settings.
Demerits of Hiring Trial Consultants
In most times, trial consulting have given the general public an impression that by using their services, one has great favorable chances of winning the trial although this is not always the case. It should be noted that the success of the trial is a contribution of many factors which are not easily quantified, measured or replicated. Although studies have supported the notion that trial consultants do help in improving the performance of court cases, it should also be noted that such cases are not similar as trial consultants are more essential in some cases and less essential in other cases. The case facts/ or evidence would be the best determinant on the effectiveness of a trial consultant in a particular case.
Since trial consultants are majorly concerned on how to persuade the reaction of the juror to evidence, there is no doubt that they are bound to offer a significant help especially in cases which can be openly interpreted. However, cases with strong evidence which is tilted in favor of one side (for instance, a criminal case with eye witnesses or DNA/ fingerprint evidence) outweighs the characteristics of the juror. In such situations, the choices in jury selections with or without trial consultants will have a lesser chance if any in changing the trial outcome.
Other arguments that have also been raised against jury consulting are those concerning equal access to services. According to these opponents, it is unjust and not fair at all when parties with sufficient financial resources resort to hiring experts in the form of handpicked jurors who become biased towards their client’s preposition. In this perspective, only elite people or large entities will access the services of these trail consultants which in most cases are costly. This leaves an average litigant with a justice system that can be categorized as second class.
In conclusion, it may be argued that trial consultants are most valuable in cases whose evidence are ambiguous, or those whose outcome is likely to be negative. However, it should be taken into consideration that the main goal in trial consulting is to limit the level of damages (and if the case was a criminal one, influence a judgment that is more favorable). There is no doubt that this profession have been successful in many instances, and this is the reason why they are thriving in the market. It is also the reason why they are being sought after by attorneys and litigants.
Apparently, trial consultants with enough experience and effectiveness would make the job of attorneys to appear very easy. Just like other professionals, their services can also be regarded as significant. Similar to other services in the market, the services driven offered by trial consultants are chiefly driven by client demands. This means that if there were no potential customers, trial consultants could not have been in the market today. For trial consultants, the customers are litigants and trial attorneys who were have a significant demand on them.
Silas Nyamweya (author) from Nairobi, Kenya on December 25, 2020:
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