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WHY LAWYERS SHOULD USE CONSULTANTS TO HELP CONVINCE JURIES, NOT TO HELP SELECT THEM:
A Review of Neil and Dorit Kressel's Stack and Sway


By SAM WILLIAMSON


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Friday, Jan. 11, 2002

Neil J. Kressel & Dorit F. Kressel, Stack and Sway: The New Science of Jury Consulting (Westview Press 2001)

In their new book Stack and Sway: the New Science of Jury Consulting, the husband-and-wife team of Neil and Dorit Kressel set out to educate their readers about the world of the jury consultant. In the end, for the reader who is trained as a lawyer, the book is mildly unsatisfying. And unfortunately, it is likely to be more unsatisfying for those with the greatest exposure to the legal system.

The authors' discussion of the sexier "stacking" element of jury consulting does little more than support what most lawyers' common sense would already lead them to believe. The authors' treatment of the "sway" portion of the jury consultant's job is far more educational, but - perhaps due to the less glamorous, less controversial nature of this part of the consultant's job - it gets relatively little coverage in the book.

The Problems With Judging Whether Stacking Is Effective

Stacking is the element of jury consulting that has been most controversial, whether as the result of novels like John Grisham's The Runaway Jury or because Johnnie Cochran placed great weight on the jury-picking assistance he received from Jo-Ellan Demetrius in winning acquittal for O.J. Simpson.

The authors go into a fair amount of detail about how consultants examine jury pools, and even some of the methodology used to select juries. In the end, however, they're forced to conclude that it's really impossible to tell whether jury consultants are actually able to influence the results of a case, because it's impossible to have a "control" group to test against the consultant's selected group. Accordingly, no one can really know the verdict another jury assessing the same case might have reached.

The authors do provide a useful summary of case characteristics that most lend themselves to scientific jury selection, stating that consultants can have the most effect when:

"(1) cases are publicized, politicized or unusual;
(2) the facts of the case are likely to activate, inflame, or polarize jurors' attitudes;
(3) the evidence does not strongly favor one party;
(4) juror leanings are strongly related to observable demographics or otherwise
discernible characteristics;
(5) the attorneys' case strategy depends heavily on certain assumptions made about the jurors;
(6) the predictors of juror leanings are not obvious;
(7) attorneys are permitted to conduct voir dire, ask many questions, and distribute
comprehensive juror questionnaires;
(8) the jury pool is diverse;
(9) the court permits many peremptory challenges;
(10) the other side is not using scientific jury selection;
(11) the attorney lacks familiarity with the jurisdiction; and
(12) the budget permits well-designed pretrial research."

This is an exhaustive list, and an instructive one: Because these factors are almost never all present, it means that jury consultants will make their contributions at the margins, and are best used in cases with a great deal at stake.

This makes sense: if the jury consultant will only have a 1% influence on the case (and that is probably a high estimate in most cases), it doesn't make sense to pay the consultant $100,000 unless there is at least $10 million at stake.

The "Nanny Case" and Other Failures of Jury Consulting

This book does a good job in allaying those fears. Simply put, the book makes clear that it's impossible to say whether jury consultants really work, and cases featuring the characteristics above listed, in which the book predicts consultants are likely to work, are uncommon.

In the Louise Woodward "Nanny Trial," for example, the defense used a highly paid consultant, and the prosecution did not. But because of the court's restrictions on voir dire, which limited the parties' ability to ask questions that would aid their jury selection, the jury consultants were unable to supply effective guidance. In the end, as most will recall, the jury returned a second-degree murder conviction - a significant victory for the prosecution, who did not employ consultants - that was overturned by Judge Hiller Zobel.

The message from the "Nanny Trial" for those assessing the jury consulting field appears to be that judges can do a lot to limit the effectiveness of consultants, and that it's difficult to tell in advance which cases will suffer these restrictions.

Jury Stacking and Race: It Matters, But Not All the Time

No discussion of the "stacking" of juries can escape discussion of race, as the authors acknowledge. As those in the profession and many outside it will doubtless know, the Supreme Court has prohibited lawyers from using race as a basis for their peremptory strikes. However, the authors are convincing in their argument that, despite this ruling, lawyers still use race as a factor in almost all jury selections.

In this respect, the authors are actually the bearers of good news for society, in that they argue - convincingly - that while race matters, it doesn't matter all the time. In making this argument they provide some anecdotal evidence that, while still anecdotal, is extremely interesting and, to my knowledge, fairly unpublicized.

For example, when the New York Police Department officers who shot Amadou Diallo were tried in Albany County, which is only 9% African-American (as opposed to the site of the incident, the Bronx, which is 38% African-American), they were judged by a group that included four black women - a third of the empaneled jury - one of whom was elected foreperson. The verdict to acquit was unanimous.

This is not to say that race never plays a role in juries' decision making, because it obviously does, just as race pervades many areas of our society. The authors, however, paint a convincing picture of a system where jurors almost uniformly make a good-faith effort to examine the facts of the particular case, regardless of the race of the victim and defendant. Though none of us can perform this function completely divorced from our backgrounds, it appears that the vast majority of the time jurors are able to render a judgment based on the facts before them.

Of course, while the authors' discussion of this subject is both encouraging and well-researched, it's hardly surprising. A poll of lawyers who have not read this book would likely indicate that most assume that while race is always a consideration, it is almost never the lone factor in any jury decision. This is true even in cases like Diallo, where the issues explicitly involved race, in that the prosecution argued that Diallo's race motivated the police officers to shoot him.

In the end, the authors' discussion of scientific jury selection ends up leaving the reader feeling that unless the lawyer's budget is virtually unlimited, there is not much benefit in hiring consultants to help pick a jury.

That is because judges are too likely to restrict voir dire; the composition of the jury pool is too likely to dictate the jury's composition; and at the end of the day jurors are still too much their own people to be typecast by a supposedly "scientific" process that purports to use jurors' biographical backgrounds to predict how they will reason and the verdict they will ultimately reach. As a result, it's unlikely that the consultant will add significant value, especially in comparison to their often substantial cost.

Indeed, the book's analysis suggests that the money spent on juror selection would be much better spent on the "sway" function: helping lawyers and witnesses tailor their presentations so as to have maximum effect on the jury. It is this section of the book that is most enlightening but, sadly, gets the least emphasis.

A Striking Example of How Jury Consultants Can Help with Lawyers' Arguments

Though it shouldn't be news to any of us in the legal profession, lawyers can always use the reminder that most Americans don't think the same way that we do. The Kressels do an outstanding job of showing that what lawyers think are strong arguments are not necessarily what jurors will think are strong arguments, and that lawyers have the wrong idea about jury preferences with distressing frequency. Jury consultants can do lawyers the greatest service by putting together mock juries to listen to arguments and observe witness testimony, thereby providing feedback to lawyers about which approaches are having the most success.

The Kressels also give some good anecdotal evidence on this subject, including a discussion of the 1980 antitrust suit that MCI brought against AT&T. When mock jurors heard one of MCI's lawyers mention the number $100 million as a potential damage award, they awarded precisely that number. But on a different mock panel, the lawyers mentioned no figure and the jury returned an award of $900 million. At the actual trial, the lawyers dutifully did not use a specific figure and were rewarded with a jury verdict of $600 million.

Obviously, it's impossible to tell exactly what went into the actual award decision, but lawyers were able to learn that the mock jurors seized on the number the lawyers gave them, thereby limiting the amount they would award. When the lawyers didn't provide a number, the verdict was much larger.

It should be noted that there are some ethical considerations in using consultants for witness preparation. Just as lawyers may not put words in witnesses' mouths, neither may consultants (who are generally the lawyers' employees).

The Book's True Audience: Probably Not Lawyers

Indeed, the book ends up painting a surprisingly positive picture of the way that jurors behave when they are called to serve, a picture that should be reassuring to those citizens concerned about the state of our jury system.

The other group who could benefit from this book is the group of lawyers who have large but not unlimited budgets for trial, and are trying to decide how to allocate their funds. The book sets forth convincing reasons for hiring jury consultants to stage mock arguments prior to actual hearings. Lawyers who have enough funds to pay for some consulting, but not the full "deluxe" package, would do well to read this book, which provides useful insight into the areas in which consultants provide the most valuable assistance, and those in which they are dispensable.

All told, however, this book is a fairly bland read. Most of the conclusions are predictable, and the drama implied by the title is never really delivered. The book is reasonable, well-written, and contains some anecdotes that were both interesting and surprising. That said, it won't teach experienced lawyers much that they don't already know, though it may cause them to have a little more respect for the jurors they are trying to persuade.


Sam Williamson is an attorney practicing in New York. After serving as an infantry officer in the Marine Corps and attending Harvard Law School, he was a law clerk for Judge Gilbert S. Merritt of the U.S. Court of Appeals for the 6th Circuit.

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