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Principles and Practice of Trial Consultation

Richard Balon, MD

Wayne State University, Detroit, MI, USA

By Stanley L. Brodsky. New York, NY: The Guilford Press; 2009; ISBN 978-1-60623-173-9; pp 226; $35.00 (hardcover).

Some parts of trial consultation practice, especially jury selection, have received a lot of attention in the media and in some books and movies, mostly negative. A well-known example is the John Grisham book Runaway Jury and the movie based on this book, as pointed out by Stanley Brodsky, the author of Principles and Practice of Trial Consultation. Dr. Brodsky is professor of psychology at the University of Alabama and maintains an independent practice in trial consultation and forensic psychology. He suggests that, contrary to the popular perception, trial consultants are not unscrupulous, malevolent people who manipulate the legal system. Rather, he argues that “trial consultants are not impartial participants in the justice process. Judges, juries, and expert witnesses are expected to be neutral and objective. Trial consultants are not. Instead, consultants are best understood as allied with attorneys, avidly pursuing the objectives of the side that has retained them. Fairness is not the goal; that is up to the courts and juries. Making the strongest case, as part of the adversarial process, is the goal” (pp 1-2). So much for explanation and introduction—the rest of the book describes the real role and work of trial consultants.

The book is divided into 5 parts: I. Essential issues in trial consultation; II. Preparation of witnesses and attorneys; III. Jury selection principles and case studies; IV. Changes of venue; and V. Putting it together. Chapter 1, “Introduction to trial consultation,” first explains the role of the consultant as coach. The author informs us that nobody knows how many trial consultants there are and that trial consultants are not regulated, licensed, or registered. He also points out that consultants do not help people who commit contemptible acts get off—they help attorneys do their job better (p 6). This chapter also points out that the entire book is case-, not outcome-driven.

Chapter 2, “The case conceptualization,” discusses how to conceptualize the tasks of this profession. The author suggests that trial consultants are more like trial attorneys than behavioral scientists, “in the sense that attorneys need to find a way of thinking that resolves the case in their favor” (p 18). And they do that without any experiments to help to answer their questions. This chapter also discusses focus groups and shadow juries, which trial consultants use.

The discussion in chapter 3, “Toolbox for trial consultants,” focuses mostly on assessment scales used in trial consultations and the reasons for their use, and several books featuring collections of various scales. The author suggests that scales used in trial consultation work are the opposite of intuition.

The 3 chapters of the second part focus on preparing witnesses and attorneys for different tasks. Dr. Brodsky points out that part of what trial consultants do is to “prepare lay and expert witnesses to make a positive impression, to speak well during direct examination, and manage themselves with ease during cross-examination” (p 43). He emphasizes that “the word preparation of witnesses means getting the best out of who the witnesses truly are” (p 43).

Chapter 4, “Witness preparation for testifying in court,” points out that juries and judges evaluate “the credibility and worth of evidence in part according to the believability of the witnesses who present the evidence” (p 45). The author lists here what the witness should do when answering questions (eg, avoid qualifiers such as “I think” and “I guess”) and what nonverbal behaviors aid witness credibility (eg, maintaining good posture, looking at the jury). This chapter also discusses public figures on the stand (eg, the late Tim Russert), preparation for cross-examination of lay witnesses, and witness preparation for race inquiries.

The next chapter, “Preparation and examination of expert witnesses,” is probably most relevant for physician readers. The author points out that expert witnesses are not necessarily experts when they are witnesses and that their testimony on the stand could be pretty dreadful. The chapter reviews areas such as routine vs demanding examination; substantive preparation; anxiety reduction for expert witnesses; meeting with counsel and preparing for direct examination; narrative testimony; primacy and recency effects (primacy is, basically, the way a witness approaches the stand; recency is how a witness steps down from the stand); consulting with attorneys about direct and cross-examinations and depositions; and challenges to knowledge, skill, experience, and training and education.

The last chapter of this part, “Witness preparation. Findings from the lab,” describes some interesting findings from the author’s own research on witness preparation done at his witness research lab at the University of Alabama. Some issues studied include persuasion through witness preparation, gender and witness testimony, confidence on the witness stand, and expert-witness credibility.

Part III includes 4 chapters on jury selection: Chapter 7, “Jury selection: Basic approaches,” Chapter 8, “Jury selection: Internet sex offenders and juror sexual values,” Chapter 9, “No questions but deselection questions,” and Chapter 10, “Jury selection: Reversals.” Dr. Brodsky points out that the major sources of advice in jury selection draw heavily on ordinary common sense assumptions about potential jurors’ predispositions toward verdicts of guilt or innocence (p 88), and he notes that there are several problems with this approach, such as poor scholarly foundations, lack of feedback, and stereotypes. A very interesting section is the discussion of jury selection in a medical malpractice case. The last chapter of this part discusses reversals in jury selection, which the author defines as selection of the opposite, or reverse, of what one would normally do or think because of the specifics of a case.

The 2 chapters of the fourth part discuss “Change of venue consultations” (Chapter 11) and “Survey of pretrial bias” (Chapter 12).

The final part integrates the previous text in 3 chapters: Chapter 13, “Trial consultation in a capital murder case. Integrating the component of trial consultation,” Chapter 14, “Trial consultation in eminent domain cases,” and Chapter 15, “Where next for trial consulting? Emerging trends and limitations.” Both Chapters 13 and 14 are case based and present a lot of interesting, though technical, material. The last chapter, besides advising how to get started in trial consultation, discusses some approaches to research in this area (eg, online communities and social networking sites as sources of information for jury selection and other tasks; Zoomerang, Survey Monkey, and other Internet survey methods; audience response systems; university-based graduate research; and standardized methods in voir dire [the preliminary interview of jurors or witnesses to determine competency]).

This is an interesting, well-written, and entertaining volume about everything one should know about trial consultation. Forensic psychiatrists, those testifying as expert witnesses, and others interested in this area would find this book very useful and informative. The rest of the readership may find it a bit technical at times, but still entertaining and useful reading about one of the many maligned areas of our legal system.