MADELEINE BRAND, host:
In courts these days, a jury trial is not as common as it once was. Many criminal suspects fearing tough mandatory sentences they could face are making out-of-court bargains for lower punishments. Civil litigants are using arbitration to save time and money, and jury consultants don't like that trend. They make their living on cases that go to trial. So they're looking for new ways to market their expertise. In part two of his series on jurors and related issues, NPR's Ari Shapiro has this report.
ARI SHAPIRO reporting:
Jury selection is one of San Francisco trial lawyer Jim Brosnahan's favorite parts of his job. It allows him to play psychologist for a day.
Mr. JIM BROSNAHAN (Trial Lawyer): Because there you are looking at real people and your assumptions, whatever they might be, crack very quickly when people start to talk.
SHAPIRO: He likes to think about whether older or younger jurors would be good for a particular case, what the advantages might be to choosing someone who doesn't want to be on the jury or someone with strong opinions. But despite his 45 years of experience, Brosnahan is not a psychologist. So every time he goes to trial, he hires a consultant.
Mr. BROSNAHAN: They have an expertise in social relations and they understand the demographics. They understand how opinions are made and they enrich the trial lawyers' understanding of the kinds of jurors that might be used and the arguments that might be used.
SHAPIRO: Lawyers will always have work even if the majority of their cases settle out of court. Trial consultants, however, have more at stake. Daniel Wolfe is president of the American Society of Trial Consultants.
Mr. DANIEL WOLFE (President, American Society of Trial Consultants): Fewer and fewer cases are actually going to trial and so, you know, in a manner to adapt to that, trial consultants have had to get creative to ply their trade in other settings and other avenues in order to essentially keep plying their trade.
SHAPIRO: Consultants are trying to redefine their profession in order to remain relevant. This weekend at the American Society of Trial Consultants' annual meeting in Philadelphia, an entire day is being spent discussing ADR, alternative dispute resolutions. UC Davis law Professor Donna Shestowsky is one of the presenters.
Professor DONNA SHESTOWSKY (UC Davis): I think that what we call trial consultants today will no longer exist maybe five or 10 years down the road and instead will have in their place case consultants, and that change in label or title would reflect a change in the modern legal landscape where really only a small minority of cases these days are resolved at trial.
SHAPIRO: Some lawyers are skeptical that trial consultants can redefine their role. Elizabeth Tanis is a partner at the law firm of Sutherland, Asbill & Brennan in Atlanta. She depends on consultants for her cases that go to trial, but she has a hard time imagining how they could be useful for out-of-court settlements.
Ms. ELIZABETH TANIS (Sutherland, Asbill & Brennan): Overall, when we think in terms of settlement strategy or whatever methods we might go about in talking to the other side, I don't see much room there for a trial consultant.
SHAPIRO: That's an attitude that trial consultant Jim Dobson of DOAR Litigation Consulting in New York has heard before. He's had to convince litigants that his services can be useful even if the parties are not going to court. He says the basic techniques are the same regardless of the setting.
Mr. JIM DOBSON (DOAR Litigation Consulting): Whether it be jury consulting or arbitration consulting, you know, help them better predict really what arguments are going to work, which ones aren't going to work, where their problem areas in their case exist and help them better understand how decision-makers, whether they're jurors in a jury trial or arbitrators in an arbitration, are going to make their decisions.
SHAPIRO: So where his company might have hired mock jurors to deliberate the case before, now they'll hire mock arbitrators to evaluate how the real arbitrator might respond to various arguments. DOAR Litigation Consulting only started handling out-of-court negotiations two years ago, but it already makes up 20 percent of the company's business. Across the country, many consultants are just beginning to explore this arena. The rest of the industry is waiting to see whether it takes off. Ari Shapiro, NPR News, Washington.
BRAND: And there's more on this series of reports, including a quiz to test your knowledge of the US jury system, at our Web site, npr.org.
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