Jury consultants provide valuable insights in civil matters
By Paul Russell, AdvocateDaily.com Contributor
Large law firms sometimes use jury consultants for criminal trials, but these specialists can also benefit plaintiffs in civil actions, Oakville personal injury lawyer Jill Edwards tells AdvocateDaily.com.
She cites a case her firm was involved in last year, where a jury consultant put together a focus group to represent an average jury. A mock direct and cross-examination of the plaintiff was held, with law firm employees playing the part of medical experts testifying at the trial.
“We found that some key pieces of evidence we thought would be influential to a jury were not, and vice-versa,” says Edwards, partner with Edwards Pollard LLP, explaining that the test jury panel provided input through a questionnaire afterwards.
“It sort of pulls you back off the parts of your case that you’ve been fixated on as you have been building it, and gives a snapshot of how the evidence looks in the eyes of the average person,” she adds.
This fresh, objective look at the evidence through the eyes of laypeople is crucial, Edwards says.
“As lawyers, we live with these cases for many years before we get to a trial, and sometimes they turn on facts that no one really identified as being significant to a jury,” she says.
Edwards gives two examples, drawn from the mock trial.
The plaintiff testified that she could not afford physiotherapy for her injuries, yet she was sporting highly manicured nails that would have been expensive to maintain, she says.
Edwards says she noticed her nails but never thought they would be an issue.
“Many of the mock jury members commented on them, questioning how she could afford a costly manicure but not physiotherapy,” she says.
When Edwards asked her client about the manicure, noting the mock jury’s observations, the woman told her that she was widowed and her husband always loved when she had her nails done so she continued to get manicures as a way to feel connected to him after his death.
“This was not an answer that I would have ever expected but I understood why having her nails done was such a priority for her,” she says.
During the real trial, Edwards asked the client about her nails, just in case any jury members were questioning her spending priorities.
“She said the same thing, and it was straight from the heart,” she says.
The second example concerned Edwards' client's use of medical marijuana that she was prescribed to help deal with pain.
“Members of the mock jury were told that the defence was going to present photos of her smoking what she called ‘her medicine,’ in the hope that would portray her in a bad light,” she says.
The mock jury members said the photos would not influence their opinion, Edwards says, “as people don’t look down on marijuana use if it is for medical reasons.”
The actual trial for this case lasted almost eight weeks, and Edwards and her team were successful.
“I think having this consultant helped us understand how jury members think and gave us more confidence in putting together our case,” she says. “We were able to avoid some of the pitfalls that may have arisen by first testing the evidence with the mock jury."
Edwards says this was the first time her firm ever used a jury consultant, and another first in Ontario was that the judge allowed the fees paid to the jury consultant to be recovered.
“I accept the plaintiff's submission that a jury consultant was a reasonably necessary disbursement in the circumstances of this trial,” the judge wrote.
Edwards says this is the first civil case she knows of where this type of cost ruling has been made.
“If you are successful, the cost of a jury consultant can be recovered through the litigation,” she says.