Consultation and Testifying

Trial Consultation
Jury selection has become big business in recent years, with many law firms now offering
scientific jury selection to their list of services. Legendary lawyer Clarence Darrow once
claimed, “Almost every case has been won or lost when the jury is sworn.”

Although a trial consultant can come from any number of backgrounds (business, law,
marketing, anthropology, statistics) law firms are increasingly turning their attention to
forensic psychologists to get the job done. And they’re not just concentrating their efforts on
jury selection. In fact, a forensic trial consultant forms a part of a comprehensive industry that
includes not only jury selection, but also refining arguments, witness preparation, and
rhetorical coaching for attorneys, among other services.
Some consultants believe that the most important part of the trial is the jury selection process,
and therefore concentrate their efforts on picking the perfect jury, while others spend their
time working with witnesses or producing demonstrative exhibits. Still, others focus much of
their work on developing an effective trial strategy.
Some law firms hire forensic psychologists to specialize in civil cases, particularly in complex
commercial litigation.
Just a few of the duties of forensic psychologists as trial consultants include:
● Preparing difficult witnesses for depositions
● Creating themes for the trial
● Creating focus groups and mock trials to:
○ Obtain feedback
○ Receive input on exhibits
○ Gauge the effectiveness of themes or witnesses
○ Test the impact of evidence
● Preparing clients and witnesses for testifying at trial
● Providing the lawyers with input on their opening statement
● Overseeing jury selection
● Performing post-verdict jury polling
Pre-Trial Work: Mock Trials and Focus Groups

The work of trial consultant forensic psychologists often begins months before a trial, with the
implementation of community surveys. Through this time-consuming work, forensic
psychologists look for correlations between demographics and specific views on issues
pertaining to the case.
Next, forensic psychologists assemble focus groups, where they test specific parts of the
case—arguments, pieces of evidence, witnesses, etc.—to determine how different types of
jurors may react. Forensic psychologists may even stage full mock trials, complete with
lawyers and actors, which allow them to scrutinize the staged jurors as they deliberate.
Their work with pre-trial events like focus groups and mock trials gives the trial team the opportunity
to:
● Discover differences in interpretations of case facts
● Assess the case’s strengths and weaknesses
● Determine witness and attorney appeal
● Learn how the perceptions of jurors translate into possible damage awards
● Determine settlement value
● Contrast and evaluate trial strategies and presentations
Forensic psychologists devise strategies and draw up juror questionnaires based on a sense of which
juror characteristics matter most to the trial. In some cases, these questionnaires can be quite lengthy.
For example, the questionnaire in the O.J. Simpson trial was 75 pages long and consisted of 300
questions.
Jury Selection
Although demographics may first appear to be an important factor in jury selection, most
forensic psychologists focus much of their efforts on juror personalities, experiences, and
attitudes. In short, jury consultant forensic psychology works to match the case with the
juror’s life experiences or value system. Further, they must consider how jurors will behave
with one another.
As trial consultants, forensic psychologists must understand the psychological processes behind
how jurors attribute blame. Using the psychology of blame, trial consultants help lawyers
create strong themes for their cases.
Witness Preparation
Trial consultants provide witnesses with the tools and techniques needed to present
information in a way that will engage the jury. Witness preparation is a critical component of
trial preparation, as most trials depend on the strength of witness testimony, as well as the
confidence, credibility, and clarity of the witness in deposition or while on the stand.
Trial consultants help prepare witnesses by honing their communication and listening skills.
They also prepare them to behave cooperatively and to give clear and complete answers.
The work of trial consultants in witness preparation includes:
● Explaining the dynamics of the trial so witnesses understand the significance of their
testimony
● Teaching strategies for the witness during both direct and cross-examination
● Combining storytelling tools and techniques to keep jurors engaged
According to Brodsky, Cramer, Neal and Decoster (2010-2013), trial consultants can provide
information to witnesses regarding specific techniques that they can use to increase their self
efficacy and reduce their anxiety. Boccaccini (2002) and Brodsky (2013) states most of these
methods may include, but are not limited to, familiarization to the courtroom, breathing
exercises, imagery, and an overview of the cross-examination process that helps them through
the process.
Trial Strategy
Forensic psychologists develop recommendations for trial strategies based on empirical
research. They share a belief in experimental research and are sensitive to any biases that can
skew results.
Trial consultants work closely with attorneys, providing services such as:
● Preparing and organizing direct examination
● Practicing direct and cross-examinations
● Building a rapport between the lawyer and the witness
Training Required
Forensic psychologists preparing for a career in trial consultation are well served by completing
a law degree in addition to their doctoral degree in clinical psychology with a forensic
specialization.
These dual degree programs are often structured as Ph.D./JD or PsyD/JD programs. Upon
completion of this type of program, graduates are able to pursue state licensure as a clinical
psychologist and sit for the bar, if desired.
Students completing their post-doctoral fellowship requirements in a Ph.D. or PsyD program
in clinical psychology benefit from gaining experience while working with law firms that
specialize in trial consultancy.
Forensic psychology specialty certification through the American Board of Professional
Psychology Specialty Certification (ABPP) serves as a sign of competency and commitment to
the profession, particularly for those who want to focus their career on a specific area of
forensic psychology, such as a trial consultant forensic psychologist/trial consultancy or trial
psychology.
To qualify for ABPP certification in forensic psychology, candidates must be state-licensed as
clinical psychologists and satisfy the following competencies related to forensic psychology:
● At least 100 hours of formal education, direct supervision, or continuing education in
forensic psychology after the date the doctoral degree was earned; AND
 ● At last 1,000 hours of experience in forensic psychology, which was obtained by
completing at least 5 years of postdoctoral experience (an LLB or JD degree may be
substituted for two of the five years of experience); OR
● Must have at least 2,000 hours of post-doctoral training in forensic psychology, meeting
APA curriculum guidelines
Professional certification is conditional upon the completion of a written and oral examination
and the satisfactory completion of the credential review process.
Testifying
Expert Witness
Some of a forensic psychologist’s most important work happens on the witness stand, providing
testimony and presenting evidence in court cases and other judicial matters. In these
circumstances, they have a specific responsibility for upholding the integrity of psychology as it
is used within the realm of the legal system.
The role of forensic psychologists within the legal system is well-defined by the American
Psychological Association’s (APA) Division 41, which is dedicated to this subspecialty of
forensic psychology.
Psychologists as expert witnesses in court serve in a variety of civil and criminal court
proceedings, which may include:
● Civil proceedings (child custody cases, for example)
● Criminal proceedings (mental competency hearings, for example)
● Professional negligence lawsuits (medical malpractice suites, for example)
Forensic psychologists may assume the role of a forensic psychologist expert witness on a
voluntary or involuntary basis, meaning a prosecution or defense team may hire them, or they
may be subpoenaed. Their work is essential to any judicial proceedings, and they have an
obligation and a duty to remain cognizant of the ethical responsibilities that govern their
conduct while engaged in judicial proceedings.
Duties
Acting as a skilled expert witness psychologist, forensic psychologists express opinions based
on their specialized knowledge. In most jurisdictions, they must state their opinion within the
standards of their field and with a reasonable degree of certainty.
This means that as expert witnesses, forensic psychologists may:
● Base their testimony on information gathered solely for the purpose of testifying in the
litigation
● Offer their opinion on the cause or consequences
● Interpret the action of other persons
● Draw conclusions of the basis of circumstances
 ● Comment on the likelihood of events
● State their beliefs regarding nonfactual issues, such as:
○ Fault
○ Damage
○ Negligence
○ Avoidability
Forensic psychologists may become experts in litigation in one of three ways:
● They may be retained by one of the parties for the purpose of analyzing information and
providing an opinion.
● They may be appointed by the court for the purpose of sorting through conflicting claims or
conclusions.
● They may serve as an actual witness to the events at hand.