In the latest episode of Certum Group’s podcast, Alternative Litigation Strategies, host Kevin Skrzysowski had the pleasure of speaking with Drs. Jaine and Bo Fraser of the Trial Psychology Institute. You don’t to miss this episode to learn about the benefits of leveraging trial psychologists, when you should engage with them, the critical importance of the research process, voir dire and opening statement phases, and how to turn your case into a winning story.
This transcript has been lightly edited for grammar and clarity.
Kevin Skrzysowski:
Welcome to the 29th episode of Certum Group’s podcast, Alternative Litigation Strategies where I interview industry leaders in the legal marketplace from the top companies, law firms and academic institutions across the country. On this program, we discuss the latest trial strategies and trends impacting the litigation industry. I’m your host, Kevin Skrzysowski, a director with the litigation consulting firm, Certum Group, where we specialize in working with businesses and their outside council to mitigate cap and transfer litigation outcome risk through our suite of litigation finance and insurance solutions. Today we have a very interesting program because we’re going to dive into a topic we never covered before and that is trial psychology and I’m pleased to be joined by Doctors Jaine and Bo Fraser, founders of the Trial Psychology Institute, where they have helped many of the country’s best litigators win their most challenging cases. Jaine and Bo, welcome to the program.
Dr. Bo Fraser:
Thanks Kevin for having us.
Kevin Skrzysowski:
Now, Jaine, you founded the Trial Psychology Institute about 25 years ago. How prevalent was the use of trial psychology at that time and what were some of your motivations for founding the institute?
Dr. Jaine Fraser:
It was really in its fledgling stage. Almost no one was looking at their trial from the perspective of what jurors would be thinking, and jurors are the decision makers. They’re the ones that decide if you win or lose. When I started doing this, it was very rare that there would be a trial consultant on the other side because it was some new. My motivation, I really was not motivated to get into it. It was a wonderful coincident accident. I was a treating psychologist in private practice. One of my patients sued her employer and the lawyer who was representing her came to see me and had me testify as a treating psychologist. Then started calling me, asking me questions about various cases as did her friends, and the rest was history.
Kevin Skrzysowski:
It’s a very interesting story. So I’m assuming that the science itself then has evolved in those fledgling stages. What are some of the biggest evolutions in the science that you’ve seen over the past 25 years?
Dr. Jaine Fraser:
I would say that the fact that there is any science at all, is this one of the things that evolved. Most of the research that has been done has been on criminal cases, the value of eyewitness testimony, are there false confessions, those kinds of things. But there’s been very little still in civil litigation. That’s where social psychology comes in. Social psychologists are the experts on how people form opinions, how they change opinions, how they are persuaded.
Kevin Skrzysowski:
Very interesting. Now as the complexity of litigation has evolved, I assume that the breadth of your offering has evolved as well, and looking at your website, trialshrink.com, which is I think a great name by the way, I see that you offer a very wide breadth of services, really a full 360 degree solution for litigators. Can you take us through the breadth of services that you offer?
Dr. Bo Fraser:
Sure. Most of what we do take place before trial, although we’re often engaged during and after trial for various things as well. What people come to us most for is voir dire or voir dire, depending where you’re from, you’ll have to bear with me for saying voir dire. We obviously attend a trial to help with jury selection and pick your jury, but a lot of the training with voir dire happens with the attorney, especially people who are new to working with us. We’ll work with them on understanding our method, crafting an outline that’s custom tailored to their case and everything else that goes along with voir dire preparation. We also do pre-trial research, focus groups, mock trials, whether it’s in a small rural town or a big city that requires a different format. That’s another thing. We custom tailor to the needs of each client.
We do a lot of witness preparation. That’s something people are not always aware that we do until we start working with them and then we say, “Hey, this guy needs some work,” and so they’ll engage us to help, whether it’s a lay witness or an expert witness. Opening statement construction is another offering that we have and we use a visual storytelling method. A lot of times attorneys will build their presentations based on what they feel is important to the case, getting all their facts and their loads of text and data and charts and evidence. And more often than not that not only puts people to sleep, but it’s so much information that jurors just throw in the towel and they give up on trying to understand. So this is something where psychological principles really come into play, not only in terms of organizing information to a digestible way, but a persuasive way.
And I’m fortunate to have worked in some other industries during college and grad school where I got to be pretty savvy with PowerPoint. So I kind of cut out the technological middleman and I take over the reins myself. I played the role of the consultant and the PowerPoint creator and do it all myself. I like to be in control of all that stuff because less gets lost in translation. During trial and post trial that sometimes Jaine or I will sit in on trial as an observer who is not an attorney. That’s one of our biggest strengths, is just simply not having the perspective of an attorney. So we’ll sit and observe trial and offer feedback, but the power of that process is amplified by using what’s called a shadow jury, which is when group of people, ideally six or so, maybe sometimes four people sit and observe the entire trial.
And the goal is to have that shadow jury mirror the actual seated jury as closely as possible. So the logistics of getting that done are interesting and challenging, but we’ve never had a shadow jury return a verdict that is different than the verdict of the actual jury in terms of whether it was a defense or a plaintiff verdict. And so that offers attorneys a glimpse into the minds of their jurors at every stage of trial, getting feedback at every break at the end of each day. So that is very valuable offering. And then after trial we do post trial juror interviews. As you might expect, this is more popular when you lose than when you win. People aren’t wondering, why did I win? They like to think they know why they won, but fortunately rare case where a client does not come out on the winning side, we’ll call jurors and ask them what their thoughts were. And so those are post trial juror interviews.
Dr. Jaine Fraser:
Couple of things to what Bo said, if I may. One is that you were talking about witness preparation, Bo. We prepare witnesses for their deposition and then we will prepare them for their trial testimony. That’s very different. We will also give lawyers questions to ask the other side when they are deposing witnesses from the other side. So those questions can be shown to the jurors later. They’re kind of complicated. They’re very simply asked questions, but they are designed just for the juror appeal. So I’m just going to make something up. Working for the plaintiff. Let’s say that you would say, did you make sure that these random drug tests were actually being given every month? Well, blah, blah, blah. Looking back now, do you wish that that’s something that you would’ve done? Do you think that was fair to injured plaintiff for you not to have followed through that? Do you think that having something in your procedure manual and not following through with it means that you are actively doing what you’re supposed to do? Those were some bad examples.
The other thing I wanted to say is that we’ll have people call us and say, “Our client did a terrible job in their deposition. Can you come get them ready for trial?” And in some ways, that’s like taking a dead dog to the vet. What are we supposed to do with that? You want to start in the process earlier rather than later, whether with your pretrial research, with your framing of the case, with your deposition preparation, all of these things are better done sooner than later.
Kevin Skrzysowski:
I think that’s very interesting. And I was going to ask you if during witness prep you ever engaged with a potential witness who didn’t perform well and it drove the decision not to put them on the stand or it actually drove the trial strategy not to go forward in that direction. I also find it just fascinating how the shadow juries have always correctly predicted the outcomes of the cases. I would find that alone to be absolutely invaluable from a litigator’s point of view. Very interesting. Now, you had mentioned finding out early in the case and Bo, you had mentioned why the research component and voir dire and opening statement phases are the most critical phases, and that’s when people come to you. I’m a former litigator, I know why that is, but not everybody may. Can you talk a little bit about why those stages are so critical? And let me piggyback that with another question I was going to ask, which was at what point in the trial process do people usually engage with you and is that different than when they should engage with you?
Dr. Bo Fraser:
The clients who worked with us the longest, they know to call us early. The moment they take a case, they line up, they get us booked for their jury selection day, they tell us we need to have a pre-meeting. There’s not even a name or purpose for the meeting necessarily. It’s just let’s talk to Jaine or Bo, get their thoughts and see what we need to do. So I mean we go in with a blank slate with the clients who work with us the most frequently. That being said, there’s that extreme and then there’s the, “Hey, I’m picking a jury on Tuesday. Can one of you all be there?” We get that too. And some of those people are our best clients. It’ll be a case they didn’t expect to go. They expected it to get pushed or settled, and we’re there for that too.
But we are able to do the most damage with the former, with the client who says, “Jaine and Bo, we need you here from day one.” Sometimes our input will be welcomed and needed where they didn’t expect it to be. So it’s just a trial companion as opposed to pigeonholing us to one specific task, is when we feel we are able to have the most positive impact on a case.
Kevin Skrzysowski:
Yeah. So getting in the earlier, the better, especially you ca probably identify some red flags in the case, which can help the lawyers drive the trial strategy.
Dr. Bo Fraser:
Yeah, I mean I think a lot of, sort of an unwritten offering that we provide is in those really early stage meetings we’ll come in and say, “Hang on, hang on. I hear you telling me this is your story. This is what you think your pattern of evidence is telling you. But this is what I’m hearing from an outsider’s perspective, from someone who is not as invested in the case and familiar with it as you are, here’s your real story, here is your human nature relatable story, good guy, bad guy. Also, the timing of when to introduce different elements of that story to maximize the impact.” That’s the perspective that we bring to the table that is sort of not something you can give a label to like those earlier offerings that I was talking about earlier. That’s sort of an in between the lines added value that we provide and we’re able to do that only when we’re brought in super early before that story has evolved to the point where you can’t change it as much.
Kevin Skrzysowski:
Because that’s what you’re looking for almost from client intake, is how would I eventually present this to a jury and what is the story as to the strengths of my client’s case or the strengths of my client’s defense as well? I believe it’s like the tagline on your website says, which I believe probably represents your overall philosophy, but lawyers know law, we know people. We think like lawyers all the time as well. So let me ask you, in terms of coming in early, has anybody ever come to you and consulted with you to help them decide whether or not to even onboard a client?
Dr. Jaine Fraser:
That has happened. I love doing that. It’s one of my very favorite thing. I have an out-of-town firm flies in once a year and says, “We’re considering these three cases or we’re consider”, or they’ll bring three that they want our input on. And often ends up being that the case that they thought was their best case, our opinion may be that’s really your worst case. That’s going to be a hard one to win. I remember on one they thought it was a throwaway, they were even going to take that client and it turned out to be a very profitable case for them.
Kevin Skrzysowski:
Well, we say that in our business, in the litigation funding and insurance business as well. We may review many cases before deciding to take one. And what we’ve realized over the years is that deciding what not to take is more important than deciding what to take.
Dr. Jaine Fraser:
Really good.
Kevin Skrzysowski:
Yeah. Because if you bring on a bad case and you have a problem child client, it can cause big problems and it can suck a lot of time across your entire organization. So that’s very critical.
Dr. Bo Fraser:
Along those lines, one thing that we bring to the table is that we see such a high volume of cases because an attorney might, three or five cases for a given attorney would be a huge year. We’re working on 30 cases a year across different industries because we’re brought in for game day. We don’t have to work, invest as much time as an attorney does in the case obviously. So that gives us the benefit of having exposure to such a wide variety and volume of cases, which gives us the perspective that Jaine was sort of alluding to. Given your exposure to all these different types of cases, what’s my case worth? We sort of are pretty good litmus test of that sort of thing.
Kevin Skrzysowski:
Okay. So at any given point in time, how many cases would be on your docket?
Dr. Bo Fraser:
Oh, man.
Dr. Jaine Fraser:
I mean, we’re doing something different almost every day. Last week we were running a focus group in Delaware for a copyright case and today I’m doing voir dire prep for a catastrophic injury.
Dr. Bo Fraser:
Got a jury next week for a auto case. I mean, it’s just all over the place all the time. It’s really hard to say, countless. I mean, the cases that we have, especially if you broaden the horizon to people who reached out to us for stuff six months or a year from now, there’s got to be 20 things we could potentially be working on, 20 different cases at any given time.
Kevin Skrzysowski:
Okay.
Dr. Jaine Fraser:
Before we get too far away from it, I cannot overemphasize the importance of doing pre-trial research. Isn’t what you think is important, and it really to a certain extent, it’s what Bo and I think it’s important because we see more of that, but what’s really matters is what the jury thinks is important. If I were a lawyer, I would no more take a case to trial that had a number of zeros behind it and potential value without doing at least one pre-trial research.
Kevin Skrzysowski:
And then in terms of, just so the audience understands, when you say pre-trial research, what are the components of that? What goes into that?
Dr. Jaine Fraser:
It is custom-made. We do this for whatever the firm is we’re working for and it can be as small as just getting a little bit of feedback from a group of unbiased people to a two-day mock trial. Bo, why don’t you?
Dr. Bo Fraser:
Sure. So I think, to answer your question, it always involves getting feedback from a group of unbiased people who are representative of your community. If you’re on a shoestring budget, get six people around a coffee table and have a neutral moderator read both sides and just get them talking about your case. If your budget’s a little more forgiving, then a focus group with two groups of 12, that’s one of our bread and butter offerings, is we’ll have a morning group and an afternoon group. The attorneys will present two times, one in the morning, one in the evening, and you’ll get feedback from 24 people all in one day. People know that getting feedback from these unbiased people about your case has tremendous value. That’s why people run focus groups. A sort of lesser-known ancillary benefit is that the attorneys themselves have a dress rehearsal, and it’s not that they’re unfamiliar with presenting, that’s not what I mean.
It’s they get to practice their story, they get to see what sticks, and then if they do this early enough, this guides their discovery. This guides their depositions. They know what they need to get into their story because they’ve already run a focus group and they know which elements were most important to the jury and that guides everything they do. The attorneys often walk away saying, “I’m so glad I did this now even though it was a pain and even though I had to put this stinking PowerPoint together for this little focus group,” they’re so glad they did it and that feeling is amplified the further in advance they do it.
Kevin Skrzysowski:
A couple of follow-up questions to that. So I work mostly with AM Law 100 attorneys and sometimes depending upon what firm you’re at, like that person thinks they’re the smartest person in the room. And now you could be this high-powered attorney, whether you’re on the defense side or the plaintiff’s side and you’re speaking with just members of the community. Are there things or what are the top three things that lawyers do that turn off jurors or just turn off the common person who was seated in a jury? Does sometimes ego play or the expensive suit, I mean, does that get in the way? Does that make a difference?
Dr. Jaine Fraser:
It depends on whose doing it. I mean, there are some people that absolutely can rock that, they can do it, get away with it and it become part of the whole production. I had one lawyer say to me, I want them to know I’ve been here before and I won and he had on his gold cuff links. But then there are others who we want them there in or in sport coat with patches on their sleeve. It depends on the person, it depends,-
Kevin Skrzysowski:
The jurisdiction.
Dr. Bo Fraser:
I can think of two, I’m trying to think of three. It’s true to Jaine’s point. Some people can get away with something and other people can try the same tactic and not pull it off because it’s just not their style. So I think jurors are really good about sniffing out phoniness. Vice President Harris supposedly put on a Southern accent and people jumped on her about it. That sort… You can’t try to be someone you’re not and jurors will sniff that out right away. Another thing that is a big tick off for jurors is going really hard after a witness when you haven’t earned the right to, when you have earned the right to be mean to them or go for the jugular and go for the kill. You think you’re getting this big moment because you got them to admit something, but if you don’t finesse it right, you just look like a big jerk who’s beating up on someone who doesn’t deserve it. Those are common pitfalls I would say, is trying to be someone you’re not.
Dr. Jaine Fraser:
Yeah, and one other thing we say lawyers go to law school and get a lawbotomy and they forget how to speak English. I mean, jurors are your decision makers and regardless of how educated they are, they tend to be pretty smart people and they’re looking for who’s right, who’s wrong, who are the good guys, who are the bad guys, who are the truth tellers. You need to simplify your information enough so that they can, without any kind of technical jargon, really understand at the highest level, that top 10% level the story that you’re trying to get across. They are unlikely to work and this is a change I’ve seen over 25 years. To go back to your first question, people do not like to think slow. They do not like to think deeply. We’re very used to having our information given to us very quickly and in small bits. If a lawyer is expecting their jury to go to a deep level and really understand the little ABCs and tiny Roman numeral one, two, threes, you’re going to lose them.
Kevin Skrzysowski:
Well, to your point earlier, I think you had referenced that one of your goals is to tell a human story and a winning story that’s relatable. Just so the audience knows, you had mentioned all these different types of matters that you work on. What are the types of cases that you do handle or is it easier to say, are there any types of cases that you don’t handle?
Dr. Jaine Fraser:
We don’t do very much criminal work.
Kevin Skrzysowski:
Okay.
Dr. Jaine Fraser:
There are certain kinds of criminal cases that I choose not to work on, but with civil cases, I mean I really can’t think of,-
Kevin Skrzysowski:
All across the gamut. Personal injury,-
Kevin Skrzysowski:
B2B, individual,-
Dr. Bo Fraser:
Contracts, IP, employment, malpractice, legal malpractice.
Kevin Skrzysowski:
The full civil spectrum, really.
Dr. Bo Fraser:
Truly.
Kevin Skrzysowski:
Okay. All right. Now, what are some of the questions or concerns that people may have when they come to you for the first time?
Dr. Bo Fraser:
I’ve got one, and it’s a little in the weeds, but it’s so common. I can almost guarantee any new client we work with is going to ask this question. I bet Jaine could fill in the blank based on this buildup, but it’s when we’re giving our voir dire, voir dire outline one of our primary goals is to generate conversation among jurors and from the get-go prevent jurors from even implicitly thinking that this voir dire process is where the lawyers talk and I listen. We want the exact opposite to be implied, that this is a time where it’s at the very least a dialogue and if anything, the jury panel does more talking than I, the lawyer.
Here’s the biggest concern when we introduce that method, the attorney always says, “Well, what if people don’t answer? What if I get crickets?” That they’re always terrified of silence and being left hanging, so to speak. So that is a common concern when they hear about sort of the foundation and our approach when it comes to voir dire, and first of all, that rarely happens in a room of whether it’s 30 or 200 jurors. Someone nice out will have some sympathy for this poor juror who’s not getting any responses and they’ll speak up. But it’s just funny that that’s a huge concern and it’s so ubiquitous among attorneys. They’re afraid of not getting responded to, and I’m not exactly sure why that’s so common.
Kevin Skrzysowski:
The fear of silence. We’re about out of the time, so let me just ask one final question. Anything you have to say about your overarching business philosophy or your approach, or what would you say about someone who’s thinking about leveraging a trial psychologist, but they’re just maybe on the fence?
Dr. Jaine Fraser:
Sometimes it’s difficult if you haven’t used a consultant before to see what the value is. Once you have used a good consultant, it becomes very clear, and we’ve had many attorneys tell us they would never go to trial without us again.
Kevin Skrzysowski:
I think that’s well said, and I think that makes sense and it draws parallels to our industry as well. We’ve worked out some cases with some folks and they said, “I don’t know why anybody would never not consider an insurance option to cap downside risk.” It provides certainty, just like one of the overarching goals of your institute, is to provide people with certainty as well, and I think that’s very interesting. Jaine and Bo, thank you very much for joining the program today. I really do appreciate all of the valuable insights into the world of trial psychology that you shared with us today. Now, if any members of the audience would like to contact you to discuss the services that you offer, what would be the best way to reach you?
Dr. Bo Fraser:
Visit our website, trialshrink.com. There’s a contact form there or you’re welcome to email [email protected].
Kevin Skrzysowski:
Excellent. Thank you again for being on the program.
Dr. Bo Fraser:
Thank you, Kevin.
Kevin Skrzysowski:
\And of course, as always, I’d like to thank the audience for listening. If you’d like to hear more programs like this, please be sure to follow us on Apple, Spotify, Stitcher or anywhere you’ll listen to your favorite podcasts. And if you’d like to learn more about the litigation, insurance and funding solutions that Certum Group provides, please visit our website at www.certumgroup.com or you can always reach me directly at [email protected]. Thank you.