Principles and Practice of Trial Consultation

This book is the latest in a series of monographs addressed to expert witnesses and legal professionals from forensic psychologist Stanley Brodsky. Readers will find it informative, entertaining, and somewhat jarring. Although the book is brief, its content is rather weighty. Trial consultation is portrayed as an art and science in which bias is to be assumed, and little or no attempt is made at striving for objectivity. The goal of the trial consultant is to help the legal team make its strongest case and select the jurors most likely to be sympathetic to its arguments. Forensic specialists need to pay attention here. Although conspicuous by its absence, Bernard Diamond's classic paper appears vindicated.¹

Presented in five sections of two to four chapters each, Brodsky relies on his own research and case studies to make his points. Part 1, “Essential Issues in Trial Consultation,” describes this activity as relying on behavioral psychology and marketing, although it is unregulated and only arguably a profession. The core competency of the trial consultant is case conceptualization, the ability to develop a narrative that the jury will find convincing and that will shape witness preparation, jury selection, direct and cross-examination, and opening and closing arguments. Brodsky provides an annotated bibliography with sources dated 1983 to 2007, weighted toward jury selection instruments including two evidence-based scales; he wryly admits, however, that the verdict does not always correlate with the hoped for results.

Part 2 focuses on witness and attorney preparation. Preparation of both expert and lay witnesses gets detailed attention, and dealing with questioning related to racial discrimination and gender-intrusive cross-examination is emphasized. Impression management is key, and suggestions for improvement in this area are provided. Research using undergraduate students confirms what most readers of The Journal already know, that good expert testimony requires that knowledge, confidence, trustworthiness, and likability be projected from the witness stand.

Jury selection is addressed in the third section. The author repeatedly admonishes that common sense, intuition, and demographics are fallible. Beware of heuristics, biases, and stereotyping and instead pursue a more empirical approach based on academics who publish and other trial consultants who are freed from attorney work-product restrictions. Telephone surveys with case-specific descriptors can be more useful. Several case studies are offered, including a very effective one dealing with Internet unwanted sexual solicitations, especially of minors, and the effective use of voir dire in highly emotional cases. Juror deselection gets exhaustive attention.

Changes of venue to avoid pretrial biases constitutes Part 4. A nice history of the concept and the utility of community surveys flesh out this section. Readers will find illuminating the author's detailed process map for conducting surveys and his case examples, as well.

The concluding section, titled “Putting It All Together,” presents two difficult case examples. The first, a capital murder case, suggests voir dire techniques in cases in which jurors will be exposed to gruesome photographs and describes preparation for the testimony of a defendant whose testimony style and appearance are weak. The second example, involving eminent domain, points out how emotionally charged such cases may become. Brodsky recommends that potential jurors prone to boredom, detected by their responses to survey instruments, be avoided. The outcomes of these case examples are not divulged, keeping the focus on the trial consultation process itself. The book ends with a chapter on emerging trends and limitations of the field, suggesting that new technologies will reduce the reliance on the telephone survey, and social networking sites will gain in importance. Web-based survey entities like Survey Monkey, RiddleMe This, and Zoomerang will be added to the consultant's toolbox. We can look forward to evidence-based trial consultation as an achievable goal.

There is an integrated bibliography and a useful index. Although many of the recommendations and processes described in trial consultation run against the striving-for-objectivity portion of the ethics code of the American Academy of Psychiatry and the Law, it is important for forensic specialists to know what is available to attorneys and how it affects the American trial court system. The United States has recently gone through a difficult political process in its presidential election, with the seemingly incessant polling results reported by the various media and marketing techniques of the political parties. Perhaps Larry Sabato's earlier book² would make a nice companion for Brodsky's excellent addition to the forensic literature.

• © 2013 American Academy of Psychiatry and the Law