Legal Update

Cut the “ Bull”: Media Portrayals of Social Science in the Law

The impacts of media depictions of trial consultants and social scientists in the legal system.

By Trisha E. Volpe, JD

After watching a couple episodes of CBS' new hit show “Bull,” I'm left slightly confused about what Dr. Bull does for a living. He's supposed to be a jury consultant, a top-notch psychologist who appears to predict jury behavior to the benefit of his clients. The show is based on the early career of Phil McGraw, PhD, when he was a trial consultant.

However, Dr. Bull also appears to be a trial lawyer, police investigator, spy and mind reader, with a little jury tampering mixed in. He also happens to solve the mystery of the day in 42 minutes or less, not counting commercials. This professional combination has turned Dr. Bull into a fictional television legal superhero of sorts – at least the ratings seem to indicate that.

But “Bull” has also sparked some debate in the trial consulting and social science communities about how media depictions of the profession affect public perception of the role of psychologists and other social scientists in the legal system. Add to that, concern about client expectations and having to answer such questions as, “if Dr. Bull can read a juror's mind and tell me how the jury will decide the case, why can't you?” It has even gotten to the point where some of our trial consultant friends and colleagues are reporting hearing mock jurors discuss the show during deliberations in recent mock trials.

There are also those who have acted as myth-busters, “calling bull” on the show's inaccuracies and providing a reality check. For example, one author writes that while “Bull” presents jury consulting as fancy high-tech work, the reality is that most jury consulting is based on social science. And the biggest misnomer of all? “Bull” puts the jury consultant in charge of the case (Broda-Bahm, 2016). Anyone who works with lawyers knows better.

But the concern over “Bull” is tempered by another perspective. Others in the trial consulting community have said they appreciate how the attention of a television show being watched by millions of people is sparking curiosity about their profession and its role in the law—think about all of those people who wanted to be forensic scientists after watching “CSI.” Others still, believe “Bull” is a great marketing opportunity and will make potential clients wonder whether they should engage a trial consultant of their own.

The history of professionals being portrayed in television shows and in movies follows a long and winding road. “Bull” is just the latest in a list of generally inaccurate, exaggerated depictions that glorify certain professions and lead to scoffs by both the professionals whose job is on public display and media critics. Remember FBI agent-in-training Clarice Starling from “Silence of the Lambs” and her too-close-for comfort dealings with cannibalistic serial killer and psychiatrist Hannibal Lecter? Or Matlock? He was a pretty good trial lawyer. Television has also given us “Law & Order,” “The Good Wife,” “ER” and “Chicago Fire,” just to name a few.

Media experts and observers suggest producers are drawn to developing and backing shows like “Bull” because audiences seem to relate.

“Shows set amid these types of professionals come with built in life-and-death conflicts as well as an inherent respect in the mind of the average viewer - a level of respect that I think is missing from viewers' experience of plumbers, insurance salesmen and … politicians,” says Brian Lambert, a journalist who covers media issues for Minnesota publication MinnPost.

Lambert doesn't seem too concerned that these shows paint an inaccurate picture. The professionals shouldn't be too concerned either.

“No one whose opinion I value seems exactly confused about how long it takes to run a DNA test or how lawyers really dress. The crowd that thinks the hijinks of ‘Gray's Anatomy' are SOP in their local hospital probably still believe in Santa Claus and campaign promises,” Lambert says. 

No matter where you land in the “Bull” debate, it does remind us that the use of social scientists as consultants in trial preparation and jury selection continues to be a point of controversy in both the legal and social scientific communities (Stolle, 1996; Kressel & Kressel, 2004). There is little doubt that the controversy has been sparked, at least in part, by the media.

Aside from fictional portrayals in television and film, the mainstream news media started shedding light on the trial consulting profession many years ago. The coverage of trial consultants came into its own during the O.J. Simpson case. More coverage has followed in the two decades since. One story quoted a trial consultant who described herself as a “13th juror” (McDermott, 2004). Casey Anthony had a jury consultant (Hsieh, 2011) and in 2013, the Washington Times published a story about plans officials with the Securities and Exchange Commission had to hire a “mock trial firm” to help its lawyers get ready for big cases (McElhatton, 2013).

What has been said and written in the media about the role of trial consultants and other social scientists in the legal system has often focused on two aspects of the profession – the work itself and the ethics of the work. The first type of coverage sheds light on the science of predicting human behavior based on demographics, life experience and personal biases among other things and understanding how behavior changes when you put 12 people in a room together.

“Remember the movie ‘Twelve Angry Men'?” says John Tauer, PhD, a social psychology professor at the University of St. Thomas in St. Paul, Minnesota. “A jury deliberation is a fascinating laboratory. Groups are dynamic and organic and sometimes a couple of outspoken people can play an inordinate role...There are dozens of factors that go into a jury's decision-making.”

The second type of media coverage of the trial consulting profession focuses on the ethics of such work and concerns that juries can be bought and paid for with high-priced help, raising questions about whether jury behavior can really be predicted fairly, accurately and effectively. Some critics have expressed fear that the practice of trial consultation serves to threaten our system of justice (Myers & Arena, 2001).

Tauer believes that's an extreme response and that trial consulting and predicting jury behavior is a combination of both art and science.

“You can understand that taken to an extreme, there might be some concern,” Tauer says. “The trial consultant's ability to read personalities is valuable…but there are variables that are uncontrollable to make it a perfect science.”

Trial consultants have certainly thrived in the marketplace since O.J. Simpson. That success is reflected by the growing membership of organizations such as the American Society of Trial Consultants (ASTC). ASTC membership has grown from 19 in 1983 to a group 500 strong today. Some authors have concluded that market success is an indication that trial consulting is effective (Stolle, 1996).

Furthermore, when it comes to ethics, the use of trial consultants may be no less fair than other fundamental aspects of our legal system, such as expensive lawyers (Stolle, 1996). While effective consultation may place one side of a dispute at an advantage, this may also be true of virtually every other participant in the trial process. Attorneys, witnesses, experts and judges all differ from case to case and allow for variations in the "justice" associated with a judgment (Myers & Arena, 2001). Given the renewed interest in the trial consulting profession a la “Bull” and the growing use of the expertise of social scientists in high-profile cases, the effectiveness and ethicality of trial consulting may warrant further study. Such research might examine the effect of public perception on the role of trial consultants and other social scientists in the legal system and the impact of public perception on fairness. It may also be appropriate to renew best practices for ensuring effective, accurate, fair and ethical trial consulting provided by highly skilled professionals who don't promise to read minds.

While keeping audiences riveted, “Bull” and media coverage of the trial consulting profession has brought attention to the importance of strategic thinking about juries and how lawyers communicate to juries. We know trial consultants are not mind readers, but their expertise in social science and effective communication can help lawyers craft winning cases. And if nothing else, “Bull” certainly has all of the elements of a successful television show – drama, intrigue, conflict and quick conflict resolution. Perhaps “Bull” will even open more minds than it will close.

Trisha Volpe is a practicing attorney, trial consultant and Emmy-award winning journalist.

References

Broda-Bahm, K. (2016). Call Bull on Media Representations of Trial Consultants. Retrieved from http://www.persuasivelitigator.com/2016/05/call-bull-on-media-representations-of-trial-consultants.html.

Hsieh, S. (2011). On murder and social media: Casey Anthony's jury consultant speaks. Retrieved from http://lawyersusaonline.com/blog/2011/07/05/on-murder-and-social-media-casey-anthony%E2%80%99s-jury-consultant-speaks/.

Kressel, N. & Kressel, D. (2004). Stack and Sway: The New Science of Jury Consulting. Westview Press.

McDermott, T. (2004). The Jury Consultants: In High Profile Cases Human Behavior Experts Run the Show. Retrieved from http://www.cbsnews.com/news/the-jury-consultants/.

McElhatton, J. (2013). Mark Cuban mocks SEC lawyers, hails feds' move to bring in hired guns. Retrieved from http://www.washingtontimes.com/news/2013/dec/9/stung-by-defeat-sec-hires-trial-consultants/.

Myers, B. & Arena, M. (2001). Trial Consultation: A New Direction in Applied Psychology. Retrieved from http://people.uncw.edu/myersb/292/readings/readings/trial%20consultation.pdf.

Stolle, D., Robbenolt, J., Wiener, R. (1996). The Perceived Fairness of the Psychologist Trial Consultant: An Empirical Investigation. Law & Psychology Review, 20, 139-177.