Jury consultants get ready for your close-up.
On Tuesday night CBS debuted “Bull,” a new series centering on Dr. Jason Bull—a jury consultant loosely based on the early career of Phil “Dr. Phil” McGraw. McGraw, who prior to his TV career famously helped Oprah Winfrey beat back a legal challenge from Texas cattle ranchers, is a co-writer on the show.
Law.com reached out to one of McGraw’s former protégés, Tara Trask, who now runs a consulting firm of her own based in Dallas and San Francisco. Trask, who bears a bit of a resemblance to Dr. Bull’s blonde sidekick at the fictional Trial Analysis Corp., talked about what “Bull” gets right about her business, what it gets (terribly) wrong, and her time working with the man now known as Dr. Phil.
Q: So this show is reported to be loosely based on Dr. Phil’s early career. My question for you is: How loosely?
A: So, that’s really funny. He and Gary Dobbs founded Courtroom Sciences in [the late 1980s] in Dallas and I started working there in 1994 and I was there from 1994 to 2000. He was a trial consultant and as you know from the Oprah case he was a very successful trial consultant. I stay in touch with Phil today. Because I know Phil incredibly well, it is hilarious the pieces of him that are sprinkled through the show—literally the exact things he used to say.
Q: Like what?
A: First of all the use of the term “mirror jury” instead of the term “shadow jury.” For all I know Courtroom Sciences still uses the term “mirror jury.”
Also, Phil is a very intimidating figure, certainly in person. Part of the reason is because he’s incredibly charismatic. He’s also physically imposing because he’s a big guy. We ran around a bit more skittish and a bit more worried about getting in trouble than [the employees] do on the show.
Q: What else did you recognize as coming from Phil?
A: When he’s working with the witness and he says, “It’s not enough to tell the truth, you have to tell the truth effectively.” That is a 100 percent Phil-ism there. I’ve heard that from him 100 [of] times. And he’s right. I say that now. I say that to witnesses, because it’s true.
At the outset of the show the blonde sidekick says that Dr. Bull doesn’t like the term “jury consultant.” I think that’s absolutely true of Phil and I think that’s true of a lot of us. A lot of us don’t consider ourselves jury consultants per se. We consider ourselves litigation strategists, trial strategists. And that’s one thing about the show that’s very interesting. As you see in the show, Dr. Bull has a very big impact on the entire team and the entire case, right down to directly communicating with the client and cutting the lawyer out of the case. Now, I haven’t seen that happen in my cases, but I do believe that most experienced trial consultants have a serious amount of impact on the matters they work on. We’re not vendors. I’m not out there just putting some jurors in a focus facility and throwing some catering in there for you. That’s not what I do. I’m involved from start to finish, especially for my long-term clients. I’m bringing a different perspective.
I think the part of the show [where Dr. Bull took over trial strategy from the lawyers] is a little bit overplayed, but then again Phil when he was practicing … Phil is brilliant. He was an incredible trial consultant. Literally to this day he is one of [the] smartest people that I’ve ever met. And so to see what he’s doing on the “Dr. Phil” show, it isn’t exactly as intellectually stimulating. … It’s a little bit of a step down from working on a high-stakes intellectual property case or a white-collar securities case or something like that. Because he was so smart and because he brought a different perspective to all the teams that he worked on, he had a tremendous amount of sway with the team. That was something I watched, I learned and I have a pretty significant amount of sway on a lot of teams that I’m on, too.
Q: One key aspect of the show is the use of mirror juries—folks who demographically match the makeup of the actual jurors who are hired to watch proceedings and deliberate in front of the team of consultants? How common is that practice and how true to life is the show’s depiction of it?
A: We generally call them “shadow juries.” In significant, high dollar cases they are common. I had a case in Judge Payne’s courtroom in the Eastern District of Texas. He’s downstairs from Judge Gilstrap and his courtroom is the tiniest courtroom in the world. He’s got two pews. I was in a case in that court in 2012 where we had two shadow juries. Each side had one. It was like a clown car. It was crazy. I personally believe that shadow juries are underutilized. The one real bone I would pick with the show [is that] we look at trends. We don’t sit there and say, “This one juror is going to do this. We need to get this lady.” We don’t do that. Ever. That strains all reality to think that you have any idea what one person is going to do. This whole idea that there’s knowledge on a juror-by-juror basis doesn’t make sense.
We do match jurors demographically. It doesn’t have to be exact. I’m not necessarily trying to match juror-for-juror.
Q: Do jurors pick up on this?
A: Sometimes they do. In federal court we don’t get to talk to jurors that often. I myself personally facilitated about 30 shadow juries back when I was a younger consultant and in talking with some jurors after the fact, they realized it. People are pretty hip these days to the fact that there are trial consultants. When the O.J. [Simpson] trial happened, that’s when the general public became aware of jury consultants. People are just not surprised about it.
Q: In the first episode of “Bull,” the consultants face skepticism from the hotshot defense attorney? Is that something you confront?
A: It’s kind of funny, because that’s the one place in the show [where Phil as a co-writer] was sort of showing his distance from the field. It used to be that way. It’s not that way any more. At least I run across it very, very rarely.
Q: What’s the least realistic or most ridiculous thing you saw in regards to the actual art and practice of what you do?
A: The illegal stuff. We don’t bug anybody. (Laughs.) That’s crazy. You’re going to bug lead counsel’s watch? Never. Ever.
Q: What about the jury consultant as an investigator who cracks the case and catches the bad guy?
A: Right. That he just shows up at the end with the cops behind him. That doesn’t make any sense. Lawyers have been depicted all sorts of ways and doctors and cops. I’m sure that the police are sitting around feeling the same way, thinking, “We don’t have all this stuff at our disposal to solve crimes.” I have a mobile courtroom. It’s pretty state-of-the-art. It’s nothing like that fancy schmancy thing they showed on the show.
Frankly I thought the show was great. It was fluff entertainment, period. It doesn’t accurately depict what we do. A lot of people in my field feel very freaked out about this. I think it’s great. And I think it provides us with an opportunity to talk about what we really do. We don’t necessarily do what the consultants do on the show, but we don’t not do it either. I’m very involved with witnesses, and trial strategy and helping decide who should [be] put on [as] a witness. When Dr. Bull tells the lead lawyer, “Hey, the jury doesn’t like you. Let your female associate put the lead witness on” … I’ve had that conversation before with counsel. Sometimes they can see it as well as we can.
Q: Was the case in Texas for Oprah as transformational for you as it appears to have been for Dr. Phil?
A: I was a baby at the time. I was a young consultant. It’s obviously been good for me to have on my resume. I loved working with Oprah. That was a real treat. One of my favorite voir dire questions is, “Who is the public figure living or dead that you most admire and why?” That is a great question to get at who somebody is because you get a huge range of answers. You get the president. You get Martin Luther King. Oprah is way up there.