Feb, 1999. - CQ
Trial Consulting: The Game Isn't Over Until You
Win!
by Marshall L Hennington, Ph.D.
In the past, many attorneys have regarded trial consultants as
a luxury service. The popularity of trial consultants did not really
begin until the early 1970s when defendants such as anti-war activist
Phillip Berrigan feared they would be denied a sympathetic jury
and turned to social scientists for help. Soon corporations hired
consultants in high-stakes cases, including MCI Communications
Corporation's anti-trust suit against AT&T.
In today's litigious environment, it is becoming increasingly important
to make certain a case presentation is as effective as it can be.
Information is power, and the stakes for a trial may increase or
decrease depending on how thoroughly prepared the litigation team
is to trade punches with the other side. How does hiring a trial
consultant help? In the words of one litigator, "You do it
because you are afraid not to."
Over the past two decades, trial consulting has
evolved into common usage. Attorneys are reluctant to enter a trial without one.
It
was only after the O.J. Simpson trial that not only the legal community
but also the entire American public began to realize that attorneys
couldn't simply rely on instinct to select advantageous jurors.
At one time, it was the norm to go with a "hunch'" in
selecting jurors. Now the standard involves the use of scientific
research by trial consultants utilizing mass marketing, polling,
focus groups, demographic indicators, voir dire questionnaires,
and juror profiles to carefully screen potential jurors prior to
the actual selection process. Consultants often help attorneys
gain valuable insights into what juries will find convincing, as
well as how clients will be perceived, which often affects a decision
of whether to settle or try a case. One attorney who had once considered
trial consulting as ''witchcraft" now calls it "essential."
Not All Agree
However, some legal scholars and litigators have condemned trial
consultants for "rigging the game." They argue that juries
are supposed to be representative of the community, not handpicked
for pliability. Courts occasionally remind lawyers that their mission
in jury selection is to find people who can be fair and impartial.
This emphasis often makes some lawyers laugh because in their view
the whole trial process is one of manipulation, with attorneys
attempting to defeat each-other.
Los Angeles civil rights attorney Leo Terrell commented to the
Washington Post on September 26, 1994, that "If we are to
assume that a case is decided solely on the evidence presented,
then we are living in a theoretical world. It's the way you dress.
It's what you look like. It's your racial composition. It's how
you present the evidence. People get caught up in all the wrong
factors. You have to acknowledge that these factors exist."
Even though a potentially favorable jury panel
has been selected, the ability to mold jurors is limited. Trial consultants tend
to
be most effective in advising lawyers how to influence jurors after
they have been selected. Researchers have found that evidence presentation
and the opening and closing statements usually are more important
than jury compositions; thus, it is also incumbent upon the trial
consultant to advise lawyers how to make the most of these. Jury
selection is only five percent of the equation.
Finely packaging a case presentation,
preparing demonstrative exhibits for trial, informing attorneys
about which evidence to stress to
effectively sway jurors, even advising attorneys about how large
an award to ask for in a civil case have been utilized by trial
consultants. Like football, jury verdicts can be a "game of
inches." Having an arsenal of information at one's fingertips
is the best defense against the unexpected suddenly occurring and
watching your trial presentation unravel. In essence, the best
defense to an adverse situation in a trial is a good offense using
a consultant.
This writer recently represented a Fortune 500 company that was
a defendant in a product liability lawsuit. During jury selection
it became clear that the plaintiff attorney's strategy during jury
selection was to include as many minority jurors as possible on
the panel. He apparently assumed that minorities would be unfavorable
to the defense in a corporate civil case. During voir dire the
plaintiffs' attorney asked few questions of the jurors and appeared
to pick jurors on the basis of first impression, perhaps falsely
assuming that by having an all-minority jury panel, and by utilizing
case themes with buzz words such as "oppression" and "distrust," that
the jurors would relate to his message and render a favorable verdict
for the plaintiff.
What the plaintiff attorney failed to find out
was that most of the minority panel members generally had a favorable impression
of corporations, as many of the jurors had retired on savings they
had invested in corporations. Also, some jurors had experiences
working on assembly lines and they understood that it was not uncommon
for product malfunctions to occur.
The plaintiffs' themes were often
offensive, outdated, and seemed to alienate jurors. In the end.
a verdict favorable to the defendant
was reached. The plaintiffs' attorney may have allowed his first
impressions of the jurors to skew his questioning of all the jurors.
Allowing stereotypes about minorities can hide valuable and helpful
information.
Are Witnesses Manipulated?
Some may argue that trial consultants often strategize with
attorneys on how to manipulate witnesses' testimony, which often
leaves the opposing counsel frustrated and confused at pivotal
junctures of a trial. However, such tactics are not unethical,
and the use of them really depends on the type of action an attorney
chooses to use. One of the first things to determine about any
case is whether the retaining attorney expects the opposing counsel
to litigate the case in a "civilized
manner," or if the battle will be fought outside the parameters
of civility.
The field of trial consulting has
advanced substantially to the point where a variety of statistical
and demographic services
are provided to improve clients' chances of winning a jury trial,
or
helping clients settle on more favorable terms. Trial consultants
are often hired to identify personality types of jurors and to
assemble shadow juries during the trial, which give attorneys
insight as to how the actual jury is considering different points
in the
trial. Consultants also assist with development of case themes
and aid in tying in demonstrative evidence presented to the jurors.
Computerized
Graphics Also Help
In addition, savvy lawyers can bolster their presentations with
demonstrative evidence jurors find appealing, with the assistance
of trial consultants. New advancements such as computer animation
programs can recreate events or processes in dispute. These tools
help to sway jurors during the trial and deliberations. Further,
graphic presentations aid litigators in telling compelling stories
to jurors. These techniques can make the most highly complex
cases easier for all jurors to comprehend what, how, and why
an incident
occurred along with who should or should not be liable. Moreover,
because most cases settle before ever going to court, there is
also a high demand for competent consultants to utilize their
expertise as strategists to help attorneys negotiate favorable
settlements.
As the next millennium approaches, litigators will continue to
become aware of the value of trial consultants. Since opposing
counsel often does not reveal if they are working with a consultant,
it makes good business sense to not leave any stone unturned
while preparing a game plan or trial. Remember, "the game ain't
over until you win!"
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