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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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