Recent Jury Box Blog Entries

Subscribe to The Jury Box Blog

Monday, June 09, 2008

Pro Bono Trial Consulting: Who Knew?

I just returned from the annual meeting of the American Society of Trial Consultants (ASTC) in Chicago, (where tornadoes threatened to tear the roof off the hotel). While our organization has the sort of committees you might expect (professional visibility, membership, etc.) it also has a committee devoted to the provision of pro bono trial consulting services to indigent litigants.

While we have long kept track of those consultants willing to provide pro bono service, (so noted in members’ online profiles on the ASTC website), the committee has really started to cook over the past year. Since most attorneys don’t even know that there are trial consultants willing to work for free (or reduced rates), I thought it might be helpful to outline what this committee has been up to and what are its plans moving forward.

Largely through the efforts of Cynthia Cohen in Los Angeles and Alison Bennett in Dallas, two regional teams have been formed to assist attorneys working pro bono in those two metropolitan areas. These teams include jury consultants, litigation graphics specialists and focus group facility managers, so help is available for virtually any kind of case.

The two regional team leaders have been hard at work building connections between ASTC and the agencies that coordinate pro bono legal services in their areas. Cynthia and Alison have met with dozens of lawyers, legal aid coordinators, law professors and clinic directors over the past year. The response has been a resounding, “Wow!” as attorneys are surprised and delighted to learn that help can be available for their cases.

In the coming year, the ASTC Pro Bono Committee (of which I am now a member) will be looking to advance our visibility to the legal community. We want to make sure that those lawyers who need us know that we’re here. We plan to establish a clearinghouse for cases, located on the ASTC website, to match lawyers in need with consultants in a position to help.
Given the dramatic early success of the Dallas and Los Angeles teams, we also hope to establish pro bono teams in other regions of the country. We don’t have nearly the number of consultants in New England as they have in L.A. or Dallas, but I hope to get a Boston-based pro bono team up and running as soon as possible. Fortunately, much of a trial consultant’s work can be done at a distance, so it won’t be essential to have all team members nearby.

We also plan to assemble a comprehensive set of materials that our members can use to make presentations to lawyers groups about our pro bono initiative. So, if you think that your group would like to learn more about what trial consultants can do for you, please let us know.

This push in pro bono activity is a work in progress, but you don’t have to wait for us to get everything up and running to make use of our resources. Do you have a case that could really benefit from some trial consulting? Do you need advice about jury selection strategies? Are you struggling to put together materials to support your motions for a supplemental juror questionnaire or attorney conducted voir dire? Could you really use a professionally produced timeline to help you argue your case to the jury? Contact us now. We’ll help if we can.

You can reach the webpage of the Pro Bono Committee of the ASTC here. Or, feel free to contact me directly at .

Tuesday, June 03, 2008

Judge in Neil Entwistle trial has her head in the sand

Neil Entwistle is on trial for the murder of his wife and child. The details are quite sordid and appalling and not particularly relevant to this post.

This case has generated large-scale media attention, in Massachusetts, the rest of the US, and in England, Mr. Entwistle's home country. It is rather standard by now for the defendant in a case of this magnitude to use a trial consultant to help identify potential biased jurors. The primary concern is the saturation of the jury pool with pretrial publicity, especially that which is prejudicial to the defendant.

Massachusetts has one of the most liberal statutes with respect to the availability of public funds with which indigent defendants can hire experts. The language of the statute reflects the basic premise that if a paying defendant would reasonably hire such an expert, the indigent defendant should be able to, as well. Unfortunately, the statute is rarely interpreted as liberally as it appears on its face. So far as I know, no defendant has ever been awarded public funds to hire a jury consultant.

Judge Diane Kottmyer flatly refused requests by Entwistle's attorneys for money to pay for a trial consultant in this case. Her rationale was that it had never been done before, so she didn't have to do it now. She never addressed the actual merits of affording Entwistle this procedural protection in a case so prominent in the public eye. Judge Kottmyer assured counsel that she could handle the issue of pretrial publicity by issuing the jury proper instructions to disregard anything they might have heard, read or seen about the case in advance. Alas, the judge's assertion here is simply ignorant. Every single study that has ever been published about the effects of pretrial publicity has concluded that such limiting instructions are completely useless.

Judge Kottmyer similarly refused motions for attorney conducted vior dire, sequestered voir dire, a change of venue and even an extensive supplemental juror questionnaire. After allowing the lawyers to submit some questions for a questionnaire, the judge decided that she would write her own, allowing no input from either counsel.

Judge Kottmyer's mindset is a relic of a time when we didn't actually know anything about jury behavior. She believes that the best way to learn if a potential juror might be biased is to ask her, "Will you be biased?" Research into the effects of pretrial publicity show that those would-be jurors who admit to having been exposed to pre-trial publicity, but assert that they can be fair nonetheless, are actually MORE LIKELY to be biased against the defendant than those who admitted that they might have trouble being completely objective. That is, the question sorts the potential jurors IN EXACTLY THE OPPOSITE MANNER AS DESIRED. By insisting on employing antiquated procedures for jury selection, Judge Kottmyer has pretty much guaranteed that Mr. Entwistle will not receive a fair trial.

Many people will be unsympathetic to these objections, on the grounds that Mr. Entwistle is almost certainly guilty of killing his wife and daughter. Remember, however, that the question of whether he killed them is only the first facing the jury. They mush then make difficult judgments about his state of mind at the time, his level of premeditation, and whether any mercy would be appropriate in his circumstances. These factors will translate into a particular verdict, be it first degree murder, second degree murder, voluntary manslaughter or involuntary manslaughter. The jury in this case actually wields an enormous amount of discretion and Judge Kottmyer does a great disservice to the Commonwealth by placing this responsibility in the hands of jurors predisposed to view Mr. Entwistle most harshly.

I don't know what the correct verdict is in this case. I only know that I don't have much confidence in a jury so selected to find it.

Fantasy Baseball Aficionados Hit a Home Run at U.S. Supreme Court

OK. I'll admit it. I play Rotisserie Baseball. I have for more than a dozen years. My friends and I play for small stakes. It's all about pride. For those who are uninitiated, Fantasy Sports (of which Rotisserie Baseball is an example) involve participants assembling portfolios of athletes from real teams, either through a draft or auction (with salary cap). Various stats are assembled for each player and a participant's portfolio is evaluated in terms of how well his players perform.

In the olden days, it was extremely tedious to keep track of a league's standings, because one had to assemble and calculate the stats by hand, usually from USA Today or another reliable publication. The internet changed all that. Services sprung up all over the place to calculate stats for leagues at a relatively modest cost. For instance, our league pays about $10 per team for a year's worth of stats. The websites are truly remarkable. The inputting of rosters and transactions is simple and the array of stats one can peruse and customize is staggering.

This has become big business. So big, in fact, that Major League Baseball decided they didn't want anyone to be in this business without cutting them in on the profits. That's right, MLB sued on the grounds that the league held exclusive rights not only to their players, merchandise and broadcasts, but also their players' statistics, names and likenesses, as well. So, even though any guy with a calculator could comb through the paper and assemble his own stats, he wasn't allowed to pay someone to do it for him. At least, that was the position staked out by Major League Baseball.

A bunch of stats companies caved and started paying a licensing fee to MLB. A few, however, refused and took MLB to court. Judges at all levels refused to grant ownership of stats to MLB, contending that they were squarely in the public domain. Basically, you can't own history. This was clearly the right call, and this week, the Supreme Court of the United States refused to hear the case, leaving the appeals court ruling intact. MLB lost and all us nerdy fantasy sports geeks can rejoice.

Here's why I think this was a no-brainer. It's basically a slippery slope argument.

If a professional sports league were to own the stats of its games, it would, essentially, own also the exclusive use of the results of such games. As such, sports books would immediately become illegal, without paying a franchising fee. A casino could not collect or pay on a wager which relied on the outcome of a sporting event. A radio or television station could not report the results of the local teams' games because they would not own the rights to those results. Similarly, newspapers and website would have no right to publish results.

A bar could not host a victory party because it would be predicated on a victory to which it had no rights.

It would be very difficult, legally, to limit the results to sporting events. Could Angelina Jolie prevent a newspaper from publishing reports of her most recent adoption without paying her a licensing fee? Could a movie studio preclude a theater chain from reporting box office receipts for the studio's films?

Thank goodness this lawsuit is history! (Just don't try reporting on it without paying a licensing fee to the U.S. Supreme Court).