Jury Consulting in Criminal Cases
Traditionally, only a select few criminal defendants have employed jury consultants. Those who have typically fall into three distinct categories.
1) Really rich people and celebrities (who are usually really rich). These folks can afford to hire the most expensive lawyers and also pay for a variety of trial support services. If ever you needed proof that jury consulting is valuable, pay close attention to the fact that every criminal defendant who can pay for it does pay for it.
2) Accused murderers facing the death penalty. Because judges receognize that the stakes are very high in capital cases, as well as the particular stress on jury selection created by the death qualification process, public funds are most likely to be awarded for jury consulting services in these cases. The presumption is that the jury consultant will be used exclusively for jury selection (now that change of venue motions have become essentially hopeless).
3) White collar criminal defendants. OK. This is really a subset of the really rich people, but the issues are different enough to warrant its own category. Unlike the washed-up actor who strangles his girlfriend, the corporate accountant accused of cooking the books is facing a trial that feels somewhat more like a civil trial. The case revolves around money and common business practices. The victims are often also rich and generally no violence was involved. Defendants in these cases tend to employ jury consultants for a variety of services, from thematic development to witness prep to pretrial jury research to jury selection.
What about the Little Guy?
But what about the people who could use our help the most? What about the indigent criminal defendant with an overworked, underpaid and inexperienced and/or jaded public defender? Do these folks use jury consulting services? Well, the answer used to be a resounding "no" but the landscape is changing.
Despite the wording of the Massachusetts statute regarding the allocation of funds for trial support services, which authorizes funding whenever a similarly situated non-indigent defendant would be willing to pay for the service, the Massachusetts courts have been loathe to even consider paying for jury consulting services. Part of this reluctance stems from the way in which such funds are allocated in Massachusetts. Most public defenders are actually "bar advocates," private attorneys who sign up to get assigned cases involving indigent criminal defendants. The state agency that oversees this process, the Committee for Public Counsel Services (CPCS) has a budget, but no authority to spend any of it on trial services. Each attorney must petition the court for the authorization to hire a psychologist, investigator or expert witness. Given the very modest budget for CPCS, combined with the fact that no judge knows how other judges are spending the money, the judiciary as a whole tends to be very stingy for all but obviously necessary expenses.
As I reported in this blog a few years ago, the attorneys for Neil Entwistle, whose case received non-stop pretrial publicity for months leading up to trial, petitioned the court for $1,000 for help from a jury consultant in crafting voir dire questions. The judge denied the request without argument or comment. The default position is clearly, "No dice!"
The good news is that the dam is starting to crack. Over the past few years, attorneys have successfully petitioned the court for small sums of money to retain my services. I lowered my hourly rate very dramatically in order to increase the likelihood that such petitions might have a chance. Recently, I accepted a position with TrialGraphix, a large, national litigation consulting firm. I could no longer work the CPCS cases for peanuts. While management at TrialGraphix was willing to let me work these criminal cases at a substantial discount, a court was going to have to authorize real money to pay for my services.
Recently, I was approached by an attorney concerning a criminal matter for an indigent defendant. I explained that he would have to submit his motion with my new hourly rate. In addition, the case is very complicated and the attorney needed help with several jury-related matters. So, he was going to have to ask for a pretty hefty sum -- several times more than the court had ever awarded me before. We held our breath -- and the judge said "OK."
Perhaps the judiciary is finally becoming enlightened with respect to the difficulties confronted by those facing jury trials for serious criminal charges. Maybe the judge wanted to cover himself against a possible appeal. Maybe I have now developed enough of a track record that judges take these motions seriously. Whatever the reason, I can now say to anyone representing an indigent criminal defendant in Massachusetts, "Don't assume that you can't hire a jury consultant to help you." The door has been opened; it's time to walk through it.
What the Future May Hold
I am less familiar with how funds are allocated for jury consulting services in other states. I know that most states have real public defender offices, with discretionary (although small) budgets. In such a system, court approval is not required to pay for support services. Massachusetts is moving in this direction, which might provide further momentum for these efforts.
I have worked for the Federal Public Defenders Office in Boston and they only require internal authorization to pay for my services. I bill them just like a regular law firm. I can only hope that the CPCS system will evolve into something closer to this model.
A criminal defense attorney whose motion for funds for jury consulting services has been denied need not despair. I have written in this blog many times about the Pro Bono Initiative of the American Society of Trial Consultants (ASTC). I remain the Chair of our Pro Bono Committee and we are more committed than ever to making jury consulting services available to those representing clients of limited means.
Earlier this month, I connected a non-profit legal aid organization in Chicago with a ASTC member consultant to help with thematic development and jury selection. When it was determined that they needed help with graphics and video editing, we found another ASTC member to help with that. So, if you need help, please don't hesitate to contact me or visit the Pro Bono Committee's homepage.
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Showing posts with label astc. Show all posts
Showing posts with label astc. Show all posts
Wednesday, August 29, 2012
Wednesday, March 17, 2010
Heat, Humidity and Trial Consulting: What Services Lawyers Use Where
What we've learned so far
To review, I posted a short survey about trial and graphics consultant usage by trial attorneys. I encourage those who have not yet taken the survey to check it out here. In my previous two posts (Post 1, Post 2), I reviewed some general trends in the data. While the number of respondents (42) precludes any concrete conclusions, the data are at least suggestive.
More experienced attorneys were more likely to report having used trial consulting and graphics consulting services at some point in their careers. This is not surprising since a lawyer who has tried a large number of cases is likely to have run across at least one along the way that warranted the hiring of a jury expert or graphics professional. In addition, litigants in high-stakes cases, where the hiring of outside consultants seems most likely, typically choose to place their cases in the hands of experienced litigators. Similarly, large firms generally assign their largest cases to their most experienced lawyers.
The second major finding is that civil defense attorneys are more likely to hire trial and graphics consultants than are their colleagues who handle plaintiffs' cases. Many of the criminal defense attorneys who participated in the survey reported having used a trial consultant, but this result is likely skewed by the large number of them who had taken advantage of my Pro Bono services. Many fewer of them reported having employed a graphics consultant.
Who Wants What When?
Note the frequent usage of both case evaluation and jury selection services by criminal defense attorneys. This is, once again, the product of this category of respondents being dominated by attorneys who have received pro bono assistance from me, which has taken the form of case evaluations and jury selection help. It remains an open question whether these are the services most often employed by criminal defense attorneys more generally.
Where is all the action?
When breaking the sample into regions, things got a bit dicey. With only a few dozen lawyers completing the survey, it was simply not possible to sensibly explore which regions' litigators used precisely which services. I did look into using only civil defense attorneys to investigate regional differences, but what few trends emerged mirrored those present in the full sample. I illustrate below trial and graphic consultant usage by region, without attention paid to specific services.
In considering these graphs, it is important to keep in mind the mix of attorneys represented in each region. The West, Mideast and South regions are comprised of 1/2 to 2/3 civil defense attorneys. The New England region sample is dominated by criminal defense attorneys and only contains two civil defense attorneys. The Midwest sample is entirely civl defense attorneys.
With all these caveats, are there any comparisons to be made, at all? Well, it is instructive to look at the responses of attorneys in the Mideast and South regions. The sample sizes are comparable, as are the distributions across legal specialties. Note, however, how much more likely a lawyer from the Mideast region is to report that she had never used either a trial or graphics consultant. There is one young lawyer from New York who reported extremely high usage rates for both trial and graphics services, as well as a strange mix of case types. If one drops this observation as unreliable, the differences between the two regions become even more pronounced.
Anecdotally, I know Florida, Georgia and Texas to be hotbeds of trial consultant activity. There are, however, several trial consulting firms with offices in the tri-state region (near New York City). As such, I am a bit surprised by these dramatic differences.
What next?
I designed this little survey to gather some preliminary information and motivate further study. I think that it has served to accomplish that task. I know that the Research Committee of the American Society of Trial Consultants has plans to conduct a broader and deeper study of these issues in the near future. To that end, if you have suggestions for questions to ask, lawyers groups to approach for participation or groups that would be interested in the results, please let me know. I will forward along all correspondence to the Research Committee.
While a data dude at heart, I know the value of qualitative research, too. So, if you have any questions about this survey or comments about my analysis, please do get in touch. Tell me your story. Share your concerns.
In the meantime, I will leave the survey open for further respondents. If I get enough additional data, I'll post an update here on my blog.
To those of you who took the time to complete the survey, "Thanks very much for your help."
-Edward
To review, I posted a short survey about trial and graphics consultant usage by trial attorneys. I encourage those who have not yet taken the survey to check it out here. In my previous two posts (Post 1, Post 2), I reviewed some general trends in the data. While the number of respondents (42) precludes any concrete conclusions, the data are at least suggestive.
More experienced attorneys were more likely to report having used trial consulting and graphics consulting services at some point in their careers. This is not surprising since a lawyer who has tried a large number of cases is likely to have run across at least one along the way that warranted the hiring of a jury expert or graphics professional. In addition, litigants in high-stakes cases, where the hiring of outside consultants seems most likely, typically choose to place their cases in the hands of experienced litigators. Similarly, large firms generally assign their largest cases to their most experienced lawyers.
The second major finding is that civil defense attorneys are more likely to hire trial and graphics consultants than are their colleagues who handle plaintiffs' cases. Many of the criminal defense attorneys who participated in the survey reported having used a trial consultant, but this result is likely skewed by the large number of them who had taken advantage of my Pro Bono services. Many fewer of them reported having employed a graphics consultant.
Who Wants What When?
I was not surprised that civil defense attorneys were the primary consumers of trial consulting services. They typically have an insurance company bankrolling litigation and are more likely to have corporate clients. So, the deep-pocket, repeat-player litigants tend to be on the defense side of the ledger.
I also expected to find that civil defense attorneys used a different mix of trial consulting services than did their plaintiff counterparts. This was not born out by the data. Consider the following graph. You can click on any graph to view it much larger.
Because civil defense attorneys make up such a large fraction of my sample, these absolute numbers are a bit deceiving. To correct for this, I converted these data into percentage of the relevant sample. The reconfigured graph is below.
Those plaintiff attorneys who reported using trial consulting services were just as likely to report running mock trials (a big ticket item) as were civil defense attorneys. One possibility is that once the stakes cross a critical threshold, a plaintiff attorney thinks just like a defense lawyer. That is, there is an "all or nothing" mentality to trial consultant usage. The other possibility is that many plaintiffs' attorneys are unaware that trial consultants provide a suite of inexpensive services, as well as conducting large pre-trial research projects. That is, a plaintiff attorney might know that she can hire a consultant to run a mock trial for $30,000, but she might not know that she can hire one to help draft voir dire questions for $1,000. This is a question for further study.
Note the frequent usage of both case evaluation and jury selection services by criminal defense attorneys. This is, once again, the product of this category of respondents being dominated by attorneys who have received pro bono assistance from me, which has taken the form of case evaluations and jury selection help. It remains an open question whether these are the services most often employed by criminal defense attorneys more generally.
Where is all the action?
When breaking the sample into regions, things got a bit dicey. With only a few dozen lawyers completing the survey, it was simply not possible to sensibly explore which regions' litigators used precisely which services. I did look into using only civil defense attorneys to investigate regional differences, but what few trends emerged mirrored those present in the full sample. I illustrate below trial and graphic consultant usage by region, without attention paid to specific services.
In considering these graphs, it is important to keep in mind the mix of attorneys represented in each region. The West, Mideast and South regions are comprised of 1/2 to 2/3 civil defense attorneys. The New England region sample is dominated by criminal defense attorneys and only contains two civil defense attorneys. The Midwest sample is entirely civl defense attorneys.
With all these caveats, are there any comparisons to be made, at all? Well, it is instructive to look at the responses of attorneys in the Mideast and South regions. The sample sizes are comparable, as are the distributions across legal specialties. Note, however, how much more likely a lawyer from the Mideast region is to report that she had never used either a trial or graphics consultant. There is one young lawyer from New York who reported extremely high usage rates for both trial and graphics services, as well as a strange mix of case types. If one drops this observation as unreliable, the differences between the two regions become even more pronounced.
Anecdotally, I know Florida, Georgia and Texas to be hotbeds of trial consultant activity. There are, however, several trial consulting firms with offices in the tri-state region (near New York City). As such, I am a bit surprised by these dramatic differences.
What next?
I designed this little survey to gather some preliminary information and motivate further study. I think that it has served to accomplish that task. I know that the Research Committee of the American Society of Trial Consultants has plans to conduct a broader and deeper study of these issues in the near future. To that end, if you have suggestions for questions to ask, lawyers groups to approach for participation or groups that would be interested in the results, please let me know. I will forward along all correspondence to the Research Committee.
While a data dude at heart, I know the value of qualitative research, too. So, if you have any questions about this survey or comments about my analysis, please do get in touch. Tell me your story. Share your concerns.
In the meantime, I will leave the survey open for further respondents. If I get enough additional data, I'll post an update here on my blog.
To those of you who took the time to complete the survey, "Thanks very much for your help."
-Edward
Tuesday, September 29, 2009
Identifying Potential Leaders Critical to Jury Selection
Leaders become forepersons and forepersons control deliberations
In the most recent issue of The Jury Expert, the excellent online journal of jury behavior, published by the American Society of Trial Consultants, Barbara Bushell has contributed a very nice piece on how "leaders" affect jury deliberations and verdict choice.
Barbara begins by identifying some of the common characteristics of jury leaders (high status jobs, more formal attire, perceived expertise, etc.) and then discusses the kinds of behaviors engaged in by such people that often get them chosen as jury forepersons. I won't spend much time on these points here, but I recommend that you read the article. Among other things, Barbara reviews (and cites) some of the important research articles from which we have learned so much about leadership on juries.
What I find particularly salient is how leaders can exercise control over jury deliberations, especially when handed the title of "foreperson." Barbara mentions several of the levers at the foreperson's disposal. A foreperson controls the floor, determining who can speak when. She calls for votes when she thinks the time is most appropriate -- perhaps when she suspects she has a majority of support. The foreperson often controls whether the deliberation will be evidence-driven or verdict-driven (something I have discussed previously in The Jury Box), with all of the attending consequences of the two modes. Barbara also cites several studies confirming the influence of a foreperson's private evaluation of compensatory damages on the final award chosen by the jury.
Not All Leaders are Created Equal
Barbara goes on to make a distinction between instrumental leaders and emotional leaders, something I hadn't really thought much about before. An instrumental leader is someone who is respected and/or looked up to for a particular skill or attribute regarded as important to the case. It might be someone who takes thorough notes, or someone who has served on several juries before. Of course, jurors with case-specific expertise are often perceived as instrumental leaders.
An emotional leader, however, is someone who helps the jurors get through the process. She might be the queen of positive reinforcement, or the first to recommend a compromise that everyone can live with. Such a leader is seen as a positive influence on the deliberations, but she may not be especially knowledgeable or astute.
I think this distinction between leadership types can be quite important. An instrumental leader is more likely to have an agenda. Her influence is likely to be unidirectional. On the other hand, an emotional leader is more likely to lead the jury towards moderation.
A couple more points about leaders
I would recommend that all of you read Barbara's article. You might even find yourself consulting some of the empirical studies directly. I want to take just a little time here to add a couple of items not covered in the Jury Expert piece.
The first is that leaders (especially instrumental ones) are also likely to be unyielding in their opinions about the correct verdict. As I have written about in a couple of my recent posts, juries rarely reach unanimous consensus, even in those cases where they render unanimous verdicts. This means that some jurors have compromised their true opinions about the case to vote with everyone else (conforming dissenters). The folks most likely to be leaders are not going to be those vote-switching jurors. This means that it is especially important during jury selection to figure out not only whether a prospective juror is likely to perceive your case sympathetically, but also whether she is a stick-to-her-guns leader type or a wishy-washy follower type. You have a limited number of peremptory challenges. Your case can probably survive a non-supporter who doesn't make waves. Save your challenges for the obvious leaders, whenever you are concerned about which way they will lead.
My final point has to do with the methods by which juries vote. The jury foreperson will almost certainly control this procedural item. Since a jury is not instructed on how to take votes, the foreperson really is free to conduct voting however she pleases. Will the foreperson call for a secret ballot? Perhaps she'll go around the table. Maybe she's left-handed and will go around the table in the other direction! A strong-willed foreperson might suggest a verdict and challenge anyone to disagree (equivalent to calling for unanimous consent). I have written previously about the strategic consequences of these various types of jury voting. Adding this concern to the others raised by Barbara Bushell in her article, it really is critical that likely leaders on the jury be on your side of the ledger.
In the most recent issue of The Jury Expert, the excellent online journal of jury behavior, published by the American Society of Trial Consultants, Barbara Bushell has contributed a very nice piece on how "leaders" affect jury deliberations and verdict choice.
Barbara begins by identifying some of the common characteristics of jury leaders (high status jobs, more formal attire, perceived expertise, etc.) and then discusses the kinds of behaviors engaged in by such people that often get them chosen as jury forepersons. I won't spend much time on these points here, but I recommend that you read the article. Among other things, Barbara reviews (and cites) some of the important research articles from which we have learned so much about leadership on juries.
What I find particularly salient is how leaders can exercise control over jury deliberations, especially when handed the title of "foreperson." Barbara mentions several of the levers at the foreperson's disposal. A foreperson controls the floor, determining who can speak when. She calls for votes when she thinks the time is most appropriate -- perhaps when she suspects she has a majority of support. The foreperson often controls whether the deliberation will be evidence-driven or verdict-driven (something I have discussed previously in The Jury Box), with all of the attending consequences of the two modes. Barbara also cites several studies confirming the influence of a foreperson's private evaluation of compensatory damages on the final award chosen by the jury.
Not All Leaders are Created Equal
Barbara goes on to make a distinction between instrumental leaders and emotional leaders, something I hadn't really thought much about before. An instrumental leader is someone who is respected and/or looked up to for a particular skill or attribute regarded as important to the case. It might be someone who takes thorough notes, or someone who has served on several juries before. Of course, jurors with case-specific expertise are often perceived as instrumental leaders.
An emotional leader, however, is someone who helps the jurors get through the process. She might be the queen of positive reinforcement, or the first to recommend a compromise that everyone can live with. Such a leader is seen as a positive influence on the deliberations, but she may not be especially knowledgeable or astute.
I think this distinction between leadership types can be quite important. An instrumental leader is more likely to have an agenda. Her influence is likely to be unidirectional. On the other hand, an emotional leader is more likely to lead the jury towards moderation.
A couple more points about leaders
I would recommend that all of you read Barbara's article. You might even find yourself consulting some of the empirical studies directly. I want to take just a little time here to add a couple of items not covered in the Jury Expert piece.
The first is that leaders (especially instrumental ones) are also likely to be unyielding in their opinions about the correct verdict. As I have written about in a couple of my recent posts, juries rarely reach unanimous consensus, even in those cases where they render unanimous verdicts. This means that some jurors have compromised their true opinions about the case to vote with everyone else (conforming dissenters). The folks most likely to be leaders are not going to be those vote-switching jurors. This means that it is especially important during jury selection to figure out not only whether a prospective juror is likely to perceive your case sympathetically, but also whether she is a stick-to-her-guns leader type or a wishy-washy follower type. You have a limited number of peremptory challenges. Your case can probably survive a non-supporter who doesn't make waves. Save your challenges for the obvious leaders, whenever you are concerned about which way they will lead.
My final point has to do with the methods by which juries vote. The jury foreperson will almost certainly control this procedural item. Since a jury is not instructed on how to take votes, the foreperson really is free to conduct voting however she pleases. Will the foreperson call for a secret ballot? Perhaps she'll go around the table. Maybe she's left-handed and will go around the table in the other direction! A strong-willed foreperson might suggest a verdict and challenge anyone to disagree (equivalent to calling for unanimous consent). I have written previously about the strategic consequences of these various types of jury voting. Adding this concern to the others raised by Barbara Bushell in her article, it really is critical that likely leaders on the jury be on your side of the ledger.
Saturday, June 06, 2009
The Connection between Emotional Hotspots and Lying
As promised, I write today about the second workshop conducted by David Matsumoto at the American Society of Trial Consulting Conference. While the Thursday afternoon session on reading facial expressions (and "microexpressions") lasted three hours (please see previous post), the session on lie detection was only one hour long. So, he had a lot to cover in a short span of time. To his credit, David is an excellent public speaker. He's funny, articulate, clear and responsive to questions.
Most of the session was devoted to understanding, identifying and recognizing emotional "hotspots." A hotspot occurs when subconscious, emotional cognition runs contrary to conscious, logical cognition. Such occurrences put a lot of pressure on one's brain, making it difficult to focus and control. Imperfect control results in emotional "leakage." A person who is trained to detect microexpressions can catch such leakage as it happens.
For example, a candidate can say something nice about his opponent, but he crinkles his nose for just a split second. The expression of disgust has leaked out. The beauty pageant runner-up allows a one-sided look of contempt to cross her face for a millisecond before she successfully plasters a big, fake smile back on her face.
There are gestural cues to look for, as well. For instance, David showed the video of Alex Rodriguez answering a question from Katy Couric about the use of performance-enhancing drugs. He answers "no" very definitively -- while nodding his head up and down at the same time.
David was very careful to point out that a hotspot, with associated emotional leakage, is only a sign that there is some disconnect between the speaker's words and his emotions. Lying is only one possible explanation for such a disconnect. Leakage can also be the result of cognitive dissonance, ambivalence or extreme uncertainty.
So, for us consultants, the key is to identify hotspots. That suggests that lying might be taking place. Additional investigation and/or interrogation is necessary to tease out what is causing the emotional disconnect.
So, what should I do now with my cursory training and heightened awareness of emotional leakage and hotspots? Well, I'm not quite ready to market myself as an emotional cue expert, who can help lawyers identify lying jurors or witnesses with precision. That said, I will certainly look for microexpressions when reviewing footage from focus group sessions. I will keep an eye out for microexpressions from a witness I am helping to prepare. An obvious hotspot can help me identify a line of inquiry that might be tricky for the witness.
I am curious to see how useful this heightened sensitivity to facial expressions might be moving forward. Please feel free to contact me if you'd like to chat about my experience with this program.
On Monday, I'll file a new post with some additional observations, lessons and stories from the conference. Tomorrow, it's golf at East Lake! Fore!!!!!
Most of the session was devoted to understanding, identifying and recognizing emotional "hotspots." A hotspot occurs when subconscious, emotional cognition runs contrary to conscious, logical cognition. Such occurrences put a lot of pressure on one's brain, making it difficult to focus and control. Imperfect control results in emotional "leakage." A person who is trained to detect microexpressions can catch such leakage as it happens.
For example, a candidate can say something nice about his opponent, but he crinkles his nose for just a split second. The expression of disgust has leaked out. The beauty pageant runner-up allows a one-sided look of contempt to cross her face for a millisecond before she successfully plasters a big, fake smile back on her face.
There are gestural cues to look for, as well. For instance, David showed the video of Alex Rodriguez answering a question from Katy Couric about the use of performance-enhancing drugs. He answers "no" very definitively -- while nodding his head up and down at the same time.
David was very careful to point out that a hotspot, with associated emotional leakage, is only a sign that there is some disconnect between the speaker's words and his emotions. Lying is only one possible explanation for such a disconnect. Leakage can also be the result of cognitive dissonance, ambivalence or extreme uncertainty.
So, for us consultants, the key is to identify hotspots. That suggests that lying might be taking place. Additional investigation and/or interrogation is necessary to tease out what is causing the emotional disconnect.
So, what should I do now with my cursory training and heightened awareness of emotional leakage and hotspots? Well, I'm not quite ready to market myself as an emotional cue expert, who can help lawyers identify lying jurors or witnesses with precision. That said, I will certainly look for microexpressions when reviewing footage from focus group sessions. I will keep an eye out for microexpressions from a witness I am helping to prepare. An obvious hotspot can help me identify a line of inquiry that might be tricky for the witness.
I am curious to see how useful this heightened sensitivity to facial expressions might be moving forward. Please feel free to contact me if you'd like to chat about my experience with this program.
On Monday, I'll file a new post with some additional observations, lessons and stories from the conference. Tomorrow, it's golf at East Lake! Fore!!!!!
Tuesday, April 28, 2009
Jury Selection Tricky Guessing Game in MA criminal trials
On Saturday, April 25, I participated in a training session for Massachusetts Bar Advocates, sponsored by the Middlesex Defense Attorneys, Inc. First, let me thank Maryellen Cuthbert for the invitation and for organizing a very interesting program. Diane Levesque and I were the trial consultants charged with introducing the assembled throng to the concepts behind effective supplemental juror questionnaires and attorney conducted voir dire.
The first thing to note is how far in the Dark Ages is Massachusetts when it comes to adopting "best practices" in jury selection. I used the phrase "repressed Puritans" during my remarks, which might not have sat well with everyone. There is just no getting around that Massachusetts is a VERY conservative legal culture.
I put up a slide identifying several dimensions of jury selection procedures, with one column for the "restrictive procedure" and one column for the "expansive procedure." Massachusetts fell in the "restrictive" category FOR EVERY SINGLE DIMENSION. So, the bad news is that jury selection in Massachusetts is about as big a low-information crap shoot as there is going. The good news is that we have nowhere to go but up!
There were approximately 110 attorneys in attendance. I asked how many of them had ever used a trial consultant in any of their cases. (Remember now that most of these folks also handle civil cases). NOT A SINGLE HAND WENT UP. That's right. No one had ever used a trial consultant. So much for the quote, attributed to an attorney in Atlanta more than 10 years ago, that to go to trial without a jury consultant would "border on legal malpractice."
Many of the attorneys, some of whom had decades of trial experience, were very pessimistic about the willingness of Massachusetts judges to open up jury selection, at all. Maryellen had warned me to expect this response. She believes -- rightly so, I think -- that the criminal defense bar must make a concerted effort to change the status quo. The mindsets of Massachusetts judges will only begin to change if all the Bar Advocates start asking for the same procedural accommodations, and offering the same arguments in favor of those accommodations. So, one of my charges was to provide for the attendees a list of advantages to using supplemental juror questionnaires and attorney-conducted voir dire. This list is not targeted at the lawyers alone, but also at the judges whom they must convince to "loosen things up." That is, I tried to provide strategic, practical and legal arguments for employing less restrictive procedures.
To be fair, I have been at several local events at which judges have expressed a willingness to allow attorney conducted voir dire, but they always lament that no one ever asks for it! Hopefully, armed with some of the information and advice Diane and I offered on Saturday, some of these attorneys will get more involved in jury selection.
I have attached my presentation slides below. For articles I have written on supplemental juror questionnaires and voir dire, please follow these links. SJQ article. Voir dire article.
The first thing to note is how far in the Dark Ages is Massachusetts when it comes to adopting "best practices" in jury selection. I used the phrase "repressed Puritans" during my remarks, which might not have sat well with everyone. There is just no getting around that Massachusetts is a VERY conservative legal culture.
I put up a slide identifying several dimensions of jury selection procedures, with one column for the "restrictive procedure" and one column for the "expansive procedure." Massachusetts fell in the "restrictive" category FOR EVERY SINGLE DIMENSION. So, the bad news is that jury selection in Massachusetts is about as big a low-information crap shoot as there is going. The good news is that we have nowhere to go but up!
There were approximately 110 attorneys in attendance. I asked how many of them had ever used a trial consultant in any of their cases. (Remember now that most of these folks also handle civil cases). NOT A SINGLE HAND WENT UP. That's right. No one had ever used a trial consultant. So much for the quote, attributed to an attorney in Atlanta more than 10 years ago, that to go to trial without a jury consultant would "border on legal malpractice."
Many of the attorneys, some of whom had decades of trial experience, were very pessimistic about the willingness of Massachusetts judges to open up jury selection, at all. Maryellen had warned me to expect this response. She believes -- rightly so, I think -- that the criminal defense bar must make a concerted effort to change the status quo. The mindsets of Massachusetts judges will only begin to change if all the Bar Advocates start asking for the same procedural accommodations, and offering the same arguments in favor of those accommodations. So, one of my charges was to provide for the attendees a list of advantages to using supplemental juror questionnaires and attorney-conducted voir dire. This list is not targeted at the lawyers alone, but also at the judges whom they must convince to "loosen things up." That is, I tried to provide strategic, practical and legal arguments for employing less restrictive procedures.
To be fair, I have been at several local events at which judges have expressed a willingness to allow attorney conducted voir dire, but they always lament that no one ever asks for it! Hopefully, armed with some of the information and advice Diane and I offered on Saturday, some of these attorneys will get more involved in jury selection.
I have attached my presentation slides below. For articles I have written on supplemental juror questionnaires and voir dire, please follow these links. SJQ article. Voir dire article.
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 Schwartz@eps-consulting.com .
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 Schwartz@eps-consulting.com .
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