Exciting News!

Dear Followers of the The Jury Box,

It is with great excitement and anticipation that I write today to tell you all that I have recently accepted a position with TrialGraphix, the nation's premier full-service litigation consulting firm. The company website can be found at trialgraphix.com.

TrialGraphix, as its name would imply, is known for unparalleled design and execution of courtroom graphics and animation. Many of you know my views on the importance of visual learning among jurors, so I am thrilled to be associated with a firm at the cutting edge of that field. Now, I can not only make recommendations to my clients about demonstratives, but I can offer those clients the talent and resources at TrialGraphix to make those demonstratives come to life.

TrialGraphix is also at the forefront of trial technology, providing the expertise and technical solutions for any litigator's courtroom needs.

Of particular interest to me -- and you, too, I hope -- is TrialGraphix's long track record as one of the country's most respected jury consulting firms. One reason I agreed to join TrialGraphix is the tremendous respect I have for the jury consultants who are already there. I can't wait to work with them and to introduce them all to you.

For those of you who have worked with me in the past, rest assured that I remain committed to serving the needs of my existing clients. I will be running the jury consulting practice in the New York City office, which is a big change for me, but I will be in Boston often. This position provides me with the best of both worlds: the opportunity to continue to serve my New England clients and the potential to help future clients all over the country.

Since I have subscribers to the Jury Box from all over the country (and even other parts of the world), I want you to know that there is probably a TrialGraphix office near you. The company has offices is San Francisco, Los Angeles, Chicago, Houston, Minneapolis, Miami, Washington and New York. By all means, feel free to contact me directly with any jury issues that come up, but know that we have experience working in every state.

I plan to continue to publish the Jury Box Blog in much the way I have always done so. I apologize for the recent dearth of posts, but I have been quite busy preparing for my new job. I expect that the logo will change to reflect my association with TrialGraphix, but otherwise it will remain pretty much as is. I hope to get some of my new colleagues to contribute guest posts for time to time, especially in the courtroom graphics and trial technology fields.

Thank you all for your continued support of the Jury Box Blog and, by all means, look me up the next time you are in The Big Apple!

-Edward

Saving Chuck Turner from Himself: The value of witness prep focus groups

Chuck Turner, a longtime Boston City Counsellor, was convicted last week of taking bribes. He was arrested after the FBI conducted a sting operation, employing one of Turner's associates as an informant. Ronald Wilburn was sent into Turner's office to ask for help obtaining a liquor license. While there, Wilburn slipped Turner $1000 in cash during a handshake, all of which was caught on FBI surveillance video.

There are a couple of noteworthy features of the trial. First, the video is very grainy. So, while it is clear that something changed hands, and that it was almost certainly money, there is no way to tell how much. Secondly, Mr. Wilburn was overtly hostile to the FBI during his testimony. While he generally corroborated  the FBI's account of what went down, he greatly resented having been forced to participate in the sting operation and did not try to hide his contempt for the Feds in court.

So, after the Prosecution rested, things did not look good for Chuck Turner. There was, however, some hope that some jurors might have been upset with the way in which the FBI agents conducted themselves. While I rather doubt that any of them would have voted to acquit, I could have envisioned them settling on a verdict centered around minor charges.(Obstruction of justice).

Then Chuck Turner opened his mouth. Despite his attorney begging him not to take the stand, and one supporter literally trying to drag him back to his seat by his suit cuff, Turner insisted on testifying in his own defense. Turner took the stand and proceeded to hem and haw and fail to remember things. He denied small things that had been well-documented and claimed amnesia when convenient. In short, he came across as a smug, contemptuous liar, who believed that he could wiggle out of any situation on the strength of his own charm and guile. Needless to say, the jury didn't buy it.

Any experienced litigator has had a client who just didn't know when to keep his mouth shut. Either the person has insisted on testifying when he shouldn't have, or he insisted on giving a long, convoluted answer to a straightforward question. So, what can be done about a client who insists on talking himself into an adverse verdict?

Typically, such a client has a poor sense about how his testimony will be perceived. Either he simply does not appreciate how he comes across in public, or he fails to anticipate how poorly his style will translate into a courtroom setting. Since many such people are in positions of authority, they are not used to taking directions about message from others. So, how do you convince someone like this to do what's in his own best interest?

This is where videotaped witness preparation can really save the day. Rather than having a hypothetical discussion with your client about what to do on the stand, it is critical to submit the client to a realistic direct and cross examination. Make sure that the attorney you have recruited to act as opposing counsel is very well-versed in your case and really goes after your client. Exploit his weaknesses, trap him in contradictions and let him hang himself.

Once the session is over, review the videotape with your client. In most cases, the witness will quickly come to appreciate his deficiencies on the stand. Where the person continues to be obtuse (or insists he can fix things with a snap of his fingers), the next step is to assemble a small focus group of jury eligible people from the relevant jurisdiction. Show the practice testimony to these subjects and have a moderator lead a discussion about their reactions.

If Chuck Turner's defense team had conducted this simple exercise, I am pretty confident that his lawyers would have been able to convince him not to take the stand at his trial. While he might have still been convicted of some crime, he would not have created a permanent record of himself lying under oath in a court of law.

The lesson: Sometimes it is not enough to tell your client what to expect at trial -- You have to show him.

Trial Strategy can be as much about When as What

Two Defendants, Two Trials

As followers of The Jury Box Blog know, I have been blogging and tweeting regularly about the trials of Michael and Carolyn Riley, who were both accused of murdering their four-year-old daughter, Rebecca, by administering to her dangerously high doses of ADHD medicine, and then refusing to seek medical attention when she fell deathly ill.

Originally, the pair was scheduled to be tried together. Shortly before jury selection was scheduled to begin, defense counsel made a motion for separate trials, on the grounds that each was likely to implicate the other in mounting a defense. The district attorney did not object and the judge granted the request, recognizing the potential conflict of interest.

The district attorney was then faced with a new set of tasks. Rather than convincing one jury that the couple acted in concert, he had to convince one jury that Carolyn was responsible and then a completely different jury that Michael was responsible.

Who should go first?

Facing the prospect of successive trials, the DA had at his disposal one strategic lever. He got to decide the order in which the defendants would be tried. Before reading further, consider what you would have done? Who goes first?

The DA decided to try Carolyn first, followed by Michael. I think this was a wise strategy (and not just because it worked). At the time, I remember thinking how shrewd this was. Here's why:

Despite best efforts to select jurors in the second trial who are not informed about what happened in the first trial, it is impossible to do so with any confidence. Therefore, the DA had to think about the consequences of the first verdict on the second trial. The first step in the process is to consider the relative culpabilities of the two defendants.

Carolyn Riley is something of an enigma. She seems emotionally detached and not especially bright. There were times during recorded interviews when she didn't seem to really understand what was going on. While Carolyn certainly was not as caring towards her children as one would have hoped, she did not seem to have the mean streak that characterized Michael's personality. In many ways, she seemed to be in fear of her husband. Michael Riley had even been forced by court order to leave their family home at a previous location.

While it might have been a long-shot, it was not out of the question for Carolyn's defense team to mount an insanity defense. Who knows whether her kids were actually mentally ill in any way, but Carolyn clearly had some serious cognitive and emotional problems. So, while Carolyn seems to have actually performed more physical acts that contributed to Rebecca's death, she cut a more sympathetic figure than did her husband, Michael.

Consequences of First Trial on Second Jury

As a result of these factors, it seemed to be a safer bet to secure a conviction against Michael than against Carolyn. With this in mind, it definitely made sense to try Carolyn first. Consider the possible outcomes of Carolyn's trial. If she had been found not-guilty, the jury in Michael's trial would have felt particularly compelled to hold someone responsible for the senseless tragedy of Rebecca's death. If Carolyn had been found guilty of some lesser offense (as she was, in the end), the jury could certainly find room to decide that Michael was even more at fault. If Carolyn had been found guilty of first-degree murder, Michael's jury might have reasoned that he was at least as responsible and that fairness required the same verdict for him. So, trying Carolyn first would not interfere with the prosecution of Michael and might even help the case.

On the other hand, trying Michael first might have posed some problems for the prosecution against Carolyn. Had Michael been found not-guilty, Carolyn's jury would have likely considered it completely unfair to convict her of something for which her abusive husband got off scot-free. This dynamic pops up a lot in criminal cases. When an accomplice turns state's evidence and gets a cushy deal, a jury is sometimes reluctant to convict the defendant of anything too serious, on the grounds that the outcomes for the two are unfairly disparate. Jurors often don't even realize that they are applying such a "relative justice" metric.

Even if Michael Riley were tried first and convicted, Carolyn's trial team would play up the degree of dominance he exerted over the family. A juror who was looking for a reason to show mercy to Carolyn could seize on Michael's conviction as justification for leniency with respect to Carolyn. Since the "real bad guy" has already been convicted and Rebecca's murder will not go unpunished, a juror would be able to more easily justify (to herself and fellow jurors) going easy on Carolyn.

Applying Lessons Learned

It is, of course, easy to look brilliant playing Monday morning quarterback. The DA did, in fact, try Carolyn first. The defense never raised the issue of Carolyn's own mental state. The Commonwealth secured a conviction on Second Degree Murder. The subsequent trial of Michael Riley was quite unremarkable, relying on similar tactics as had been used unsuccessfully in Carolyn's trial. The two main defense tactics were to contest the Coroner's conclusion that Rebecca died from the drug overdose, rather than the pneumonia from which she was suffering, and pinning as much blame as possible on the Tufts staff psychologist who had prescribed Rebecca's medicine without conducting a thorough evaluation of the child. The major flaw in this approach was its failure to address the severe neglect of Rebecca in her final hours, as she begged for help while dying in her own home. At some level, I don't think the jurors cared as much about what killed her as they did about how her parents just let her die because they couldn't be bothered to get her medical care.

The outcomes of these cases, however, were far from a certainty. The DA did a good job, including the decision to try the defendants in the strategically sensible order. There is an important lesson here. Procedural decisions can have important strategic consequences. They should not be made lightly, or based solely on convenience.

When things go wrong with a pharmaceutical, it often triggers a whole series of lawsuits. A plaintiffs' attorney might have several cases against the same company. In addition to deciding on the best venue for bringing the suits, the lawyer should also think hard about the order in which she wants to bring the cases.

There is a high-profile case developing up here in Massachusetts, involving a high school student who hung herself after prolonged bullying by classmates. Criminal charges have been filed against nine different students, some of whom are charged as adults. The DA will have an interesting dilemma with respect to the order in which to prosecute these cases. Not all of the defendants are charged with the same crimes (a couple of boys are charged with statutory rape) and they seemed to have directed varying degrees of hostility towards the victim. It will be interesting to see the order in which the DA decides to proceed.

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?

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

Different Strokes for Different Folks: Consultant Usage varies by specialty and experience

Digging Deeper in the Data

In my last post, I reviewed some general trends in the data from my survey of trial and graphics consultant usage by trial attorneys. As I mentioned in the last post, the survey is completely confidential and only takes about 2 minutes to fill out. Several lawyers responded to my invitation and followed this link to participate in the survey. As such, the data I review today includes a few more observations. The more the merrier, so please take the survey if you have not yet done so!

In perusing the data, I noticed a few interesting trends. These relate to how long a respondent has been practicing law, what kind of cases she handles and where her office is located. I now turn to some of these trends.

Youth vs. Experience

One might expect that young lawyers would be more likely to hire trial and graphics consultants because these folks have grown up in the "high-tech" era. Everything in their lives has been accompanied by fancy graphics and animation. These young lawyers also went to law school after the adoption of the interdisciplinary approach to legal education. A lawyer under 50 years of age is more likely to have been taught by dual-degree professors and might, therefore, have a greater appreciation for the value of psychology and other social sciences in litigation.

As illustrated in the graphs below, this expectation is not born out in the data.

Trial Consultant Usage by Attorneys

More than 15 years experience    Less than 15 years Experience

Graphics Consultant Usage by Attorneys

More than 15 years Experience       Less than 15 years Experience

Trial lawyers with more than 15 years of experience were much more likely to report having employed a trial consultant or graphics consultant than their younger colleagues. So, what do we make of these results?

I think that there are a few factors at work here. First of all, a more experienced litigator will have handled a larger number of cases. As such, she is more likely to have come across some case along the way that seemed to require the expertise of an outside consultant, with respect to either jury or graphics issues.

Second, more experienced litigators tend to handle the higher stakes cases. This is both because litigants with a lot on the line seek out experienced litigators and because large firms assign their highest stakes cases to their most experienced lawyers. These high stakes cases are the ones for which lawyers see the most justification for incurring the expense of a trial or graphics consultant.

Exactly one respondent indicated that she uses a trial consultant in more than half of her cases. She is also the one lawyer who said she uses a graphics consultant more than half the time. This litigator has been practicing for less than five years, supporting, at least anecdotally, the "new breed of lawyer" hypothesis.

Cost Conscious Courtroom Counsellors

In the previous section, I raised for the first time the influence clients can have on their attorneys' trial strategy decisions. The survey sample is made up almost entirely of three kinds of trial lawyers, with different kinds of clients. More than half of the respondents handle predominantly civil defense cases. The remainder is roughly evenly divided between plaintiffs' attorneys and criminal defense attorneys. The differences in reported trial and graphics consultant usage among these three groups is quite remarkable.

Trial Consultant Usage by Attorneys by Primary Practice Area

Civil Defense         Civil Plaintiff           Criminal Defense

Civil defense attorneys are very often hired by insurance companies, who are the ultimate deep-pocket, repeat players in the judicial system. Handling thousands of trials annually, insurance company risk managers understand the value of pretrial research, witness preparation and well-designed jury selection strategy. A litigator might not be inclined to reach out to a consultant for advice, figuring that she has all the tools she needs to win a case. When an insurance company claims supervisor tells that litigator to run a focus group study, she does as she is told. From a personal perspective, I know that many civil defense attorneys call me because an insurance company has told them to "get your jury guy on the phone and set up a mock trial." Under such an arrangement, the litigator incurs none of the cost associated with hiring a consultant.

By contrast, most plaintiffs' attorneys reported having never used a trial consultant. This should not be surprising, given that their clients tend to have less money to work with. In addition, many plaintiffs, having never been involved in a trial before, have unrealistic expectations about the cost of litigation. A plaintiff attorney is under enormous pressure to keep costs down. The financial situation facing a plaintiff attorney tends to differ from that of the defense attorney on the other side of the aisle. Many plaintiffs' attorneys are solo practitioners or members of very small firms, handling mostly small cases. When a high stakes case does come along, such an attorney faces severe cash flow problems financing the litigation. While such a lawyer might very much want to hire a trial or graphics consultant, she might simply not have access to the funds to do so. I know that many of us in the trial consulting community have attempted to implement creative fee structures to make our services more available to plaintiffs' attorneys.

The graph representing trial consulting usage by criminal defense attorneys is probably quite misleading. I head the New England Team of the pro bono initiative of the American Society of Trial Consultants (ASTC). In this capacity, I have been running free clinics for criminal defense attorneys here in Massachusetts. I know that 3 of the 5 criminal defense lawyers who report having used a trial consultant are folks I have personally helped as part of this pro bono initiative. I would need a much larger, and geographically diverse, sample to know how common it is for criminal defense attorneys to use trial consultants.

By comparison, the data on graphics consultant usage should be more reliable.

Graphics Consultant Usage by Attorneys by Primary Practice Area

Civil Defense            Civil Plaintiff          Criminal Defense

The discrepancy between civil plaintiff and defense attorney resource usage is even more pronounced with respect to graphics consulting. A quarter of civil defense attorneys reported hiring a graphics consultant for more than 20% of their cases. By contrast, three-quarters of plaintiffs' lawyers report never having hired anyone to design or produce courtroom graphics.

The one young lawyer, who indicated that she uses trial and graphics consultants in more than half of her cases, handles both criminal and civil defense cases.

From What to Where

We have now discovered differences in consultant usage among lawyers who handle different types of cases. Civil defense lawyers make much more use of trial consultants and graphics consultants than do their less well financed colleagues. We also know that in some areas of tort law, the defense wins 90% of jury trials. It would be purely speculative to connect this success rate with use of trial and graphics consulting services, but it is suggestive enough to warrant further study.

Fortunately, with the exception of criminal defense attorneys, the lawyers who completed this survey are distributed throughout the country. This will provide me an opportunity to explore whether there are regional variations in trial and graphics consulting usage. I will have to be mindful, however, of the trends I have uncovered with respect to seniority and practice area. If the lawyers in one region seem to hire a lot of graphics consultants, I will need to make sure that it is not simply because they are all civil defense attorneys.

Finally, I wish to explore whether there are any systematic variations in the types of services for which attorneys hire consultants. Is it mostly for jury selection in one region and mock trials in another? Do certain types of attorneys hire consultants to help with witness preparation more than others? I will address these questions, along with geographic variations, in my next post.

Trial Consultant Usage All Over the Map

The Survey at a Glance

Several weeks ago, I was in conversation with a colleague about the different approaches taken by various lawyers with respect to using trial consulting services. Some lawyers don't see any use for our expertise, or believe that their clients just can't afford to use us. Some lawyers employ the occasional consultant to run jury research, but really want a project manager more than an expert in jury behavior. There are many lawyers who will call in a trial consultant for the occasional case when she experiences uncertainty regarding a particular jury issue. Finally, there are a handful of lawyers who work with a trial consultant on virtually every case, finding their expertise to be well-worth the investment.

I commented, rather off-handedly, that I thought there were probably lots of regional differences. I think that differences in procedural rules (e.g. attorney conducted voir dire, ad damnum usage) and legal culture result in their being jurisdictions where litigators make great use of trial consulting services and others where attorneys rarely hire trial consultants.

I soon realized that this was a testable hypothesis. So, I went off to SurveyMonkey.com and crafted a short survey to investigate which litigators hire trial consultants (and courtroom graphics consultants) and which ones don't. I included questions about how long each respondent has been a lawyer, what kind of cases she handles, and where her office is located.

The survey is still live and I will be analyzing the data long into the future. So, if you are a trial lawyer, and you have not yet filled out the survey, please do so here. It only takes about 2 minutes and it is completely anonymous.

Spreading the Word

As many of you know, I am extremely active on LinkedIn. I posted a notice about the survey as a discussion on many of the groups to which I belong. I also tweeted an invitation to participate on several occasions. Finally, I sent out an email to everyone on my professional distribution list (formerly used for my newsletter, before it became this blog). I would conservatively estimate that at least one invitation to participate was seen by over 500 litigators.

Well, I wasn't offering to pay respondents. I wasn't raffling off an iPod or a timeshare in Maui. Lawyers are used to billing clients for every 6 minutes of their time and they are extremely sensitive to concerns about online privacy. So, the response rate was not great.

As of today, 37 people have completed the survey. Of these, 5 indicated that they were not lawyers (although a few might work for law firms in some other capacity). 28 of the respondents indicated that they heard about the survey on LinkedIn. 8 found out through email, and 1 via Twitter. Needless to say, any conclusions to be drawn from such a small sample will be speculative in nature. I do hope, however, that the results will give us something to build upon in the future.

Preliminary Results: Trial Consulting

I was careful in the survey to differentiate between "Trial Consulting" services, which deal with the social psychology of jury behavior (jury selection, witness preparation, focus group studies, etc.) and "Trial Graphics" services, which include illustrations and animations for courtroom use. Here is a graph illustrating the frequency with which survey respondents employ "Trial Consulting" services, in terms of percentage of cases.

Trial Consulting Service Usage: Full Sample

As you can see from the figure, very few attorneys indicated that they used trial consultants for more than 20% of their cases. The interesting distinction here seems to be between those litigators who sometimes use trial consultants and those that never do. For my sample, approximately 60% of respondents indicated they had ever used a trial consultant. 

There are a couple of reasons to be skeptical of these numbers. First, I would expect that participating in the survey would be more interesting to those lawyers with some familiarity with trial consulting. As such, I thought that most of the respondents would be lawyers who had worked with trial consultants in the past. Second, the publication of the survey was heavily skewed towards people who know me in some capacity. Of those, I would expect that my clients would be particularly inclined to help me out by filling out the survey. (Based on zip codes and other survey responses, I am fairly sure that about a half-dozen respondents are, in fact, clients of mine.) In light of these factors, I believe that these results probably overestimate trial consultant usage in the general population.

I am located in Massachusetts and most of my clients are from New England. This is reflected in the large number of respondents from this region (9). That said, it is gratifying to see that the remainder of the respondents come from all over the United States. I will be discussing regional variations in the data in my next post.

Preliminary Results: Graphics Consulting

I am what I refer to as a "behavioral" trial consultant. While I advise clients on the kinds of exhibits they might employ at trial, and evaluate the utility of the graphs and illustrations they already have, I do not provide trial graphics services. As such, the responses with respect to graphics consulting are probably less skewed by the participation of my own clients. The graph below shows graphics consulting usage for the complete sample.

Graphics Consulting Service Usage: Full Sample

About half of the survey's respondents have used a graphics consultant for at least one case. I think that most of us would expect trial graphics to be used more frequently than trial consulting. The discrepancy between this expectation and my data undoubtedly arises from the participation of many of my clients. Several of these attorneys, especially those doing criminal defense work, have benefitted from my active pro bono practice. They have not had similar access to affordable trial graphics assistance.

Do the Same Lawyers use Both Services?

As I mention above, there is reason to believe that at least a handful of attorneys would make use of trial consulting services, but not graphics consulting ones. Is this a common occurrence? The graph below answers this question.

Joint Usage of Trial and Graphics Consulting Services

As a general rule, lawyers either use litigation consulting services of both types, or they don't use either. Only a few litigators reported using graphics consultants but not trial consultants. I find this result a bit surprising. While I did not ask respondents about the size of their firms, I would expect that this sample is heavily weighted towards small and mid-sized firms, whose attorneys tend to be heavier users of LinkedIn. Lawyers from large firms (many hundreds of lawyers) are unlikely to have found their way to my survey. Such firms handle huge IP and business litigation cases, in which courtroom exhibits are sophisticated and plentiful. The underrepresentation of such litigators from my sample have certainly affected the nature of my results.

Questions to be Explored

These preliminary results are certainly interesting. We have responses from many attorneys who have used a trial or graphics consultant to help with jury trials. Who are they? What kind of work do they do? Where do they practice? These are the more nuanced questions that I will be addressing in my next two posts.

In addition to surveying experience with consultants, I asked respondents about which kinds of services they had hired consultants to perform. I provided an extensive list, including jury selection, witness preparation, illustrations, animations and more. I will explore in a future post trends in the data, with respect to which trial lawyers made use of which services.

So, stay tuned! Same Bat-time, same Bat-channel.

And remember, it's not too late to contribute your own experience to the data. Take the survey here.

Don't wait for mediation to fail before calling trial consultant

More Great Stuff in The Jury Expert

The most recent issue of The Jury Expert has just come out. For those who are still in the jury trial dark ages, The Jury Expert is the online publication of The American Society of Trial Consultants. It has quickly become the go to source for expertise on jury behavior, jury trial strategy and recent developments in the American Jury system. Any litigator who doesn't subscribe just isn't that interested in winning at trial. 'Nuff said.

How to Win a Mediation

In the November issue, Melissa Gomez has contributed a very nice article on the importance of conducting jury research prior to mediation. Melissa focuses on a particular aspect of jury research -- and a very important one -- figuring out what your case is worth. Any settlement discussion takes place in the shadow of a jury trial. What offer should you make? What counter offer should you accept? The answers depend, of course, on what you think a jury will do. Information is power. If you understand better than your opponent what a jury will do at trial, you will "win" at mediation. To this end, Melissa particularly advocates focus group research targeted at the damage award calculations that jurors will undertake. She also refers to these as "valuation studies."

She points out another advantage of such studies. Sometimes, a lawyer has to convince her own client of what a case is worth. Mediation is only successful if client and attorney walk into the room on the same page. Melissa offers a nice example of a case in which pre-mediation research provided the client with realistic expectations of how a jury would react to a case. This permitted the lawyer to guide the client to a sensible settlement.

Ignore the data at your own peril

Melissa also offers a couple of cautionary tales about litigants who chose to proceed to trial notwithstanding study results that suggested doing so was a bad idea. Remember: It doesn't matter what you think the case is worth. It only matters what a jury thinks the case is worth. This does raise an issue that we trial consultants often encounter. For jury research to be successful, it is important to have buy-in from both litigants and litigators. While numbers are always involved, we are generally dealing with small enough samples that this is qualitative research. The trial consultant's expertise is critical to interpreting those results. If a lawyer, or her client, does not respect that expertise, the time and expense of a jury study will be for naught. If you treat your trial consultant as a glorified project manager, you will be squandering the value of your jury research.

It's not just about the numbers

Melissa has done a nice job of illustrating the value of pre-mediation jury research on case valuation. This is not, however, the be all and end all of trial consulting for mediation. A mediation is not a trial, but it is a legal process. It has its own rules, ebb and flow, and opportunities for information exchange and argument. In the same way that it is critical to have a solid presentation strategy for a jury trial, it is vital to have a game plan for mediation. If you plan to just show up and hear what the other side has to say, you are wasting an opportunity.

Typically, each side has an opportunity for an "opening statement" to the mediator. Each side can bring in exhibits, reports and data. In addition, this is a lawyer's one real opportunity to speak directly to the client on the other side of the case. A good litigator will use that opportunity to her advantage. I discuss how a trial consultant can help a litigator prepare for some of these other aspects of mediation in an article I wrote for Lawyers Weekly. While there is some overlap with the themes in Melissa's Jury Expert article, there are several other nuggets of wisdom, as well. Check it out!

Thou Shalt Not Kill -- but feel free to lie by omission

Jury selection begins today in the trial of George Tiller, a Kansas doctor who is known for running a clinic that performs late-term (sometimes referred to as "partial-birth") abortions. Tiller is accused of 19 misdemeanor counts of failing to secure a second opinion before performing these late-term procedures. In truth, he did secure second opinions, but always from the same doctor, Dr. Ann Kristin Newhaus. The prosecution contends that Tiller and Neuhaus had an ongoing financial relationship, in violation of Kansas law. This relationship, it is alleged, negates the legitimacy of those second opinions.

The judge in the case, Hon. Clark Owens, will undoubtedly admonish the members of the jury pool that this is not a case about the legal, ethical, moral or religious status of abortion. He will ask each of them whether s/he can put aside whatever preconceived notions s/he might have about the issue and decide the case strictly on the facts. Those who ultimately serve will have somberly nodded and sworn to be impartial. And each and every one of them will have been lying.

Any case involving abortion is certain to invoke strong feelings about the issue. A pro-life juror will always view the actions of an abortion doctor with greater skepticism than will a pro-choice juror. But this is not just any case.

For the past 25 years, Dr. Tiller has been at the center of the abortion debate maelstrom in the nation's heartland. In 1986, his clinic was damaged by a pipe bomb. In 1991,Operation Rescue staged the 45-day "Summer of Mercy" event outside his clinic. In 1993, a pro-life vigilante shot Dr. Tiller once in each arm. When it comes to the war over abortion, Dr. Tiller's Wichita clinic is ground zero.

Two prior attempts to prosecute Dr. Tiller failed because the grand juries refused to indict him. Another attempt, filed by former Attorney General, Phile Kline, was dismissed for jurisdictional reasons.

Which brings us back to jury selection. Any juror who says she can judge this case impartially is deluding herself and/or the court. This clinic has been in the local news for 40 years. Everyone has an opinion. Unfortunately, when the court tries to determine who will at least try to stick to the facts, Judge Owens will undoubtedly ask exactly the wrong question, as almost all judges do. The judge will ask each juror whether she can set aside what she's read, or heard, or seen about the case. He will ask each juror whether she can rely on the facts, notwithstanding personal views about abortion. And the judge will seat the jurors who answer "yes." And there's the rub...

Decades of research into the effects of "extra-legal factors" (such as pretrial publicity or religious views) on verdict choice shows that those jurors who believe they can ignore the effects of such factors are generally more influenced by them than those jurors who admit that they would have a hard time putting their feelings aside. This should come as no surprise to any casual student of human nature. Those people who are introspective enough to realize that their feelings and experiences will affect their decision-making are better able to recognize when it is happening and try to compensate. To state it more simply, those who are more worried about being unfair will work harder to be fair.

So, following upon centuries of experience and precedent, Judge Owens will almost certainly seat exactly the wrong jurors.

So, is all lost? Is it hopeless to think that the state and the defendant will receive a fair trial? Not necessarily. I am a legal realist (and a dangerously knowledgeable social scientist). As such, I have never believed that an impartial jury is one comprised of impartial jurors -- such animals don't exist. Rather, an impartial jury is comprised of people who represent a fair cross-section of the community, with all the experiential and emotional baggage that we all carry, and who will hopefully walk into the jury room with open ears and an open mind.

I think it works most of the time. On almost all issues, more unites us than divides us. Most people appreciate that we don't live in a world of absolutes. Reasonable people can disagree.

Unfortunately, abortion is one of those issues that seems to completely polarize the populace. Do any of us really have an open mind on this issue? This case is almost certainly going to become a referendum on abortion. If that happens, I cannot imagine any outcome other than a hung jury -- and a contentious one at that.

This is not the last we'll hear about this case. It threatens to go on, and on, and on...

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 .

Online Mock Trials: Real bargain or just bargain basement?

The last couple of years has seen a proliferation of online mock trial tools. The creators of these products vary with respect to how hard they push their products as equal or superior to traditional techniques for conducting jury research. In this issue of the Jury Box, I will offer my own view on the utility of online mock jury tools. Along the way, I will outline what I believe to be the advantages and disadvantages of conducting jury research online. A sizable chunk of this review will be devoted to evaluating the sources of cost savings associated with online mock trials. The lowest cost option is not always the best option.

Two types of businesses have set up online mock trial programs. Several have been developed by entrepreneurs (or market research firms), hoping to market their products directly to lawyers. Such a company typically holds up its product as a low cost alternative to hiring a jury consultant to conduct a live mock trial. Perhaps motivated by perceived competition, several trial consulting firms have developed their own mock trial protocols.

An explanation of how these programs typically work reveals that the term “online mock trial” is really a misnomer. Here’s how they work:

Nuts and Bolts
The attorney reduces the case presentation to a series of files that can be uploaded to a website. Most sites allow the uploading of text, audio, images and video in fairly standard file formats. Typically, a premium is charged for loading high bandwidth material, like audio or video. Some are better than others at connecting exhibits to the corresponding presentation or testimony. While the online service might provide a basic pre-study questionnaire and post-study response form, it is usually the responsibility of the client to provide a list of case-specific questions to be answered by each respondent.
Each online site promises to recruit subjects to participate in your study. They use a variety of recruitment techniques, which is something to which you should pay close attention. I will return to this below. The more subjects you want to use, the more you will have to pay for both recruitment and participation. Many sites allow the attorney to set the participation inducement, understanding, of course, that recruitment will be trickier the less is offered in payment.

Once the materials are loaded and subjects have been recruited, the participants are given a password to “view” the case and provide feedback. Most sites, especially the low cost ones, allow respondents to log on and go through the case whenever they want, from the comfort of their own homes (or offices!). Some sites offer you the option of having all the subjects review the case at the same time and “deliberate” in the form of text chat. This lack of face-to-face interaction is one major casualty of conducting jury research in this way.

Since the respondents are all answering questions online, it is fairly straightforward to collect and collate the data. Reports are generated automatically from collected data and the client can download them at her leisure. Only the programs run by the trial consulting companies offer to have a jury expert interpret the data and write a corresponding report.

Running additional trials, with or without tweaking of the presentation materials, is straightforward since everything has already been uploaded.

So, what are you buying?
As you can tell from this brief description, there really is no way to simulate an entire trial using this technology. It lacks much of the verisimilitude that makes a true mock trial so valuable. Rather, the technology is best employed for testing case themes or evaluating juror reaction to particular arguments, testimony or evidence. As such, these companies are really offering online focus group research, not online mock trials. Perhaps this is a semantic point, but you should be aware in advance what these programs can and can’t provide in terms of jury research.

As I move into an evaluation of online mock trials, let me be clear about one thing. Most of these programs are very well crafted. The designers have been quite thoughtful and thorough and most of the programming is well done.

Any weaknesses are not due to lack of planning or effort. Rather, they all suffer from a fundamental shortcoming in the enterprise. How does one simulate a highly personal, interactive and collaborative process with an anonymous, passive and solitary methodology? The answer, of course, is that you can’t. These online programs can help lawyers learn about juror reaction to some aspects of trial, but they can’t replicate jury reaction very well at all. This fundamental distinction permeates much of what I lay out below.

Is it really such a bargain?
One of the biggest selling points for these online jury research programs is the profound cost savings. Many tell you that you can conduct your mock trial at one-tenth the cost of a traditional study. Let’s investigate the sources of the cost savings and what sacrifices accompany them.

The online jury research company charges you nothing (or very little) to load your presentation, pre-study questionnaire, exhibits and verdict forms to its website. These materials, however, do not materialize out of thin air. When a trial consultant quotes you a price for a focus group, it typically includes provisions for the consultant to assemble all these materials and help you put them in the proper form for presentation. Someone has to do this preparatory work regardless of whether the study is live or online, and it’s going to cost your client some money, paid either to you or to the consultant you hire to help you out. If you choose to prepare all the materials yourself, you lose all the expertise that a trial consultant can provide. The more you skimp on this preparation, the less reliable will be your results. As with most things, you only get out of it what you're willing to put into it.

Online companies typically charge less for participant recruitment and pay subjects less than those who recruit for live studies. The cost savings comes from two sources. First, it is probably easier to convince someone to spend a couple of hours on their laptop than to drive across town to participate in person. This is especially true for non-collaborative online studies, where each subject can log on at her leisure. Second, given the convenience, one doesn’t have to pay online participants as large an inducement.

The vast majority of what a focus group facility charges a consultant is dedicated to subject recruitment and compensation. Please be aware that not all subjects are created equal. Reputable recruiters use random dialing techniques or large proprietary subject databases to insure that the sample is representative of the venue requested. If you go on Craig’s List, MySpace, or dozens of ad posting sites, you can find hundreds of ads seeking online mock jurors. The online mock trial companies typically save time and money by recruiting in this way. Respondents to such ads hardly comprise a random sample of the community, and you run the risk of drawing a jury full of professional mock jurors. As the Econ folks say, “You get what you pay for.”

While you may be able to hire online participants more cheaply, you are definitely buying an inferior product. There is no way to monitor how attentively each respondent is reviewing your case. In some circumstances, it may be impossible to tell whether the subject reads your case, at all. You can’t examine the expression on each subject’s face as she learns about your case. You can’t hear the audible gasp when a particularly damning piece of testimony comes out. Finally, and most importantly, you cannot watch the jurors deliberate – because they don’t. For certain kinds of questions – most notably damages – a jury’s evaluation is much more than the sum of those of its jurors. Deliberation is an organic, collective experience. It is expensive to recruit for a real focus group precisely for the reasons that make it most valuable: It’s hard to get a sizable representative group of people in the same place at the same time so that you can watch them evaluate and deliberate about your case.

When your online jury study has been completed, you get a detailed report of exactly how each subject responded to each question asked. Most sites even draw fancy pie charts and allow you to view the data broken down by age, gender, verdict choice and the like. But what are you supposed to do with all this raw information? For a trial consultant, actually getting the study completed has only started the process. We really earn our money by interpreting the results. We help you figure out what the results really mean and how to implement what you’ve learned when choosing litigation strategies. I suspect that if you hire a full service trial consulting company to conduct an online focus group, using its proprietary technology, it will represent only a modest cost savings over a simple live study.

The Verdict…
So, what’s the bottom line? Well, online jury research can be an economical way to learn how more-or-less ordinary people react to particular aspects of your case. Remember, however, that the value of hiring professional trial consultants and recruiters lies in the expertise they bring to the table. All of this is lost if you choose to go it alone, either online or otherwise. These online services offer a potentially useful tool, but make sure to hire someone who really knows how to use it.

Shop before you buy. Ask explicitly about how the service recruits subjects, how they monitor attentiveness, how subjects are directed to review exhibits and what form of deliberation is available, if any. Run the tutorials on several sites to test for ease of use.

As the technology advances, however, we will be in a better position to simulate a real focus group online. Every MacIntosh already ships with a built-in camera and many PCs are similarly equipped. If teenagers can talk trash while playing World of Warcraft online, we can’t be far from being able to watch and talk to online respondents as they review a case and deliberate among themselves. The technology for such videoconferenced focus groups already exists, but requiring respondents to own compatible technology would further skew the distribution of eligible participants.