Trial Consulting 101
ASTC 2017
Instructors:
Jeremy Rose, Ph.D.
Leslie Ellis, Ph.D.
Agenda
I.
Sample Case
II.
What Trial Consultants Do and Don’t Do
III.
Common Trial Consulting Services
IV.
I.
Pre-trial Research
II.
Introduction to Research Methods
III.
Case Analysis
IV.
Theme Development
V.
Jury Selection
VI.
Witness Preparation
VII.
Post-Trial Interviews
Getting and Keeping Clients
Why the Emphasis on Professional Code?
The good news: no licensing, bar exam, restrictions
on who can do trial consulting
The trade-off: makes it all the more important that
we all behave well
Don’t ruin it for all of us
Required for ASTC membership
Sample Case
Sample Case
Case Timeline
•
Paul is a high school teacher at a private school;
he teaches English and is the Varsity team
baseball coach
•
Cindy is a local retail store manager for a national
chain store that is known for good salary, benefits
and upward mobility within the company
•
They live in Phoenix, Arizona and have two kids
Case Timeline
•
Paul is a gun enthusiast and owns multiple guns
•
January 2 - Paul buys his third gun, a Bushmaster
rifle
•
January 10 – Paul takes a refresher gun safety
class
•
January 11 – Paul goes to the shooting range to
practice with his new gun
Case Timeline
•
Jan 15 – Paul shows his new rifle to a friend, a
fellow gun owner and enthusiast
•
As Paul is putting the gun away it fires, hitting
Cindy in the next room
•
She is shot in the back and becomes a
quadriplegic
•
Paul and Cindy sue Bushmaster, the gun
manufacturer, claiming the gun’s safety
mechanism was defective
Other Facts
•
Bushmaster was also been sued after the
Newtown shooting – Adam Lanza also used a
Bushmaster rifle
•
There is an internal document within Bushmaster
in which someone in R&D expresses concern
about the safety mechanism
•
One of Paul’s friends has testified that he worried
that Paul didn’t always use the safety mechanism
on his guns
•
Cindy had been a store manager for 6 weeks
Deliberate
Introduction to Trial Consulting
Being a Juror
• What did you want to know?
• From whom did you want to hear it?
• How would you have liked to have heard it?
• What would have helped you?
What Trial / Jury Consultants Do
•
Individual decision making
•
Group decision making
•
Persuasion and messaging
•
Storytelling
•
Process, NOT outcome
•
How and why do decision makers do what they
do?
What Trial / Jury Consultants Do
•
Pretrial research
•
Opening statements, graphics
•
Witness preparation
•
Venue surveys
•
Jury selection: voir dire, SJQs, internet research,
assisting w/ jury selection
•
Shadow juries and trial monitoring
•
Post-trial interviews/jury reconvening
The MAIN thing Trial Consultants do:
Advise attorneys
…who may not heed your advice
…who have ideas of their own that they won’t
abandon
…who may not even tell you the biggest problems
with the case
…who may not have even hired you
…who may be (will be) unresponsive or (and) make
last-minute requests
Trial Consultants Don’t / Can’t:
•
“Win” or “lose” cases
•
Ask voir dire questions
•
Deliver opening & closing statements
•
Examine witnesses
•
Make final decisions
•
Predict outcomes
The Lives and Hard Times of Trial Consultants
•
Backgrounds
•
Organizations vs. individuals
•
Civil v. criminal
•
Daily work life
•
Travel
•
Flexibility
•
Business development
Vital Trial Consulting Skills
•
Analytic ability
•
Ability to see a case from both sides
(don’t drink the Kool-Aid)
•
Creativity
•
Multitasking
•
Patience – ability to go with the flow and play
second fiddle
•
Communication
•
Confidentiality and conflict checks
•
Ethics - ASTC professional standards
If You Feel Deficient in Some Areas…
•
Trial consulting is a complex enough field that
everyone enters it with a deficiency of some kind
•
“I don’t know the law”
•
“I don’t know the social science”
•
“I don’t know the research methodology”
•
“I don’t know the business side”
Pre-Trial Research
Types of Research
 Focus
Groups
 Moderated
 Issues,
 Early
 Mock
/ Structured
exhibits
in litigation
Trials / Trial Simulations
 More
formal and structured
 Adversarial
 Issues,
exhibits
 Witnesses
Types of Research
 Surveys
 Case
prep
 Venue
 Jury
/ composition
Profiling
 Online
v. telephone
Why Do Jury Research?
Because of the word “reasonable”
Watch for it in jury instructions:
Negligence: “… the failure to use reasonable
care…”
Criminal: “Guilt beyond a reasonable doubt…”
Contract: “For a contract to exist, the parties
must agree with reasonable certainty…”
Police misconduct: “Reasonable force may be
used if the person using it reasonably
believed that circumstances existed
justifying the use of reasonable force”
Whose Opinion of “Reasonable” Matters?
•
Not the trial consultant’s
•
Not the judge’s, or the lawyers’ or any legal
expert’s
•
Only the jurors’ opinion of “reasonable” counts
Professional Standards
•
Surveys: Not designed to persuade or influence
public opinions
•
Change of Venue: many specific guidelines – see
handbook
•
Communicate caveats
•
Protect client confidentiality and participant
anonymity
Focus Groups & Mock Trials
 Goals
 Length
 Number
of participants
 Presenting
 Evidence,
the case (attorneys vs. TCs)
witness testimony
 Confidentiality
& discovery
Preparing for Research
•
Designing the project
•
What are you testing?
•
Best time to test
•
Goals of the research: Local attitudes, liability,
witness evals, damages, juror profiles?
•
Balance in Jury Instructions and Verdict Form
•
Worst case scenario approach
•
Writing case-specific questionnaires
•
Recruiting participants
•
Getting the attorneys’ attention
Most Common Problems
•
Balance issues
- Who plays the “bad guy”?
- Length, sophistication
- Tone, “dead giveaways”
•
Over-ambitious – trying to cover too much
•
Under-ambitious – don’t want to cover enough
•
Recruiting issues
•
Logistics – A-V, seating, parking, food
•
Unrealistic Expectations
Analysis
•
Analysis vs. prediction
•
Discovering weaknesses
•
Capitalizing on strengths
•
What do jurors think the case hinges on (probably
not what the lawyer thinks it does)
•
Finding language that works for the jurors
•
Theme development
•
Strategic recommendations
•
Jury selection
Introduction to Research
Methods
Limitations
•
Small group research ≠ experimental design
(usually)
•
Focus is on process, NOT outcome
•
Do not overpromise what you can deliver
•
Sample sizes
•
Bad data are worse than no data
•
You are the expert on research design, not your
clients – consult
Experimental Design
• Not very common in our projects
• Need large sample size
•
Do not compare a single group to another
single group
Survey / Questionnaire Design
•
NO push polling
•
Validity and reliability
•
Avoid compound questions
•
Question fatigue
•
Order effects
•
Forced choice v. open-ended
•
Carefully consider response options
•
Nominal/ordinal v. scale items
•
Spillover effects
•
Refer to Professional Code for more information
Recruiting
•
Work with professionals – don’t try to do it yourself
via Craigslist, Amazon Mechanical Turk, etc.
•
Recruiting and paying jurors should be the largest
expense of any small group research
•
Replicate the jury pool as closely as possible
•
Adequately screen and inform
Statistics
•
Can’t do most of what you may have learned in
grad school
•
What to do when?
•
•
What does your client want to know?
•
Question type
•
Sample size
How to run them?
Statistics
•
Question type is a big factor
•
Nominal or ordinal – frequencies, crosstabs and
Chi Squares
•
Interval – means and t-tests
•
Ordinal or interval – Pearsons or Spearman
correlations
Statistics
•
Example:
•
Does experience with guns affect opinions in
this case?
•
Compare responses of those with positive and
negative experiences
•
Plaintiff or defense verdict – compare
frequencies with a Chi-square test
•
How strong was the plaintiff’s case? 1-9 –
compare means with a t-test
•
How afraid are you of guns (1-5 or 1-9) x how
strong was the plaintiffs’ case (1-9)? –
correlation
To Learn More…
• ASTC Code of Professional Standards
• Attend Joanne Keyton’s session on Saturday
• ASTC Professional Education webinars
• LinkedIn Research Methods groups
• e.g., Research, Methodology and Statistics in
the Social Sciences
Case Analysis / Strategic
Consulting
Types of Case Analysis
•
Venue
•
Theme development
•
Witness order
•
Opening statements
•
Closing arguments
•
Bifurcation
•
Trial team composition
•
I wonder what a jury or a judge would think of
this?
Opening Statements
•
Effective themes
•
Storytelling
•
Persuasion (without “arguing”)
•
Graphics/Demonstratives
Theme Development
Sample Case – Plaintiff Themes?
•
Profits over safety
•
Responsibility to public
Sample Case – Defense Themes?
•
Personal responsibility
•
Can’t protect people from themselves
Jury Selection
Arguments and People
How do we want to argue this case?
•
Depends who you’re arguing it to
Who do we want on the jury?
•
Depends on how we’re arguing the case
Jury Selection Prep
•
What themes / issues do the “worst” jurors
respond to?
•
How to identify the bad jurors without giving a
bad first impression?
•
What moral / ethical issues might affect juror
perceptions?
•
What motives, decisions, or expectations will
jurors see in the case story?
Jury “Deselection”
•
How it works
•
Voir dire
•
Peremptory strikes & cause challenges
•
Variance between different venues, judges: Know
the rules!
•
Restrictions: you can’t strike jurors based on
“cognizable groups” (race, gender, nation of
origin, etc.): Know the rules!
Analyzing Jurors
Demographics
Attitudes
Experiences
Sample Case: Plaintiff Strategy?
Demographics
Attitudes
Experiences
Sample Case: Defense Strategy?
Demographics
Attitudes
Experiences
Jury Selection Prep
•
Develop criteria for peremptory strikes
•
Develop strategies for cause strikes
•
Discuss the use of a Supplemental Juror
Questionnaire (SJQ)
•
Write voir dire questions and follow-ups
Supplemental Juror Questionnaires
3 Primary Purposes:
•
Privacy / candidness
•
Pre-trial publicity
•
Efficiency
SJQ Considerations
•
Getting approval from the judge
•
Negotiations w/ opposing side
•
Timing (advance mail-in vs. day-of)
•
Length
•
Wording – neutrality, scope, clarity
•
Not a substitute for oral voir dire!
Voir Dire
•
Preview case themes
•
Identify your bad jurors
•
Get them to say “the magic words”
•
Exercise peremptories: White v. Struck methods
•
Consider group dynamics
•
Beware of Batson/J.E.B violations
Sample Case: What Would You Want to Know?
•
Experience with guns
•
Fear of guns
•
Locus of control
In the Courtroom…
•
Stay negative (there’s no point thinking about
what jurors you “want,” only who you don’t want)
•
Remember: you can’t speak
•
Act and look like you belong there
•
Attorneys may think it’s about “connecting” with
the jurors – it’s not
•
It’s about the jurors connecting with the case,
not with the attorney
•
More than anything, it’s about uncovering bias
Implicit Bias
•
We are ALL biased in some way
•
Often extends beyond race and gender
•
How to uncover it?
Professional Standards
•
Comply with jurisdiction’s and the court’s rules
•
No communication with jurors
•
Respect juror confidentiality
•
Bars discriminatory use of peremptory challenges
Online Research on Jurors
•
Who/what/why/when
•
Viewing public information is permitted
•
No direct communication with jurors
•
NY and ABA opinions
•
•
NY strictest to date, applies in NY - Bars
automatic notifications (e.g., LinkedIn)
•
ABA applies nationally – Does not bar automatic
notifications
•
Some follow NY rules regardless of location
Professional code – follow whichever rules apply
Online Research on Jurors
•
Is it helpful?
•
Do you want jurors to know?
•
What if you find evidence of juror misconduct?
Online v. Telephone Surveys
•
Type of survey (community attitude, change of
venue, juror profiling)
•
Telephone v. online
•
Different capabilities
•
Different sampling and venue issues
•
Order effect
•
Professional Code applies regardless of method
Online Small Group Research
•
Sampling
•
Online v. IRL
•
What can be done online?
•
What should or should not be done online?
•
Professional Code:
•
Employ methods to maintain confidentiality – by
you and participants
•
Ensure participant information is accurate and
they keep information secure
Witness Preparation
Juror Do NOT Like…
•
Evasiveness
•
Verbose answers
•
Powerless speech
•
Anxiety
•
Combativeness or defensiveness
•
Distracting non-verbal behavior
•
Distracting verbal behavior
Jurors Do Like…
•
Style of answering – direct and to the point
•
Just the facts, ma’am
•
Eye contact and being engaged
•
Connecting the dots
•
Thoroughness of facts/research review
•
Content
Witness Preparation
•
Preserve attorney work product privilege
•
Type of witness – fact, expert, corporate rep, CSuite
•
Talk to the witness first
•
Help her understand her audience and their
expectations
•
Help them feel prepared
•
Incorporate of jury-friendly case themes into
testimony
Witness Preparation
•
Practice everything
•
Content
•
Behavior
•
Cross examination
•
Minimize undesirable characteristics to improve
credibility; incorporate what you can’t change
•
Prep for depositions and trials
•
Use video when appropriate
•
Sometimes you have to prep the attorney, too
Professional Standards
•
Do not attempt to alter or conceal the truth
•
Discuss goals and limitations, process, and limits
to confidentiality in advance
•
Confidentiality
•
In re Cendant Securities Litigation appellate
ruling
Post-Trial Interviews and Jury
Reconvening
IF permitted
•
Interview protocols
•
Juror Contact info
•
Telephone vs. in-person
•
Individual vs. group
•
Incentives
•
Candidness w/ jurors re identity of your client
•
Client identity
•
Develop protocol if you find evidence of
misconduct
Professional Standards
•
Seek permission from court
•
Seek candid permission from juror
•
Seek permission to record (if desired)
•
Do not ensure confidentiality
•
Do not seek agreement to prevent interviews w/
others
•
Document interview responses
•
Applies to dismissed jurors as well
•
Compensation, if offered, must not be coercive
The Business Side of Trial
Consulting
Getting – and Keeping – Clients
•
“People may not remember what you say, but
they’ll always remember how you made them feel”
•
Conferences/Sponsorships
•
CLEs/Lunch ‘n Learns
•
Contact (in person, phone, email)
•
Community presence (LinkedIn, blogs, etc.)
•
Client entertaining
•
Responsible billing
•
Responsiveness
•
RELATIONSHIPS
To Run a Conflict Check
•
Law firms – by client
•
Trial Consultants – by case and/or by client
•
Keep everything confidential
•
Only get public information
•
Case Caption (complaint, recent filing)
•
Complete service list (past and current counsel for
all parties, including local counsel)
•
Venue, judge, trial date (if set)
•
Summary of the case (including patent numbers)
•
Related litigation
Professional Standards
•
Run conflict checks before every engagement
•
Clarify who is “the client”
•
Advertising: avoids misrepresentation of
qualifications, experience, and trial outcomes
•
No win-loss record
•
Obtain client approval to use attorney or case info
for marketing
Intake Calls
• Name and firm
• Basic case information, including their client
• Keep it to public record – VERY IMPORTANT
• What are they looking for
• When do they want to do it
• Do they have a scope or budget in mind, or are
they looking for recommendations?
• Are they getting multiple proposals? If so, what’s
most important to them?
• Request information to clear conflict before
sending a proposal
Q&A
ATTEND THE SPEED MEET!
To View ASTC 101 again:
www.astcweb.org/events
About ASTC:
[email protected]
www.astcweb.org
217-321-0337
Trial Consulting 101
ASTC 2017
Instructors:
Jeremy Rose, Ph.D.
National Jury Project
Minneapolis, MN
Leslie Ellis, Ph.D.
DecisionQuest
Washington, D.C.