Tuesday, August 12, 2008

Jury Consultants And Other Trial Prep


The Cool Justice Report

Aug. 12, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com

Part One
Of An Ongoing Series

Diligent trial preparation is the key factor to success for a trial lawyer in the courtroom.

The late Ted Koskoff of Bridgeport, a legendary trial lawyer and founder of the National Board of Trial Advocacy, was fond of saying that effective trial work was 10 percent inspiration and 90 percent perspiration. Unlike Denny Crane and the rest of the Boston Legal cast, good trial lawyers can't pick up a new file in the morning and be ready to effectively present the case in the afternoon. In addition to extensive research of the legal issues involved, determining an effective strategy to present the strong points of a case and to rebut its weaknesses is essential.

One of the tools available to us is the use of jury consultants. Traditionally thought of as providing assistance in the actual selection of a jury, these consultants can play a greater role in strategizing the case. This is usually high stakes legal warfare. Consultants are used in not only notorious criminal cases but significant personal injury and malpractice cases as well. The costs associated with retaining a jury consultant can be substantial and most times beyond the pocketbook of the lawyer in the average case. In those cases where the litigation budget will permit, input from a consultant can be invaluable. Generally these are lawyers with significant training in psychology and sociology. They serve the role of information collectors, organizers, social scientists, and facilitators.

The consultant works as part of the litigation team and as such his or her work is generally protected by what is known as the attorney work product privilege; that, the work a lawyer does in preparation for a trial is generally protected from disclosure to the other side.

In the sensational civil or criminal case flushing out public sentiment among the potential jury demographic is the first task, by conducting attitude surveys. Potential "jurors" must be screened to fit the anticipated local juror profile. A good jury pool for this process totals about 30. Confidentiality is critical as they will be exploring issues unique to that case without fear of disclosure to the press or the opponent. Next, the topic must be refined, and issue specific questions prepared. Once the survey is completed the data must be collated and interpreted for the lawyer.

The attitude survey is eventually followed up with a mock jury trial. A total of 15 to 20 people is selected, once again attempting to match the profile of jurors in that locale. Unlike the attitude survey, this is an actual live presentation involving the lawyers. Confidentiality is crucial at this stage. A case can be presented in part or in its entirety, but in summary fashion. Often critical exhibits are displayed to gauge juror reaction.

Mock trials focus on preparing a witness for actual testimony at trial, or floating various strategies to see which is more appealing to potential jurors. The proceedings are usually held at a research facility that allows the lawyers to watch from behind a two-way mirror as the consultant, now facilitator, guides the group in a focused discussion of what has just been presented. The same case can be presented to separate groups using different strategies with each. Attitudes toward the lawyers, their presentation, witnesses and controversial exhibits can be explored.

With this luxury, the trial lawyer can make a well-informed choice between competing strategies. For those who don't have an "O.J. Simpson" budget the gut instincts and trial experience of the lawyer has to suffice.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com

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