Friday, August 15, 2008

Pre-Trial Attitude Check


The Cool Justice Report
Aug. 15, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Part Two
Of An Ongoing Series

Our most recent installment discussed the increasing role of jury consultants in complex trials. Step one in the process involves the attitude survey. It allows the lawyer to develop a detailed sense of how potential jurors in a locale are reacting to issues in a notorious case. Unlike the typical telephone poll, like those used in political campaigns, an experienced consultant will spend time preparing and analyzing responses to a detailed questionnaire. Following that the consultant will speak to each person surveyed, in an effort to assemble as much data as possible.

Using the data derived from an attitude survey, the consultant then works with the litigation team to develop and refine case strategies, early in litigation. The case details are then reduced to summaries, which can be presented in a group setting. The focus group and mock trial are an opportunity for the lawyers to present troubling issues to a carefully screened panel. The feedback from these proceedings can dramatically alter a lawyer's anticipation of what will or will not be convincing.

The consultant generally will advertise in local papers, in a very generic fashion, to assemble a group of potential candidates. Ads may simply ask anyone interested in learning more about the jury system to call a phone number. Detailed screening questionnaires are submitted to the respondents.

After culling out those who would not be fit for jury selection, the consultant conducts a telephone interview, similar to the voir dire process employed by lawyers. The experience of the consultant is key to success at this stage. From this group 10-20 "jurors" are selected. The participants are paid a reasonable stipend for their time. Confidentiality is an important pre-condition to selection. Although there is no guarantee that a participant may not breach that confidentiality, the consultants I have used agree that most carefully screened participants take their role seriously and honor the promise not to reveal what they have learned.

The focus group usually looks at the case in summary fashion. In contrast the mock trial may involve more complicated presentations, including actual witness testimony or review of video taped depositions. Unlike the attitude survey, which generally involves discussion of information already in the public domain, focus groups and mock trials often reveal information not yet known to the opposition.

Trial lawyers are called upon to make difficult strategic decisions: should a defendant testify in a criminal case: is a particular piece of evidence so inflammatory that jurors will not be able to get beyond it; which of several alternate theories possess the greatest chance for success. By exposing these issues in either format, the consultant gains detailed feedback. That feedback allows a reasoned and educated decision by the litigators.

In a capital case we defended, a pornagrapher was charged with the beating death of his paramour's 13 month old baby. Autopsy photos of the infant appeared grisly. The photos displayed a condition known as lividity, as a result of the pooling of blood after death.

An initial view left us with the concern that jurors would mistakenly believe that this natural post mortem process was evidence of physical abuse. Our concern was jurors would be unable to get beyond the initial dramatic impact from the photos. Our mock trial revealed that our jurors fully expected to see graphic photos, knowing the nature of the allegation. They were able to focus on the several conflicting theories of defense and provided invaluable guidance. As a result not only was the client's life saved, we succeeded in negotiating a reduction of the charge to manslaughter.

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,

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