Deliberations

Hmmmmm... Should I Facebook Friend the Defendant?

Without question, the numbskull of the week award goes to Jacob Jock (seriously, that’s his name).  The 29 year old juror was dismissed after he attempted to Facebook friend the defendant (a young woman) during jury selection.  He was eventually selected for the case.

The defendant told her lawyer, who told the judge.  After his dismissal, Mr. Jock decided to claim that this was his plan all along (again, on Facebook).  He wrote:

“Score ... I got dismissed!! apparently they frown upon sending a friend request to the defendant ... haha.”

Shockingly, Judge Nancy Donnellan was none too pleased.  She found him to be in criminal contempt.  However, Mr. Jock had evidently still not learned his lesson.  Believe it or not, he showed up late to court for his arraignment, his trial and his sentencing.  

Mr. Jock was finally sentenced to three days in jail for contempt.  I actually think he got off lucky.

If you are interested in learning more about the plethora of information social media sites carry on the web, make sure to check out ASTC’s upcoming webinar called on February 29^th at 2:00pm est.  It is presented by Dr. Amy Singer and is entitled:

"TWEET ALL ABOUT IT! EXPLORING THE USES AND APPLICATIONS OF SOCIAL MEDIA: FROM DISCOVERY, TO PRE-TRIAL TO THE COURTROOM”

This presentation is free for ASTC members and $50 for non-members.  Contact the ASTC office for more information or to RSVP at: astcoffice@astcweb.org

Blogger: Matt McCusker

 

What Great Basketball Coaches Can Teach Us About Trial Prep

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents.  I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court.  Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots.  If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents.

Like many of the best coaches, Dean Smith knew that effective preparation often meant stacking the deck against oneself in practice.  This mantra also holds true for trial preparation.  It is easy to assume that a motion will be won to exclude damaging testimony or evidence, but what if the judge decides in favor of your opponent?  What if opposing counsel is more capable than first anticipated or an expert witness handles his or her deposition swimmingly?  

In my opinion, the best planning must assume that everything will go very well for one’s opponent.  In witness prep, this means helping those who will testify by practicing difficult cross-examination questions with great intensity.  In mock trials and focus groups, err in favor of the opponent when it comes to planning case presentations.  In mediation and negotiations, have a strategy that realizes the other side (rightly or wrongly) may be even more confident in their case than you are in yours.

Ben Franklin famously said, “An ounce of prevention is worth a pound of cure.”  While he was actually talking about house fires, the idiom has lasted for centuries for a reason.  There is an exponential return on carefully considered preparation that imagines and practices a variety of potential negative outcomes.  By imagining your opponents with brooms in their hands, you will be sure to arrive at the game with a perfect fade-away jump shot. 

Blogger: Matt McCusker

 

Don’t Call Me Fluffy: One Perspective on Mock Trials

As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community.  At times, trial attorneys question the necessity and even the validity of some trial consulting techniques.  Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work.

In my opinion, this is not an accurate description.  While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing all collected data is crucial to providing well-founded recommendations.

Sometimes, trial attorneys have been encouraged towards “do it yourself” mock trials or have attended workshops where abbreviated and truncated litigation focus groups are demonstrated by their faculty.  This has potentially left an impression that these demonstrations, often using actual case content, are templates for valid and reliable pretrial jury research.  However, these demonstrations do not show the detailed analysis that most consultants give the data they collect.

Typically in mock trials, 3 or more panels of jurors have been recruited and subject to extensive background questionnaires to get a sense of their attitudes, beliefs and life experiences prior to hearing about the case.  Next, these participants are shown detailed case presentations with exhibit books and asked who they favor throughout the day (Plaintiff?  Defendant?  Is there proximate cause?  Etc.).  Then, armed with a treasure trove of information, litigation consultants can analyze the results and search for associations between opinions/experiences and case leanings.  Both qualitative and quantitative analysis are often used to glean the most useful information.

Unlike some services offered by litigation consultants, mock trials fall into a very specific set of social science standards and practices.  Careful research methods must be maintained to ensure that clients are provided with  quality results.  According to the American Society of Trial Consultants Small Group Research Practice Guidelines, when discussing mock trial research with clients, consultants shall:

(IV.D.) “Communicate to the client the research methodologies employed in the study design, juror-participant recruitment (insert footnote), data analysis and reporting of research results.”

Accordingly, I believe it is very important to explain the mock trial process to clients so they understand what data is being collected and how it is being analyzed and interpreted.  Without this communication, clients may be confused about the reliability and validity of the recommendations that are reported.  For example, if certain questionnaires that are filled out by jurors are never really analyzed, I would be uncomfortable presenting a report that suggests these questionnaire results were part of the report development.

In my opinion, strong mock trial recommendations should be the result of carefully analyzing all of the information gathered.  While litigation consultant expertise/experience is also a vital component, I cannot allow myself to leave any data by the wayside.  Instead, everything from initial questionnaires to exit interviews serve as important pieces of the puzzle that eventually transform into recommendations.  Otherwise, clients may actually be purchasing the “fluff” the detractors try to say this field is selling.

Blogger: Matt McCusker

 

The Dangers of “Sending a Message” Through Damage Awards

Colleen and Robert Middleton suffered an unspeakable tragedy.  In 1998, their 8 year old son (Robbie) was allegedly set on fire by a sexual predator named Donald W. Collins.  While he survived the initial attack, Robbie Middleton died 13 years later of cancer that originated from the skin grafts utilized to treat his burns.

The criminal case inexplicably disintegrated (read more about it here) , so the Middletons sued Mr. Collins for wrongful death.  After seeing videotaped testimony from the now deceased Robbie, a very emotionally charged jury found in favor of the plaintiff.  However, they decided to “send a message” by awarding a very, very large award.  $150,000,000,000.00.  That is $150 billion if you lost track of the zeros. 

It is easy to feel deep sympathy for the Middletons, but this jury award has potential ramifications that reverberate beyond a convicted child molester’s bank account.  Massive jury awards create big news.  Unfortunately, people often don’t read the details and only see the headline: “Parents awarded $150 billion seek justice for son,” “Texas parents hope $150 billion award prompts change,” and “Jury awards record $150 billion to family of burned boy.”    

The Middleton’s jury was not the first to do this, but it does make prior examples seem downright reasonable in comparison.  In 2009, a Florida jury awarded $330 million to the mother of a child that was killed by a drunk driver.    Across the country, there are many examples of criminals losing civil suits (especially involving the deaths of children) and being told to pay hundreds of millions of dollars.  Sadly, everyone knows that these are debts that will never be repaid. 

These huge damage awards offer eye-catching headlines and vindication, but little else.  In fact, the headlines rarely give the impression that this was a symbolic award that will never be paid (see above).  Instead, they tend to stoke the ire of those who believe that artificial damage caps should be legislated.

The law carries the unenviable burden of applying monetary value to life, pain and suffering.  Juries tasked with this face an agonizing calculus.  Huge awards that have no root in reality don’t help, they only serve to cloud waters that are already murky.

Blogger: Matt McCusker

 

Religion, Politics, Sex (and Sports?): Remembering the Power of Emotions

In a recent Psychology Today blog, Sam Sommers explores why Penn State fans would hold a pep rally on Joe Paterno’s lawn despite allegations suggesting he turned a blind-eye towards child rape.  It is easy to dismiss these people as rabid football fans who have become soft in the head after years of keg stands and beer funnels.  However, a closer examination suggests that this behavior is something we are all capable of. 

There is a long history of sports fan delusion.  One can still see Atlanta Falcons fans who wear Michael Vick jerseys despite his dismissal from the team years ago for running dog a fighting ring.  Tiger Woods is still the most popular player on the tour.  Steroids sullied baseball’s reputation, but the offending players are still idolized.  Sports fans’ emotions can trump astoundingly bad facts.

Before the non-sports fan becomes too lofty in his or her judgment, politics has established the same double-standard.  How many Bill Clinton supporters believed the Monica Lewinski scandal was a witch hunt, but still readily attacked Christopher Lee,  Herman Cain and Newt Gingrich for accused infidelity?  How many Republicans sat mute while George Bush rapidly raised the federal deficit, but now carry a rallying cry against Barack Obama for reckless spending?

This list attempts to illustrate the human capacity to make facts fit our particular worldview.  As the research supporting cognitive dissonance suggests, people will utilize amazing shifts in thinking to avoid conflicting beliefs.  The more committed a person is to a principle, the further they will go to avoid rejecting it.

In law, it is easy to become entrenched in the facts of a case.  The rule of law establishes a concrete methodology for deciding disputes.  In a purely rational world (note that I did not say a “perfect world”), logical argument would always be the weapon of choice.  However, we live in an imperfectly emotional world, where logic can easily be trumped by emotional response.

Given that Skynet has not yet gained self-awareness and created a robot-dominated planet (despite the Terminator prediction of 04/19/2011 @ 8:11 pm), our attempts to convince an audience must speak loudly to potential emotional motivations.  Mock trial research frequently demonstrates that the case with the best facts can easily be the loser if proper storytelling is not utilized to motivate jurors.

Judges, arbitrators, mediators and jurors will not be as emotionally connected to your case arguments as Penn State fans are to Joe Pa.  However, they will still have significant investments in particular storylines and emotional appeals.  The trick is to deduce what these storylines are before creating your strategy.  Overly-complex factual arguments will impress a law professor, but may land with a thud in the real world.  Unless, of course, you have already used more simplistic emotional motivation to create a strong desire within your audience to weed through the complexity.

There is an old adage suggesting we avoid the discussion of religion, politics and sex in mixed company.  These topics are taboo because they can inspire fervent emotion.  They often cause people to reject logic and maintain an entrenched belief system.  In worst-case scenarios, these discussions can result in physical blows. 

While we look upon the Penn State fans on Joe Paterno’s lawn as misguided and clouded by sentiment, we must also respect their dedication.  Rightly or wrongly, who among us would not want such a motivated crew fighting for our defense?

Blogger: Matt McCusker

 

IN DEFENSE OF LITIGATION CONSULTING...

Every so often, the field of Trial Consulting comes under attack.  Despite our 35 year history, some in the legal field continue to believe that the use of consultants is equivalent to buying car seat warmers.  Sure it feels good in the winter, but warm butts have nothing to do with getting you where you want to go.

Everyone has the right to their opinion.  However, things change dramatically when a judge or prosecutor tries to utilize the law to impose this opinion on parties to a case.

Last year, Sonia Chopra and I (Matt McCusker) wrote an Amicus Brief for an appeal being heard in front of the Iowa Supreme Court.  We were prompted to act when a prosecutor (and judge) prevented a criminal defendant from utilizing his own legally attained funds to hire a consultant to work with his defense team.  According to the State, this service was a “luxury” that the defendant didn’t have a clear right to.  Our brief outlined numerous arguments that questioned this perspective.

Recently, the accused Fort Hood shooter (Major Nidal Hassan) encountered opposition from the prosecution when his team requested funds for help in jury selection and a media analysis exploring how Mr. Hassan has been painted in the press.  In fact, one of the prosecutors suggested that a jury consultant would be doing “tasks performed routinely by attorneys around the world every day.”

Rather than focusing on the problems with the prosecutor’s statement (e.g. lack of jury systems around the world, limited experience many attorneys have with jury selection, unique training consultants have in media analysis and voir dire development, etc.),  I take issue with the implication that consultants do not bring significant added value to a legal team.

The term “consultant” can be defined as a specialist who provides expert advice.  Doctors regularly ask for consults from specialists.  Most major companies hire management and marketing consultants to provide recommendations.  Are these extravagant luxuries?  Should doctors just assume an expertise in everything?  Should a CEO simply develop his or her own marketing plan or implement a homegrown HR process?  Most would think not.

However, popular use of a service is not proof of its efficacy.  Instead, we should turn to the free-market.  The field of Trial Consulting has exponentially grown in use over the last 30 years.  Similarly, the rates charged by successful consultants have risen significantly.  In a capitalist system, a product’s price tends to correlate with its perceived value.  If decade after decade, more attorneys, municipalities and corporations are willing to pay more money for litigation consulting, the value is proven.

 Some may agree that Trial Consulting is valuable, but oppose government-funded consulting to assist criminal defense teams.  This is a valid point.  However, they should also consider that governments across the country (Federal, State and Local) regularly utilize the services of Trial Consultants during high-stakes civil litigation.  So, tax dollars are already going to consultants for the most important government funded civil defenses.  Why should money not also go towards the most important government funded criminal defenses?

Blogger: Matt McCusker

 

Debating “.45-caliber lead cocktails” Instead of Death-Qualified Juries

Florida State Representative Brad Drake recently introduced a bill that would change the State’s death penalty options from lethal injection, to firing squad or electric chair.  Apparently, this would somehow speed-up the infamously long death penalty process.  Drake noted:

“I say let's end the debate.  We still have 'Old Sparky.'  And if that doesn't suit the criminal, then we will provide them a .45-caliber lead cocktail instead...  If it were up to me we would just throw them off the Sunshine Skyway bridge and be done with it…  In the words of Humphrey Bogart (sic), 'Frankly my dear, I don't give a damn.'"  (The "sic" is due to his misquote.   Clark Gable said that.)

Deliberations does not take a position on the righteousness of the death penalty.  However, it’s fair to suggest that the most important problem with capital murder trials is overlooked by the media, the public and (obviously) our elected officials: the dangers of death-qualified juries.

Typically, the death penalty debate is couched as a moral fight.  There are those who believe that the ultimate crimes (aggravated murders) deserve the ultimate punishment.  In fact, the U.S. Federal Government and 35 states offer the death penalty as a potential sentence.  According to Gallup, national support for the punishment has not dropped below 60% since the early 1970’s (peaking at 80% in 1995). 

Conversely, a vocal minority has suggested that taking a life should be outside the State’s reach.  This group blends an interesting coalition of those who hold traditionally liberal stances with those who are cut from a Libertarian cloth.  Either way, their quarrel comes down to a moral opposition to the government’s right to impose executions.  The most common argument cites the potential for the death of an innocent person (which is possible given the 15 exonerations by DNA evidence of death row inmates.)

Most people have an opinion on this issue, but they seldom bring up jury selection.  Death-qualification is a process that forces the judge to remove potential jurors for cause if the court believes that the juror could not impose the death penalty or would be highly influenced by it.  In effect, anyone who opposes a death sentence can’t sit on a jury that decides one.  Many attorneys view the death-qualified jury as a significant advantage for the State because it removes a large number of people who might be more open to the defense’s perspective.

In Lockhart v. McCree (1986), the Supreme Court found that the Constitution does not prevent death-qualification.  The Court did not believe that “opposition to the death penalty” created a “distinctive group” whose exclusion would endanger a “fair cross-section” of the jury pool.  It should be noted that according to Gallup, 75% of the public was in favor of the death penalty in 1986. 

Today, 61% of Americans favor the death penalty.  This also means that 39% oppose the measure.  Moreover, this proportion changes greatly as one moves from jurisdiction to jurisdiction.  In many urban populations, it’s safe to say that the majority is likely opposed to the death penalty.  This would suggest that most of that community would be unqualified to answer the public’s gravest question: life or death for a fellow citizen. 

The potential side effect of removing fruitful debate from our most dire deliberations is troubling.  Our jury system depends on a robust discussion from a random (yet unbiased) cross section of the community.  Voir dire is intended to eliminate prejudice, not stack the deck.  If the death penalty cannot be decided by a fair jury, then we must ask ourselves whether it is worthwhile by our measure of law (not our measure of morality).

Representative Drake is focused on the wrong question.  Method of execution is simply a means to determined end.  Debating the morality of the end is equally wasteful, as two people cannot negotiate morals.  Instead, the question should be focused on integrity of the process.  Whether supporting or opposing the death penalty, we all agree that these cases deserve the most impartial jurors available.

Blogger: Matt McCusker

 

Defending Corporate America In Court: Bigger Is Not Better

As Wall Street zombies block the Brooklyn Bridge, the American public is struggling with an acute case of Dissociative Identity Disorder.  (*Note: Possibly, my best opening line ever.)  We don’t trust big corporations, but we need them to create jobs.  We don’t trust big government, but we need it to protect us from the corporations.  However, the many bailouts since 2008 have suggested there may be some connection between big government and big corporations (he said sarcastically).  Small local companies seem to have genetic immunity to our vitriol, but who can tell what is small anymore (see Starbucks’ 15th Ave Coffee & Tea).

The public (a.k.a. your jury), seems to be going through a phase where bigger is not better.  As a result, companies will often be entering the courtroom carrying very heavy and expensive baggage.  (Think Eva Gabor in Green Acres.)  This presents attorneys who represent large entities with a quandary: How do I overcome the “bigger” bias?

Marissa Alkhazov sets the stage in her blog entitled “The Top 5 Misconceptions Juries Have About Insurers.”  Insurers are like traffic cops, no one likes them until they need them.  The media caricature of an insurance company is often the most vivid image in a juror’s mind.  This is a problem that also plagues other industries like banks, oil companies and big pharma.  In theory, jurors should dismiss these mental images.  In reality, that is asking the impossible.

The first step in combatting this bias is voir dire.  Those whose judgment is particularly vulnerable to emotional clouding should be spotted and dismissed for cause.  (Why waste a peremptory?)   This can only be accomplished through carefully designed and executed questioning with follow ups. 

Secondly, the company must create a connection with the jury.  Many attorneys use blunt-force humanization.  For example, “This Company was founded in 1902 by Cletus Goodfellow with a few dollars and a dream.”  However, mock trial research often demonstrates that jurors see this is as an overt attempt at manipulation.  Instead, the best humanization comes from an actual human: a well-prepared witness.  Creating abstract emotional connections with a company brand is very challenging in court.  Creating a sympathetic connection with a person testifying on the stand is much easier.

Finally, focus on the story, not the characters.  If framed appropriately, jurors will be discussing the questionable actions (not actors) on the other side.  Your narrative and themes will keep people centered on the job of a jury: to decide a lawsuit, not to judge a beauty pageant.

Blogger: Matt McCusker

 

Legalese After-Math: When Jurors Forget to Carry the One

The Indiana Court of Appeals recently ruled that a plaintiff was not entitled to several hundred thousand dollars that the jury allegedly thought it was awarding (but didn’t).  According to a juror’s affidavit, the group became confused during the deliberation process and accidentally lowered the dollar figure.  In addition to being bewildered by the jury instructions and verdict form questions, the jury had to request multiplication help from the judge in open court.  As a result, they actually awarded $128,172, instead of the $464,472 that was claimed to be the intended award. 

Some might view this as another opportunity to slam the intelligence of juries or make a wisecrack about those who are not smart enough to get off jury duty.  After all, who could possibly misunderstand something as simple as a verdict form?

However, those of us non-attorneys who actually see verdict forms might have a different response.  Jury instructions and verdict forms are written by experts in law that are fluent in legalese.  Often, attorneys will battle over small wording changes that are vital to the legal arguments, but far above a typical juror’s head. 

This is not to suggest that the jurors are stupid.  I’m sure that a juror who works in nuclear science or car mechanics would be able to write instructions that would easily perplex the average attorney.  The issue is experience, not intelligence.

Much like speaking a second language, it is easy to take the meanings of words and phrases for granted.  Litigators can attest that even something as simple as the burden of proof can often be confused by jurors. 

There are no statistics that accurately convey how frequently juries come to verdicts based on misunderstandings of the verdict form or instructions, but anecdotal mock trial evidence would suggest a much higher rate than anyone would be comfortable with.  The question is: What can be done to help?

The answer is to start working on the verdict form early.  As this article points out, attorneys often focus on the jury selection with great intensity and leave the verdict form as a loose end to be tied.  Great thought must be put into the verdict form, but this is not strictly about legal strategy.  It is also about simplicity.

Much like speaking to a Spanish 101 student, time and explanation are vital.  Try to use as many basic words as possible.  When big words are required, be sure to explain the meanings with little words that the student already knows.  Most importantly, don’t add complexity where it is unnecessary.  The result will only be frustration and eventual exhaustion.

Gracias.

Blogger: Matt McCusker

 

Doggie Witness Prep (Coming To A Courtroom Near You?)

Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father.  Yes, a dog sat in the witness stand.  Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying.  At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers.

While this is the first instance of “comfort dog” use during testimony in New York State, (as this article outlines) the practice has actually been happening across the country with child witnesses for some time (Arizona, Hawaii, Idaho, Indiana, etc.).  In this case, Rosie and the witness spent five weeks bonding (and prepping) prior to the trial.  The goal of the training was to help the victim reduce her anxiety about facing her father and being questioned on such painful memories in front of a courtroom full of strangers.

Not surprisingly, the defense attorney was up in arms about the dog’s presence (and is appealing).  It is certainly a valid point to suggest that the presence of a dog could be unduly prejudicial.  Would dog lovers view her more favorably?  Dog haters more unfavorably? Is it possible that a witness could lie more easily with a comfort dog present?  How would the dog impact opposing counsel’s cross examination?

These are valid questions, but the opposing response is more persuasive.

In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault was allowed to carry her doll to the stand because the court ruled the calming effect would aid in more accurate testimony.  A similar ruling occurred in Washington [State v. Smith 119 P.3d 411 (2005)] when a teddy bear was allowed to venture into the witness box.  In those cases, the defense unsuccessfully argued that the presence of a psychological security blanket would impede cross examination of the children.

Anyone worth their salt at witness prep will tell you that anxiety is one of the top barriers to effective testimony.  Much of what litigation consultants do is help in reducing witness anxiety so the truth can be more effectively presented on the stand.  Why would the reduction of anxiety in a child be a bad thing?  Further, service dogs for people with physical/mental handicaps have long been allowed in courtrooms.  Has the presence of these dogs created unjust verdicts?

Most importantly, the “comfort dog” accommodation has primarily been utilized with children.  A child witness has a special status with the court, which can be seen in states that allow closed circuit or videotaped testimony for child victims.  As this UST Law Review notes:

“…our Supreme Court  promulgated the Rule on Examination of A Child Witness  which acknowledges the special concerns of child witnesses that need to be addressed while testifying before criminal, civil, legislative, or administrative proceeding…  the main objectives of the said Rule are to ‘create and maintain an environment that will allow children to  give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of the truth.’”

Obviously, the rules of the game change when a minor is giving testimony.  Proper voir dire should spot those jurors who would not be able to set aside the influence of having a dog (or a doll, or a teddy bear) sitting with a child on the stand.  While there is some danger of prejudicial effects, the value of truthful testimony from a calm mind (and reduced emotional damage to the child) far outweighs the potential risk.

Those interested in utilizing comfort dogs in court can check out a sample brief here.

Blogger: Matt McCusker

 

A Juror Reminds Us That The System Works

Last week, Ed Fletcher of the Sacramento Bee wrote a truly insightful piece about his jury service on a criminal trial. Not surprisingly, the story got little attention from media outlets around the country.  (Apparently, only incite-ful jury pieces need apply.)  The title of the column was “I voted to send another brother to prison.”

Mr. Fletcher is a black man (as was the defendant).  Mr. Fletcher is a journalist.  Mr. Fletcher was leaning towards a not guilty verdict at the trial’s opening.  Most importantly, Mr. Fletcher was the foreperson.

To some prosecutors (and armchair lawyers), this would be a situation that demanded an immediate plea deal.  However, that decision would have been based on an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Worse, it would assume that the prosecution’s presentation would be so inept and disjointed, that it would be unable to overcome any juror predilections.

Instead, the State chose to present a compelling case and let the jurors decide.  As Mr. Fletcher noted:

“The gunshot residue was big, but no piece of evidence offered the clear cut satisfaction supplied by ‘CSI,’ ‘Bones,’ ‘The Closer,’ or ‘Criminal Minds.’ In our real world case, witnesses' views were obscured by darkness, the handgun had no incriminating finger prints and the (video) footage was crap.”

He continued…

“When I entered the deliberation room, my gut told me that we were headed for a hung jury. But as we kept reviewing evidence, re-reading the jury instructions on the law and talking about our positions, more of the jurors began to reach the same conclusion: Boyce fired the gun.”

Despite the harrowing cries of incompetence from the public and blogosphere, this is the typical process that justice follows in our system.  As this National Center for State Courts research indicates, hung juries are rare.  They are the exception, not the rule.  

After the trial, Mr. Fletcher did research on the newly convicted defendant.  He discovered that the man crying like a baby in court was no angel.  This put Ed Fletcher’s mind at ease:

“Today, I feel much better about our collective decision. Freed from court instructions not to do any research, I now know that Boyce's record stretches back to 1999 and includes a murder charge that was dropped in 2003, two separate plea deals on spousal abuse and a 2005 plea deal on an assault with a deadly weapon charge.”

I would argue that this is the perfect example of our system at its best.  Mr. Fletcher’s eyes presumed the defendant’s innocence from the start.  His conviction was based on the prosecution’s presentation of evidence of the crime, not an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Sadly, it is the exception, not the rule that most of us remember.

Blogger: Matt McCusker

 

Legal Codes, Moral Codes & Nuclear Codes: Casey Anthony's Radioactive Fallout

(Blogger’s Note: I am reticent to write a blog about the same subject two weeks in a row.  However, an event like the Casey Anthony acquittal is an extraordinary occurrence.  It has garnered a sustained media frenzy that can only be likened to lowering an elephant into a piranha tank.  Moreover, rarely have we seen an episode that seemingly shakes the American public’s faith in the jury system.  As a result, I am centering on Ms. Anthony’s case again in this blog.  Next week: YouTube’s most popular furry animal video.)

Watching cable news, the closest comparison to this trial (by consensus) is the acquittal of O.J. Simpson.  However, imagine explaining this analogy to a man who had been trapped on a desert island for the last 10 years (let’s call him Mr. Robinson).  Mr. Robinson clearly remembers the O.J. trial.  It was the public downfall of an American hero.  A Hall of Fame football star who was building an acting career was accused of a gruesome double-murder in the middle of one of Los Angeles’s wealthiest neighborhoods.  Complete with an on-air Ford Bronco chase and an all-star legal team, this trial (and acquittal) was hard for anyone to forget.

“Tell me about Casey Anthony!” Mr. Robinson asks you with great anticipation.  “She must be a celebrity who did something really bad to merit ‘O.J. level’ attention.”  Then (almost embarrassedly so), you must explain to Mr. Robinson that Casey Anthony was simply an unemployed woman living part-time with her parents who was accused of killing her young child in a middle-class Orlando suburb and not reporting it for a month.  She was not famous and in the terrible annals of child murders, this was not a remarkable cause of death. “Oh.” Mr. Robinson replies quizzically. You add enthusiastically, “There were photos of her dancing in a night club!” Mr. Robinson thinks for a moment and then adds, “Times have certainly changed since I have been away.”  You have no retort.

On the afternoon of July 5, 2011 a metaphorical nuclear bomb exploded in the State of Florida.  Hyperbole, you say?  Probably.  However, it’s difficult to describe the massive reaction to such an unexpected verdict in the Anthony case.  The vitriolic fallout from the public that has arisen from this verdict has been something that caused massive damage to the public’s faith in the justice system and will likely linger for years.

In fact, it could be argued that the greatest victim of the Casey Anthony trial (obviously second to Caylee Anthony) has been the reputation of the American jury system.  Public outrage (fueled by a litany of former-prosecutor TV talking heads) has declared jurors too stupid to be trusted with important decisions.  Debates have raged on the need for more judiciary discretion or “professional jurors.”  If mental deficiency was not the cause, many media experts have suggested that the dreaded “CSI Effect” blinded the jurors (see here for my blog obliterating the CSI Effect).  Without doubt, the sales of pitchforks and torches have skyrocketed this July.

It is here that we come to a crossroads between our legal code and one’s moral code.  The legal code is a set of rules that we live by.  The legal code says that the prosecution must prove its case beyond a reasonable doubt, and Casey Anthony has no requirement to even put up a defense.  One’s moral code says that any mother who doesn’t report a missing child is lacking and likely guilty of wrongdoing.  One’s moral code may wish to punish aberrant behavior (like nightclub dancing) or perpetual lying and assume that these are symptoms of murder.

History has shown us the hazards of blending one’s morality with a justice system. Examples include:  feudalism (land owner morality), monarchy (the king's morality), the inquisition (the church’s morality), fascism (the dictator's morality) and McCarthyism (the witch hunter’s or lynch mob's morality).  

Our system is not perfect, but we tie a blindfold around Justice’s eyes for a reason.  It helps us to find a result determined by law, not morality.  In fact, a rising number of countries are actually turning to the jury system in criminal matters because of rampant judicial corruption.  Hopefully, one murder trial in Florida will not be enough for others to rethink a system that the rest of the world is learning from.

Blogger: Matt McCusker

 

The Real Danger from Casey Anthony's Trial: Scary Scientific Precedents

A cause of death that cannot be determined by the State’s medical examiner, but can be asserted on the stand by an anthropologist who has never done an autopsy.  The morphing of a projected child’s photo into a picture of her skull.  The description of a colorless decompositional  fluid (which is typically black).  Air samples that contain "the smell of death."  A phantom image of heart sticker that “disappeared” before the examiner could return to photograph it.

These are some of the worst examples of “evidence” that the State has used to make its case against Casey Anthony.  Most of these forensic techniques have never been allowed in any trial in the U.S.  Prior courts deemed them inadmissible because questionable scientific analyses should not be presented to laymen jurors (especially when a death penalty sentence is on the line).  The average juror does not have the expertise to differentiate between “good science” and “junk science”, so the court must help them by excluding dubious evidence.

For example, the “lie detector” or polygraph machine has been around for over 70 years.  Despite being regularly featured in crime shows and suspense movies, it is still generally inadmissible in our justice system.  This is because the machine is too unreliable and jurors will make more of polygraph results than can be scientifically substantiated.

 Chief Judge Belvin Perry is a very experienced legal mind.  He made his name as a prosecutor and actually brought the first woman to death row in Florida in nearly 150 years ( Judy Buenoano).  In fact, he attended the execution, so Judge Perry knows what the stakes are in capital murder cases.  This is why I have been so surprised by some of his rulings.

Casey Anthony very likely had something to do with her child's death.  However, I believe this case may well be overturned on appeal based on the reckless use of overreaching evidence.

Despite this, the alternative possibility is even more disturbing.  Once a technique has been admitted as evidence (especially in a case as high profile as Casey Anthony’s trial), it has a much greater chance of being allowed in other trials.  If this happens, the ramifications of this trial will span far beyond the salacious intrigue that has captured the nation.

Blogger: Matt McCusker

 

The World's Most Expensive Real Mock Trial Points to Simplicity

“The problem was with some of his explanations. It reminded me of a little kid who gets his hand caught in a cookie jar. He says, ‘Mommy I wasn’t taking the cookies. I was just trying to protect them and to count them.’”

— Richard Kling, professor at Chicago-Kent College of Law who watched much of the trial, on Blagojevich’s testimony.

The jury is back and Blago is guilty on 17 counts.  The great State of Illinois can now proudly list four of its governors as convicts.  This begs the question: What changed the second time around?

I would argue that the first major factor was the apparent lack of a holdout juror.  The individual who held up the panel at the first trial was lauded by some and called a kook by others.  It takes a particular personality to stand up to a group and hold one’s ground, however, there is also a fine line between impassioned defender and obstinate fruitloop.

In prior posts, I have made the case that holdouts are most often created by confused and overly detailed case presentations.  It is much more difficult to stand against the group when the majority is well-armed with a solid understanding of the facts, the story and the law.

So, I believe Blago (part one) was the world’s most expensive mock trial.  In Blago (part two), the prosecution presented a far more “streamlined” case that did not get hung up on the tiny details.  As this article outlines, the prosecutors seemed to have learned from their mistakes and took a “less is more” approach.  This was a smart move and resulted in a storyline that kept focused on Blago’s actions. 

"It's all part of the streamlining decision. We're gonna keep it straight forward. We're going to keep it simple, we're going to go to the heart of the matter. Let's talk about selling the Senate seat, the sexiest stuff right up front so the jury makes up its mind early on that this guy is a crook, and the rest of the stuff will sort of fall into place behind that," said Prof. Leonard Cavise, DePaul college of Law.

Having facilitated many mock trials and focus groups, I can attest that this is the most common lesson learned from trying a case in front of mock jurors.  Attorneys often find that “if everything is important, then nothing is important.”  Unfortunately for Blago, the same was not true for his defense storyline. 

Blogger: Matt McCusker

 

Juries get it right 95% of the time?

As a litigation consultant, it has been my pleasure to work with judges across the country to help spread the word about the benefits of well-designed voir dire that truly unearths bias.  However, I have also run into friendly debates with judges who are not thrilled with my line of work.  These individuals typically feel that the use of professionals to search for bias in potential jurors is more often utilized to manipulate the system, than to protect it.

The evidence that I most often hear in support of this perspective is that (with or without litigation consultants)…

“Juries get it right 95% of the time.”

This has become a very common turn of phrase and is often cited as proof of our legal system’s solid design.  However, I would like to ask a few questions that put this gem of wisdom on the hot seat.

1)     Who decides the definition of right?

I sincerely believe that every case with a verdict has at least one side which believes the jury did not get it right.  By my math, that puts us somewhere around 50%.  If we add in all of the verdicts that anger both sides and multi-party lawsuits, I believe our number of discontent rises even further. In fact, I would suggest that a significant majority of parties (and their attorneys) think the jury got it wrong.

 2)    Where is this 95% statistic coming from?

So, if it is not statistically likely that this 95% number comes from the parties or their attorneys, where does it come from?  My best guess is that this phrase originated with the group that most often uses it: our judges.  No doubt, as neutral observers of the entire process, no one else would have the required knowledge to offer such an opinion.

 3)    What does it mean when the most powerful person in the courtroom thinks juries get it right 95% of the time?

Here is where I get a little nervous.  The vast majority of my experiences with judges have been great.  However, it is disconcerting that so many judges’ opinions about the case are in line with the juries they oversee.  It leaves me with three possibilities (or a combination thereof):

 a)     In 95% of cases, there is a clear winner and loser that most people would agree on.  In fact, this decision is so clear, that juries and judges are consistently on the same page about verdict and damages.

 b)     Judges tend to forget about the cases where they disagreed with the jury, so the 95% number is based on hindsight bias.  Who wants to remember the cases one oversees where the wrong parties (in your opinion) are celebrating?

 c)      Those who believe “juries get it right 95% of the time” are subconsciously helping the jury agreement with their own opinion.  Saying this may get me in a little hot water with some of the judiciary.  However, I believe it is something that should be talked about.

The American Society of Trial Consultants’ (ASTC) has Professional Standards which prevent members from publishing win/loss records.  There are several reasons for this, but one of the most powerful is the inability to define “wins” and “losses.”  Is a plaintiff verdict for $1 million in a case that was supposed to be worth $10 million a win or a loss, and for whom?  I suggest the definition of “right” falls into a similar category.

Blogger: Matt McCusker

 

ASTC Annual Conference in Sunny Seattle Next Week!

Given that Deliberations is now operated by the American Society of Trial Consultants (ASTC), I feel the need to pay homage to the great work the planning committee has done for next week's annual ASTC Conference in Seattle.  The event is running from June 9th to 11th and promises to really deliver on the 30th Anniversary hype that it has generated.

Thursday's session speaks to both new consultants and those who are more seasoned by offering a presentation track for each.  Those who want to learn more about the field can take TC101 and get in-depth discussions about the basics.  However, as an answer to member requests, the simultaneously available TC201 track is focused on how to build a successful practice from the business perspective.

Friday brings a myriad of options for attorneys and consultants alike (including CLE credits!).  A few of the programs that jump out are: “Analyzing pre-trial publicity in the new media universe,” “Everything you’d like to know about what ‘Your Honor’ will allow in trial (but were afraid to ask),” and the keynote address by ABC Supreme Court correspondent Manny Medrano.

Saturday continues the edutainment with presentations like “Prepping the difficult witness,” “Online research (part deux),” and a special screening of the award-winning documentary “Neshoba.”  The movie should be a particular treat, since it documents the great works of ASTC notables Andy Sheldon and Beth Bonora on a case that helped bring 40 year delayed justice for three murdered civil rights workers in Mississippi.

Finally, as I look out at blue skies from my West Seattle window, I am also happy to report that the extended forecast is looking sunny.  So, if you can, head on down to the waterfront Marriott for what looks to be a beautiful time in the Emerald City.

Blogger: Matt McCusker

 

How Does Nancy Grace Anger the French?

Last week’s news cycle was dominated by two criminal cases: Dominique Strauss-Kahn (or “DSK” as some in the media have affectionately dubbed him to avoid linguistic effort) and Casey Anthony (if you haven’t heard of this case, welcome back from that research trip in Antarctica).  Strauss-Kahn has been in the preliminary stages of being charged while the Anthony case has reached the exhausting challenge of jury selection, but both demonstrate a major conundrum within the U.S. Constitution: How does one balance freedom of the press with the right to a fair trial?

The French are up in arms (not literally) about the “perp walk” that Strauss-Kahn was paraded on after his arrest.  In France, this is viewed as unfair to defendants, as it casts them as guilty.  Perp walks are common in American justice and could certainly be argued as unduly prejudicial, but what has really gone over the edge is the media frenzy that has covered the story.  In addition to the massive onslaught of suppositions (some have even mentioned the words “serial rapist”), reporters and pundits have clearly painted an unfriendly narrative of “DSK.”

While I am no friend of the Messr. Strauss-Kahn, one only need look to the south at the Anthony trial to see the effects of a media frenzy.  The trial teams in Florida have been at wits end trying to find an impartial jury.  The massive media spectacle (much of which can be traced back to CNN’s Nancy Grace, who seemed to spout biased speculation on the case every night for months on end) has clearly endangered Anthony’s right to a fair trial.

The First Amendment of the U.S. Constitution makes clear that no law shall abridge the freedom of the press.  However, the Supreme Court has found that this freedom can be limited if there is a sufficient danger.  Interestingly, rulings regarding civil or criminal trials have become shifting lines in the sand and generally focus on the right of access, not the right to publish.   

While the First Amendment gets all of the fanfare (demonstrating the power of a well-crafted lead when writing), we also have the Sixth and Fourteenth Amendments that are just as important.  It’s great to have free speech, but if one can be unfairly imprisoned or punished by the courts, the speech ends up only being heard by cellmates.  As a result, our right to a fair trial is also a vital part of American life.

It is hard to argue that high profile trials do not put these Constitutional rights in conflict with one another.  Which begs the question: Which is more important, the public’s need to know or the individual’s right to fair judgment?  I’m guessing the answer depends on how guilty we think the person is.  Luckily, we have former-prosecutor Nancy Grace's "Swift Justice" to guide us in this evaluation. 

Blogger: Matt McCusker

 

Yo Quiero Taco Bell’s Legal Strategy

“Hooooold me now. It’s hard for me to say I’m sorry. I just want you to stay (as a defendant).” - Chicago

Yesterday, Taco Bell leveled a smackdown of epic proportions through an open letter to opposing counsel in a class action suit.  It was witty, in-your-face and broadcast through newspapers across the land.  The full page ads began with a giant-fonted question: “WOULD IT KILL YOU TO SAY YOU’RE SORRY?”

(I highly encourage you to read the full ad here, it’s a riot.)

Alabama plaintiffs’ law firm Beasley Allen recently decided to run for the border and withdraw the class action suit against Taco Bell that alleged the company was using bad meat products and false advertising.  In response, Taco Bell has brazenly demanded an apology and pointed out that this case has ended with:

“No changes to our (Taco Bell) products or ingredients. No changes to our advertising. No money exchanged. No settlement agreement.”

The ad concludes with a final poke at the attorneys:  “You got it wrong, and you’re probably feeling pretty bad right now. But you know what always helps? Saying to everyone, ‘I’m sorry.’ C’mon, you can do it!”

Taco Bell claims that the lawsuit had no merit and cost the company millions in legal fees and lost revenue.  While this ad is an excellent way to get the “safe tacos” announcement out (e.g., I’m writing a blog about Taco Bell’s trustworthy meat), I wonder if there is a secondary goal:  fewer future lawsuits.

This ad was clearly designed to send a message, but it never specifically mentions Beasley Allen.  One reason could be to avoid any claims of reputation damage by the law firm, but I think there was also a motivation to keep the communication “open” to any future opponents.  By investing a tremendous amount of money in an aggressive campaign for an apology, the public relations tables have been turned.  Rather than agreeing to an undisclosed settlement, the company has adopted the Steve Buscemi Strategy (seemingly harmless, but with a disconcerting  unpredictability).

Honestly, I can’t see the downside in this approach.  It’s brilliant.  The question will be if others follow suit (excuse the pun) in highlighting frivolous cases, rather than simply settling them for low dollar values.  In the meantime, don’t mess with Taco Bell, they’re loco.

Blogger: Matt McCusker

 

Ask Me No (voir dire) Questions, I’ll Tell You No Lies

How far will someone go to avoid jury duty?  While many suggest that pretending to be a racist is a common juror escape strategy, I question how many people are willing to take this route. Moreover, I tend to believe that anyone who is so unbalanced as to publicly present themselves as a devout racist (truthfully or not) would be a poor juror on any case.

However, is punishing this behavior really a good idea?  A Federal judge in New York thinks so.  Judge Nicholas Garaufis was so angry at a woman for racist comments during voir dire that he punished her with “indefinite” jury service. The Asian woman in her 20’s suggested on a juror questionnaire that those people she “least admired” were “African-Americans, Hispanics and Haitians.” (Who knew racists would use the term African-American?)

While we may hold her opinion in moral contempt, it is very dangerous to start holding it in legal contempt.  “Voir dire” (to speak truth) is dependent on jurors giving honest (or honest-ish) answers.  Being punitive towards jurors’ attitudes or opinions that we disagree with can only reduce the number of honest responses. As a result, we are more likely to end up with biased jurors. 

The most important question is: "What if she hadn't said anything?"

Blogger: Matt McCusker

 

 

Using Metaphorical Language Can Cure an Ailing Case (Research proves it!)

We have all felt beaten down at one point or another while preparing for trial. We’ve been lost in the woods and unable to keep our heads up as we slowly sank into a seemingly inescapable abyss. Then suddenly, an idea landed out of nowhere. We grasped it and utilized the concept to climb out of the desperate circumstances. After a little sweat and tears, we freed ourselves from old themes and ran to victory with a new strategy.

Okay, so going too metaphorical may be overkill. However, it is undeniable that the paragraph above relayed a palpable scene of being physically stuck and then escaping through pulling. What if I had described being lost in the dark (instead of the woods)? Would grasping a concept seem less helpful than discovering a bright idea or seeing the light?

A recent study out of Stanford University has demonstrated that metaphors may be even more powerful than we previously thought. More than simply conveying a concept, they may also subtly direct us on how to process and react to the information.

In this research, participants were given one of two versions of a media report on crime to read and then offer suggestions. The only difference was that one report described the crime as “a virus ravaging the city”, while others suggested crime was a “beast ravaging the city”. They then asked the participants to give recommendations for a solution.

Interestingly, those who read the “beast” metaphor were more likely to suggest utilizing increased police enforcement than those who read the “virus” version. Instead, the “virus” readers showed a greater propensity towards discovering the root issue of the problem and curing it.

All it took was a single word change and the result was a significant shift in problem solving style. Imagine if this was a case in front of a jury, arbitrator or judge. Could word choice have the same type of impact on the trier of fact?

This research demonstrates that beyond making a case more palatable or comprehensible, one can actually influence the manner of problem solving a jury might utilize. Ever reminding us that a good metaphor is like a key to the unconscious mind. (Damn, I think that was a simile.)

Blogger: Matt McCusker

 

Judicial Variability: To serve at the pleasure of the King (or Queen)

Judge Valerie Vega (coincidentally out of Vegas) recently made news by ordering jurors in a murder trial to stay all-night to finish hearing and eventually deliberating the case at hand.  In fact, the jury began deliberating at 3am (after 13 hours of trial) and finished at 7am. While juror overtime is not uncommon, this was extreme.  After the sun rose, the jury ended up acquitting Victor Fakoya in the murder of a 2-year old child that was in his care.

However, what made this story truly newsworthy was Judge Vega’s reasoning.  Shockingly, she was set to start a two-week vacation the next day and wanted a verdict so she could be free to leave.  While Judge Vega blamed the attorneys for the long trial, it was uncovered that many of her court days were cut short so that she could go watch her kids play soccer.  No matter the reasoning, it is hard to believe that a jury that had been up all night could fairly consider the facts in any case, much less the potential murder of a 2-year old.  It is also hard to believe that Judge Vega’s decision was completely within her rights as judge.

I would like to first say that the vast majority of judges are fair individuals who work hard at being the referees of our complex judicial system (and would never hold a cheeky blog against someone).  That said, the power a judge has over a case can be remarkably scary to those who sit outside our legal bubble.  In fact, I suggest that many would choose not to go to trial if they had a palpable sense of how little control one has over one’s fate after the case has been calendared.

As a litigation consultant, I’m often asked about the generalized procedures for jury selection and am typically embarrassed when I must reply “It depends on the judge.”  Surely someone who advises on these matters would know what the rules of the game are?  However, as many of us are painfully aware, the rules are actually guidelines that can be widely interpreted from state to state, from city to city and even from courtroom to courtroom within the same building.

There are many questions that come with jury selection: What qualifies for cause or hardship?  How are the alternates selected?  When does the day start and end?  How long is lunch?  What is the procedure for administering strikes and how much time is there to decide?  Are the attorneys given a real opportunity to ask questions in voir dire?  What questions will the judge ask the jurors?  Are juror questionnaires allowed?  However, the answers to these questions vary wildly.

To some it would be natural to ask:  why have we not developed more standardized rules and procedures for courtroom logistics?  Realizing that judging the strength of a cause strike or hardship claim comes down to personal opinion, there are still many other decisions that simply speak to the personal preference of the judge.  It could be argued that this variability of judicial inclination increases stress, the likelihood of a mistake and in some cases (like Judge Vega’s) abuse.

That being said, the true value of a litigation consultant is demonstrated through the fact that judges who preside across the hall from one another can have very different answers to all of the above questions.  A consultant who is worth their salt is ready to go into any courtroom situation and makes his or her living from the seat of the pants (figuratively and literally).  While judicial variability may be an added stress, it is one that we in the field of trial consulting are happy to help manage.

Blogger: Matt McCusker

Blue Chip Lawsuits: “We do what banks won’t.”

Imagine a world where you could buy and sell a financial interest in a lawsuit like one does with shares of Microsoft or Ford.  Picture yourself looking at the Wall Street Journal to what price your investment in the Jones v. Home Depot case was trading at.  Does this sound crazy?  Believe it or not, this is not as unlikely as one might think.

When the Dow was in the tank, investors searched for new opportunities that escaped a beaten down and skittish market.  One avenue that began to gain ground was the area of lawsuit investments.  The upside is clear: big jury verdicts and big settlements mean big winnings. However, much like any casino gamble, the downsides for the borrowers are less obvious and often hidden in the detail.

The Premise

Lawsuit investment is the loaning of cash by a bank or private investor to plaintiff attorneys (and their clients) to help fund a case.  With skyrocketing litigation costs, finances for necessary expenditures can be hard to come by.  This money goes towards a variety of expenses, including: expert witnesses, demonstratives, scientific testing, consulting and more.  Given this need, companies like LawFinance (whose questionable slogan is “We do what banks won’t.”) filled the gap and offered to invest in cases through litigation loans.

It’s easy to see why many support this concept and major players like Citigroup and Bank of America have entered the fray.  Plaintiff attorneys that can be easily outspent by corporate defendants see an opportunity for leveling the playing field.  This is particularly true for claims represented by small attorneys that deep-pocketed defendants might view as being able to be outspent to a verdict. 

Proponents suggest that much like the free market, weaker claims will not get investors because the outcome would be too risky. Conversely, strong claims would receive the funds necessary to mount an effective case and justice is served.  While this is true, there is always a catch (or even several).

What’s the Vig?

When discussing a loan of any sort, my Uncle would always ask: “What’s the vig?” (Translation for those of you who deal with more reputable lenders: “Are there interest charges and at what rate do they accrue?”). The answer is always “Yes!” and they are often pretty unseemly.  Interest rates can be 24% per year and higher, which can get pretty nasty when you think about the slow wheels of justice.  Heck, for that kind of scratch, you might as well put it on your credit card and earn enough points for a free trip to Tahiti to manage litigation stress.

It should also be noted that much like any bank (or loan shark), the interest does not go away if your investment turns sour (bad settlement, outright loss, years of legal delay, etc.).  In essence, these can be more like high-interest loans for risky bets with little to no asset backing. Where have I heard this before?

“Pros” (professionals) and “Cons” (con artists)

Don’t get me wrong, there are plenty of times when this is a good idea.  Professional investment banks will often devote months of in-depth review and analysis before funding a case.  They will put in the research intensity of a Las Vegas odds maker to determine how much should be loaned and at what rate.  What is the history of jury verdicts in the area?  How often does this defendant (and legal representation) settle?  What is the potential length of trial? And many more questions must be answered before a loan is granted.

However, there are also less scrupulous lenders. These are investors who charge outrageous interest fees and sometimes help create lawsuits that they can fund.  As with any industry, there is often a seedy underbelly that looks to take advantage of the system and prey upon those who are desperate.

Things that make you go “Hmmmm….”

Despite one’s personal opinion of lawsuit investments, there are serious issues that must be addressed as the practice continues to grow and States pass legislation that allows it to expand. 

First off, attorneys are not always required to clearly inform clients that they are getting loans, but can still pass the cost on to the clients.  Some lending operations even advertise their services as “free money” because the client gets stuck with the interest charges.

Secondly, there are major issues of privilege as investors want tremendous detail on the case before they will grant a loan.  As a litigation consultant, I am keenly aware of what I need to do to help preserve the sacred attorney-client privilege.  I think it would be hard to argue that a loan officer at the bank is part of the trial team.

Finally, this practice creates an outside pressure to settle as interest continues to accrue day after day.  Even if the attorney does nothing on the case for several months, the cost of the case continues to rise.  It is possible that settlement advice could be altered based on the cost of the loan rather than the merits of the case.

Once someone invests in something, they can often sell or pass on their share to someone else. We may not be at the point of mutual funds consisting of high and low risk lawsuits, but the rapid expansion of litigation lending suggests it could be on the distant horizon.  Whether this is something we want is still to be determined.

Blogger: Matt McCusker

 

A Story of Social Media Enlightenment: It's not just for kids anymore

(A big thank you for this Guest Blog from the ASTC Professional Visibility Committee written by Joe Rice.)

I have watched the trial consulting industry evolve slowly over the past 22 years.  However, like a scene from a Sci-Fi movie, I feel like some aspects of our field have moved at an incredible pace.  Generally, these have been associated with technology.

While some have seen me as being fairly progressive in my use and adoption of technology, there are a few areas that I have been reluctant to explore.  For example, I have been slow to venture into the seemingly awkward world of social media. 

However, as I have watched my children embrace this electronically connected society, I have begun to question my reservations.  My son Patrick has the family record of over 6000 texts messages within a month (summer vacation – I think he needs a job), and my daughter Michelle boasts over 1,221 Facebook friends that she insists she actually knows.

I have found that I can’t get away with simply calling it a kid thing anymore, as I see it impacting my professional practice and the future of our industry. When Grandpas have Twitter accounts and Grandmas are sending IMs, I can no longer live in denial.

Facebook has over 500 million active users with over 50% logging on every day.  Over 200 million access Facebook through a mobile device. The availability of online information and the ability to instantaneously share your thoughts with countless others is staggering.

While there has been much written about the use of social media by jurors, (as a member of the Professional Visibility Committee) I have been looking at the use of social media by trial consultants as a means of enhancing our professional visibility and professional development.  You would be surprised at the size of the growing community out there.

There are a wide range of professionals connecting through social media.  A brief search showed me that many of my colleagues and clients have been embracing this technology for years. For those who think a website is all it takes, the times they are a changing. 

While I tend to limit my Facebook network to friends and family (Do you know where your children are?), there are a number of groups that will allow you to broaden your network of more professional connections.  For example, there is even an ASTC group within Facebook.

If the degree of disclosure within Facebook is too personal, consider a more professional realm.  I have found LinkedIn to be a great way of staying in touch with fellow consultants and clients.  Nothing helps foster the personal connection to a client like congratulating them on a professional or personal victory.  I started out in the era where a congratulatory note required letterhead, an IBM Selectric and a postage stamp.  Now I reach out to clients while killing time at the airport.

I encourage you to go to LinkedIn and check out  ASTC’s Jury and Trial Research Interest Group as a starting point.  It is a great way to stay connected to your colleagues between conferences.

Once you are in, start looking for those people you know.  Establish a connection.  Get a recommendation. Repeat.

Now that I’ve waded into the social media community I can safely report that the water is fine.  Come on in.

Blogger: Joe Rice

 

 

One Underwear Bomb = 10 Million Nudie Pics (The Question of Body Scanner Legality)

“Opt out!” the TSA officer yelled at me in a startling manner as I stood in the security line at Reagan Washington National Airport. “Opt out!” I heard in the distance.  “Opt out!” was yelled for a third time from another direction as my head swiveled and everyone seemed to be staring at me.  Suddenly, my bags were swept off the X-ray machine and I was instructed to remove everything from my pockets (boarding pass, a gum wrapper, a crumpled Starbucks receipt), untuck my shirt, hike up my pants and “assume the position” for a disturbingly invasive frisking that seemed eerily similar to a pre-conjugal visit pat down (or so I’ve heard).

As I spread my legs, I had visions of Harvey Keitel in Bad Lieutenant while a very unhappy man intimately touched me in ways that I will not recount on this blog (but can assure you have historically been preceded by a first kiss).  Simultaneously, another TSA officer opened my bag for a bout of aggressive rummaging and began testing my unmentionables for bomb residue.  When I asked why all this was necessary, I was gruffly informed that it was for my security and I should “get used to it.”  To quote my new TSA friend with benefits: “Don’t you remember the underwear bomber? That’s why.”  When they were done, I put my clothes back on and gathered my belongings, meekly skulking away towards my gate like Jodie Foster in The Accused.

What had I done to instigate this unsettling ballet that would be aptly titled “Le Opt Out”?  Simply told, I declined a TSA officer’s request to leave my much faster metal detector security line for the body scanner security line. As a result of this insubordination, I won a trip through the metal detector (which I was already set to go through) and endured what I have dubbed the “Sanctioned Crotch Reach ‘Opt Out’ Deterrent” (or SCROOD for short.)

For those have not yet experienced this wonder of modern technology, the body scanner is able to allow your friendly neighborhood TSA officers to look under you undies (assuming you have no Flying Pasties) to make sure that you are not smuggling weapons onto a plane (although there is serious debate on its effectiveness).  Don’t worry, the program apparently blurs your face, it’s only everything else that is exposed to a stranger sitting 10 feet away. Also, as a bonus, it blasts you with “safe levels” of radiation through a “backscatter X-ray process” that is not powerful enough to send radiation all the way through your body, only through your skin.

A recent NY Times piece seems to have ignited a powder keg of anger on the web that has been growing over the last year.  In fact, there is a National Opt Out Day Protest planned for this November 24 (where everyone is asked to “Opt Out” on the busiest Thanksgiving travel day).  A brief Google search uncovers that it’s hard to find a news organization that is not taking a negative slant on this new technology (CNN, Fox News, ABC, CNET, CBS, NPR, etc.). The question is: Is this legally acceptable?

The Electronic Privacy Information Center (EPIC) has filed a lawsuit that moves to stop the utilization of body scanners through a number of interesting arguments (you can read the brief here).  Amongst its claims, EPIC argues that the scanners violate the Fourth Amendment, the Privacy Act, the Administrative Procedure Act and (most interestingly) the Video Voyeurism Prevention Act.  This last assertion utilizes a law that was passed to prevent people from installing cameras to look up women’s skirts. (Who needs that ancient technology anymore?)

A similar backlash has been ongoing in the U.K., where the scanners were forced to become optional for children under 18 years of age because the naked images would violate child pornography laws.  What has not yet been brought into legal question is the regular use of invasive pat downs for children that do not go through the scanners.  Even the U.N. Human Rights Council has weighed in on the question of privacy rights lost through the use of body scanners and pilots unions are advising their members to avoid the scanners based on health concerns and employment rights.

Litigation consultants travel a lot and this is the life I have chosen.  I am not one to downplay the need for security on planes, especially since I spend so much time on them.  However, it is also necessary to ask the question “Where is the line that makes the sacrifice greater than the gain?”  Luckily, I’m not the only one asking this question.  Given the current plan to rapidly replace all metal detectors with radiation-driven body scanners in the name of security, it’s nice to know that some people are forcing us to take a breath and think about the health concerns, privacy rights and fiscal responsibility that we find equally as valuable.

(Click Here for a funny Top 13 list on why Consumer Traveler loves body scanners and check out the new online game Celebrity Body Scanner here.)

Blogger: Matt McCusker

 

 

If Miss Cleo Couldn’t Predict a Jury Outcome, WHO CAN?

In an end to an illustrious career, Miss Cleo and her Psychic Readers Network came to a landmark settlement with the Federal Trade Commission where the company sacrificed $500 million dollars in fees and paid a $5 million fine for deceptive business practices.  This result brought three questions to my mind:

1. A $500 million settlement! How much money was Miss Cleo Making?  How much did she “psychically predict” a jury would award?
2. This is just one example in a sea of settlements based on predictions of trial outcomes, I must ask: How accurate are these predictions?
3. If I wore a turban and spoke in Jamaican accent, could I be a successful psychic litigation consultant? (Seriously. I cannot get over that $500,000,000 figure for a psychic hotline.)

A recent analysis out of Cornell Law School attempted to explore the meaning of “jury predictability” in the United States and if such a thing even exists.  They utilized a national comparison of jury verdicts via the 2005 National Center for State Courts Civil Justice Survey (an amazing study I have cited before) and the 2005 and 2006 U.S. Chamber of Commerce State Liability Ranking Studies.  Through a process I won’t go into here, Valerie Hans and Theodore Eisenberg established a creative method of analyzing the relationship between corporate and insurance attorneys’ assessments of juror predictability and the actual verdicts that were eventually rendered in various States.

Their results demonstrated that predictability ratings had little relation to jury compensatory damage awards, but were surprisingly in synch with punitive damage awards.  It suggests that the outcomes of cases with punitive damages (awarded in only 5% of judge or jury civil plaintiff verdicts nationally) are dominating defense attorney assessments of jury predictability.

In 2008, a paper published in the Journal of Empirical Legal Studies entitled "Let's Not Make a Deal" analyzed 9,064 decisions in contested litigation cases to examine the number and magnitude of errors made by attorneys and clients in failed settlement negotiations that ended in jury verdicts.  The results reconfirmed the findings of three prior empirical studies: both plaintiff’s counsel and defendant’s counsel frequently make dramatic miscalculations when predicting trial outcomes.  Interestingly, plaintiffs had a high rate of miscalculations (61.2%) with mid-level financial magnitudes, while defendants had a lower rate of miscalculations (24.3%) that resulted in very high financial magnitudes.  In other words, the plaintiffs guessed wrong regularly but only took a medium hit to the pocketbook, while defendants miscalculated less often but it cost them tremendous amounts of money. (I call it a tie.)

So, what does this mean? I would suggest that there could be several factors at play:

• Current methods of predicting potential case outcomes may be lacking due to an over-reliance on a small sample of similar jury trial outcomes.
• The stronger side may be sacrificing too much during mediation and settlement negotiation due to an unrealistic fear of loss or a lack of preparation towards fully establishing the power of the case.
• The idea of what a case is worth may be too heavily based on what similar cases have settled for, furthering a vicious cycle of faulty settlements.
• There is an over-dependence on Jamaican mystics and psychic hotlines.

Predicting jury outcomes is tremendously difficult task and every situation is different.  The best insurance against faulty guessing is to spend significant time learning one’s case and developing the strongest possible strategy prior to negotiation.  Just remember, that attorney who just had the embarrassing loss on a similar case down the road may have been depending on a very questionable strategy that began with 1-900…

Blogger: Matt McCusker