Deliberations

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