Deliberations

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

 

Mississippi Healing: The Rise of Pro Bono Trial Consulting

 This post is by guest-blogger Edward Schwartz (The Jury Box), the Chair of the ASTC Pro Bono Committee. It coincides with the launch of the new sidebar link to the ASTC Pro Bono Initiative (look to your right).  I have been assailed by the rigors of life and shall return next week with a new fun-filled episode. Thanks Edward!

Did you know that you might be able to get free trial consulting for your next case?

ASTC consultants have assisted in a pro bono capacity in a whole range of cases. From a simple eviction hearing to a case that garners national attention, consultants have donated their skills. Many ASTC members give generously of their time and energy to promote justice for the budget-strapped who find themselves entangled in the American legal system. To facilitate these efforts, ASTC has developed an active pro bono initiative that helps ASTC members provide their services at no cost (or at a substantially reduced charge) to attorneys across the country. The following is one such story...

Andrew Sheldon is one of the giants in the trial consulting world. He received the ASTC Lifetime Achievement Award in 2009, after more than 40 years in the profession. While Andrew has certainly done well in the profession, what stands out most is that he has always done good in the profession. Throughout his career, Andrew and his colleagues have dedicated thousands of hours to pro bono efforts, mainly in cases involving civil rights and capital punishment.

There is a remarkable little film making the rounds at this year’s film festivals, entitled "Neshoba: The Price of Freedom." It is a gripping documentary about the efforts to finally bring to justice Edgar Ray Killen, the man thought to be responsible for killing three civil rights workers in Neshoba County, MS in 1964. (A version of those events was portrayed in the movie, Mississippi Burning.) Somewhat startlingly, Killen gave the filmmakers extensive access to his daily life, ultimately revealing his deep-seated racism and bigotry. Almost as surprising was the ambivalence of the county’s residents towards the idea of trying Killen, a man most of them knew personally, for the murders.

It was in this guarded, reluctant environment that prosecutors faced the prospect of seating a jury and mounting a case. Luckily for the prosecution team, they had help. Andrew Sheldon and Beth Bonora (another long-time ASTCer with a track record of good works) donated their services to the district attorneys working on the case. That’s right, they each spent hundreds of hours working on this 40-year-old case – for free.

The trial took place in 2005. Initially considering only murder charges, the jury seemed to be stumped. Finally, when Judge Marcus Jordan instructed the jurors about the lesser-included offense of manslaughter (over the defense’s objection), Killen was convicted of three counts of manslaughter. The judge gave Killen a 60-year sentence, the maximum permitted by law.

For a terrific interview with Andrew Sheldon and Beth Bonora, conducted by ASTC President, Beth Foley, check out this month’s edition of The Jury Expert.

Consulting with a Conscience

Could you use help fashioning a visually effective timeline? Does your case involve highly sensitive, emotional issues and you’re not sure how best to handle them during voir dire? Do you need a digital representation of a crime scene to use at trial? ASTC has trained, experienced consultants available to help with all of these challenges, and then some. In addition, ASTC members from all over the country regularly donate their time to give presentations and teach others.

Don’t know what you might need? Most of my pro bono clients tell me that they really benefit from just being able to pick my brain about their cases. I ran a series of drop-in clinics for Massachusetts Bar Advocates (those who represent indigent criminal defendants) and often just a half-hour of brainstorming would really help an attorney clarify his or her own thoughts about trial strategy.

You don’t need to have a case of historical importance to get help from an ASTC consultant. If you think you could use pro bono trial consulting assistance, please visit the ASTC Pro Bono Publico Committee homepage.

Edward Schwartz, a trial consultant from Lexington, MA, is the Chair of the ASTC Pro Bono Publico and Awards Committee. Edward can be reached through the ASTC Pro Bono Committee homepage. His blog, The Jury Box, can be found here.