Trial consultants grow in number and influence.
By Trisha Renaud
SPECIAL TO THE NATIONAL LAW JOURNAL
ATLANTA--"A mother's heart never stops crying." The jury in this spring's bombing trial in Birmingham, Ala., heard those words from the lips of prosecutor Doug Jones in his closing argument.
But they were suggested by the head of the government's trial consultant team. Atlanta's Andrew M. Sheldon. A friend who'd lost a child used them in a letter to him, and Sheldon passed them on to Jones as they planned the closing.
Whether or not the words helped persuade jurors to convict ex-Klansman Thomas E. Blanton Jr. for the notorious 1963 church bombing, they illustrate a shift in trial consulting.
No longer do consultants simply do surveys to help pick juries. They are everywhere.
For example, Sheldon and his colleagues advised the government to portray the crime as the murders of four young girls rather than as an attack on civil rights. They worked on the government's order of proof, which ended with testimony from the only survivor of the blast.
Today's trial consultants participate in witness preparation, in developing trial themes, in establishing the order of proof and even in helping craft opening statements and closing arguments. Their techniques include surveys, polls, focus groups, mock trials and high-tech graphics. They research the political and social makeup of communities and advise lawyers on how juries reach decisions.
"All these things are the tool bag the lawyer didn't have," says Sheldon, the immediate past president of the American Society of Trial Consultants.
Consultants with backgrounds in the social sciences and the communication arts have become fixtures at major trials in criminal matters and products liability and business cases. In criminal cases, they are more likely to be found on the defense side, although the consultants say that federal prosecutors are making increasing use of their services.
They're a relatively new breed of professional, having grown from zero to about 500 since they started as researchers for politically charged trials in the 1970s.
Efforts to understand juries, however, are old stuff. As far back as 1907, lawyers tried to get a read on jurors, sending canvassers out into the community surrounding Boise, Idaho, in preparation for the murder trial of militant labor leader "Big Bill" Haywood. According to J. Anthony Lukas' book Big Trouble, by the time of Haywood's trial, prosecutors and defense lawyers were armed with "typewritten 'dope sheets' listing each jury man, his political and other affiliations, and a brief assessment."
Getting in touch
Beth M. Bonora of San Francisco's Bonora D' Andrea says that lawyers move in circles that are "pretty removed from the way most people live in society." Trial consultants, she says, help them get back in touch.
Bonora, a history major, was a founder of the first trial consulting firm, the National Jury Project. It grew out of work that included the North Carolina trial of Joann Little, a black woman accused of stabbing a jailer, and the trials of dozens of prisoners, involved in the Attica, N. Y., prison uprising.
"The commonality was, in all those trials, heavily polarized public opinion, a lot of emotion and a lot of questions about how do you get a fair jury," Bonora says.
After her work with the National Jury Project ended, the calls from business litigators began, she says.
"The issues were different, but the problem was the same," she says. "How do you get a jury that will give us a chance? How do you simplify the case so lay persons can understand?" Jeffrey Frederick, director of jury research services for the National Legal Research Group in Charlottesville, Va., has been in the trial consulting business since the mid-70s, when he went to work for the Joann Little defense team.
Jury work, Frederick says, soon expanded to encompass small-group research and trial simulations, as well as witness preparation.
The American Society of Trial Consultants has about 350 members, but there are probably another 100 to 150 trial consultants who don't belong to the group, according to Sheldon.
Consultants typically are chosen by word of mouth, they say. Some work solo, specializing in jury selection. Other consulting firms have multiple offices and
dozens of employees. Decision Quest has 13 offices around the country. Such vertically integrated firms offer a range of consulting services, surveying focus groups, organizing
documents, helping craft summations and developing courtroom graphics.
Trial consulting draws people from a variety of backgrounds, primarily psychology, sociology and anthropology. But they can also be drama experts, writers--and lawyers. Lawyers who turn to trial consulting, Sheldon says, often take a cut in pay to do so.
"The barriers to entry are low," says Harvey Moore, a sociologist and former professor who founded Tampa, FL's Trial Practices, Inc. That, he says is generally a good thing. "Any litigant ought to have access to the broadest advice they can get." On the other hand, Moore says, the range of experience and expertise can vary widely among those who call themselves trial consultants.
Moore says the trial consulting business operates in a "shallow market" because consulting services frequently must compete with alternate costs. For example, clients must decide if it is more cost-efficient to put $10,000 into pursuing motions in court or into obtaining consulting advice.
As for fees, consultants report that they, too, vary widely.
Fees are contingent on geography and expertise, Bonora says. Some consultants charge by the hour; others by the project: "Anything from $500 to design a voir dire to six figures for a project."
Moore says consultants' hourly fees are somewhat constrained by expert witnesses in similar fields. That, he says, sets "kind of a natural order for fees."
Moore says that he typically sets a fixed price for a given project. And projects can range from several thousand dollars to more than $100,000. Some clients spend several hundred thousand dollars on consultants, he says, before a suit is even filed.
Sheldon says the range in fees is due in part to consultants' varied backgrounds. He says a few charge more than $300 an hour. He has been at it for 17 years and charges $250 an hour, he says. His work for the prosecution in the 1963 civil rights murders, however, was free. Pro bono work, he says, is his obligation both as a lawyer and as a psychologist.
The consulting business is akin to the practice of law in how its members acquire clients. Consultants do advertise, but consultants say that most of their clients come from referrals. Bonora estimates that 80% of her clients come to her via "word of mouth." Four private practitioners interviewed say that they rely on references to select a consultant.
"How and why we are called is a mystery," says Sheldon. But one thing is certain, he adds: "We don't get called on any but the most difficult cases."
Atlanta criminal defense lawyer Brian Steel says he's found consultants so critical to the defense team that he calculates their cost when he quotes clients a fee.
"I've only found an upside" to using consultants, he says. "They're part of my team." He says he looks for the consultant who can give him the most time for brain-storming, for reviewing the file over dinner and for wrestling with issues and strategy. "Someone who says 'I'm on a mission.' That's the kind of person I look for," he says.
But other lawyers say they use consultants in more limited roles. L. Lin Wood Jr., the Atlanta lawyer who represents libel plaintiffs Richard Jewell and John and Patsy Ramsey, says that although consultants help him to focus on themes in a case, he prefers to handle other matters himself, such as witness preparation
Insurance defense lawyer Thomas Carlock, also of Atlanta, says he never uses consultants at trial. "I sort of go by my own instincts," he says. Or, he says he simply bounces ideas off someone whose opinion he respects, in particular two secretaries at his firm, Carlock, Copeland, Semler & Stair. Aside from the cost, the downside to relying on consultants, he says, "is going against your instincts." Consultants do come in handy, he says, in issue identification. "If you have an issue, they're worth their weight in gold." They can also help in particularly tragic cases or cases that raise difficult issues. But, Carlock says, "I'm not so sure we're not overanalyzing things; there's no way to take a $50,000 case and make it a $500,000 case."
Criminal defense lawyer Jack Martin says that in his experience, consultants' work can be "confirmatory."
They give you comfort in decisions you've already made," he says. But he adds that that isn't always worth the money.
When would he hire a consultant:
"The first thing is a case that has the money to pay for it," Martin says. "Definitely not your run-of-the-mill criminal case." Then, he says, he would consider it in cases that are high-profile or involve a controversial issue.
Moore, the Floridian, helped defend a Tampa teenager accused of stabbing her mother to death. The girl, Valessa Robinson, had told the police that she had pinned her mother on the floor while plunging a knife into her throat and back.
Robinson, 15 at the time of the 1998 crime, was convicted of the lesser charge of third-degree murder after the defense portrayed her as a vulnerable girl manipulated by older, drug-dealing men.
Moore also helped defend Joaquin Martinez, a Spanish citizen who spent three years on Florida's death row before his acquittal in a retrial this year.
Julianne M. Holt, the public defender for Hillsborough County, FL, whose office defended Robinson, says that she wants funding for a staff trial consultant. Having a consultant is having "someone whose focus is not protecting the appellate record, whose focus is not the legal issues," but on communicating the real issues of the case to a jury, Holt says.
Lay people on a jury often "think differently than we do," she says." You just get taught a different way in law school," she says. "You get caught up in what you think are the legal issues."
Consultants say they must fight an image as manipulators who stereotype jurors based on race or demographics."
In selecting jurors, she adds, "what matters is attitude and experience in life."
Consultants are becoming increasingly visible--and accepted--in the courtroom, says Frederick of the National Legal Research Group. The public, he says, is coming to see that "we're not stacking juries and we're not engaging in mind control. We're just another member of the team."