Trial Consultants: Juries are us
Trial Practices mixes courtroom savvy with the social sciences
Published Nov. 29, 1996
Harvey A. Moore knows what you're thinking. Rather, he can, with a little sociological poking and, eroding, make a darn good guess as to which way you'd vote in any jury trial. Part scientist, perhaps part benign Rasputin, Moore heads, Trial Practices, a Tampa jury-trial consulting firm that has been on the winning side of some of the Bay Area's most celebrated cases, including:
• The 1994 Clearwater criminal trial in which Richard Miller was acquitted of murdering his wife outside a Pizza Hut restaurant.
• Carl Allison's acquittal four years ago on charges of raping a woman in front of four eye witnesses who testified against him.
• The acquittal of Toronto Blue Jays pitchers Dave Stewart and Todd Stottlemyre, charged last year with assaulting police officers in Ybor City.
Combining social science and high-technology, the 50-year-old former University of South Florida Sociology professor helps lawyers pick potentially sympathetic jurors, as well as to perfect their pitches.
"Nobody would approach the sale of a new car or the selling of your home without some attention to who the potential buyers are and who would buy it," he explained. "That's what we do, figure out what the potential buyers want."
Complicated as that might sound, the Chicago-born Ph.D. --'whose specialties include motorcycle gang culture- says what he does is hardly rocket science.
"This technology, that seems so novel to attorneys is nothing more than journeyman social science research," he says with a shrug.
"We're like stage managers. The judges control the courtroom. The attorneys try to put their best foot forward like your mother told you. But the question is, what's your best foot?" Moore helps attorneys get a legal leg up with both computer and old-fashioned clipboard.
The first step is a literal one-usually into a shopping mall, where Moore and a female assistant (for gender balance) interview shoppers, probing how different folks react to various case-related hot-buttons.
This way, Moore said, "We can skate all around the different variances in our society and how they think about a case."
Later, back in Moore's 30th floor offices in downtown Tampa's Barnett Building, early findings are bounced off small focus groups and eight-person mock juries in any of 10 microphone and video camera-equipped rooms.
Pretend jurors are found by using newspaper ads, random dialing and by word of mouth.
Listening to attorneys -- or even Moore - air any number of different argumentative angles in a full-scale mock-up of a courtroom (complete with a bogus bench, wall-mounted TV monitors and U.S. and Florida state flags), these pretend jurors record how persuasive, or poor, various legal tactics are through buttons and a dial on tan TV clicker-like gizmos which are wired to the wall.
"We can't predict who'll be sitting in that jury. But we know ... we're all ... alike."
Moore and his staff sometimes offer advice to attorneys via tiny ear plug radio transmitters even as the lawyers make their pitches. "We'll throw in facts and suggestions," Moore said. "It's little like network news."
Meanwhile, in sound-dampened control room down the hall, Trial Practice technicians seated in front of glowing monitor screens watch the speakers and jury members as superimposed pink and green pastel horizontal lines snake up and down, reflecting male and female juror reactions.
Along with this data are combined some 14 different demographic details about each pseudo juror, including race, age, occupation, and even birth place. All this is saved on databases for further massaging later.
It is those seemingly inconsequential bits of personal lore such as one's home town, Moore explained, that can make all the difference in how a juror might view a particular issue.
"If you look at places even in Florida, there are big differences," he said. "Sarasota and Ft. Lauderdale, have different ways of doing business. Different cultures."
Nonetheless, Moore said, our core similarities ultimately make his job possible.
"We can't predict who'll be sitting in that jury," he said. "But we know that in our society we're all more alike than we're different. ... The difference is in how we come to the same conclusions. How our cultural differences play a part in that."
Besides pinpointing possible cultural bias, Moore said reading body language is plenty important too. To this end, technicians scrutinize how jurors legs are crossed, as well as where they're looking.
For example, Moore said, by paying attention to what part of a graphical exhibit jurors' eyes are' drawn to, he can design more effective displays. "Your design has to compete with the mind's understanding," he said.
Moore added that while these studies could get even more precise - such as by wiring up jurors for galvanic skin responses - the cost would be sky-high.
Not that Moore's clients flinch from cutting big checks.
A basic one-day, eight-person mock jury trial runs around $24,000. And depending' on how determined -and deep-pocketed - law firm clients are, fees can vault into six figures.
"Our service is reserved for very high-end litigation," Moore said. "It's not unusual for large firms to pay several hundred thousand dollars."
He added that Trial Practices currently has about 50 cases on its plate, some of which Moore began work on even before a suit was filed.
With so much riding on - and invested in - Moore's trial prep work, he takes plenty of precaution's to keep client information under wraps.
For example, most rooms in the 8,000 square foot space are equipped with phony overhead sprinklers that are really miniature video cameras. Heavy duty confetti document shredders sit in most offices, and heat and motion sensors hide behind ceiling tiles.
Plus, affixed to each window are hockey puck-sized "pink noise" devices, which emit a low hiss to foil would-be snoops armed with long-range laser microphones. And if that doesn't work, there Are even old-fashioned padlocks on file cabinets.
"There's $4 billion on the table in one of our cases," Moore Said. "That's why we have all the cleaning done during the day. That's why we encrypt all our (computer) hard drives."
After earning his doctorate from Case Western University in Cleveland, Moore began his sociology work in Vietnam, where among other things he did sociological studies on military deserters.
But a curious thing happened when he came home. "I found all my friends had become a motorcycle gang," Moore said.
Instead of joining his buddies in the Blue Island Boozer Boys, Moore in 1974 joined USF's faculty, teaching sociology for some 20 years.
Over the years, Moore has compiled an impressive collection of photographs and research about motorcycle gangs and hopes some day to write a book on their culture.
The same sociological principles associated with figuring out biker culture apply to barristers' work, Moore said.
"When we write an opening statement, we write in (the juries') language," Moore said. "You've got to close the gap between you and the juror. ... As opposed to some attorneys who come into the court and say, `Comes now the plaintiff.'"
Moore figures few, if any, cases are un winnable.
"It's just a matter of intuiting what the jury wants," he said. "If the other side's case wasn't intuitively credible, it wouldn't be in court."
Still, Moore said that often his biggest obstacle in preparing for a trial is convincing lawyers to go light on the facts. The trick, he said, is in teasing from the pile of evidence a few good hot buttons and knowing when and how often to press them.
"You always hear attorneys say that it's facts that count in a case," he said. "There are no facts that count. ... It's like when I was in astronomy class and they said, `Pick out Pegasus.' Well, you can't see Pegasus in a bunch of little stars. The only people who are going to see Pegasus are those who've grown up in an ancient Greek culture. You have to make people see it."
Although his earliest clients tended to be plaintiffs, Moore said now the mix is mostly defense. "It's like an arm's race," he explained. "If one side does it; the other feels they, have to also."
And while he said it's common to be approached by' both sides of a case, he said obvious conflicts prohibit him from working for both.
Besides prepping attorneys on how, to handle specific ,cases, Moore also coaches lawyers how better to use exhibits and how to use technology to their advantage in court, the latter being something most younger attorneys have been quick to take advantage of.
"You see old attorneys get up there with old slide projectors with -- a big white image way off on a screen and this deep disembodied voice talking to the jury," be said. "You have to get close to the jury."
While trial consulting is fairly ho-hum business in such cities as New York and Los Angeles, it isn't nearly as popular locally.
"In California, it's almost malpractice if you don't use trial consultants," Moore joked. "Here we're about 15 years behind the West Coast." He added that about 30 percent of his work is done in Tampa.
Among local firms Trial Practices has done work for are Holland Knight, Carlton Fields; Shear Newman Hahn & Rosenkranz; Fowler White Gillen Boggs Villareal & Banker, and Trenam Kemker Scharf Barkin Frye O'NeIill & Mullis.
Since the American Society of Trial Consultants was formed about 14 years ago, the ranks of trail consultants have soared from 19 to more than 400 members.
Only a handful of the more than dozen fellow trial consultant outfits in Florida are located in the Bay Area, Moore said, and few have his firm's gear and experience.
"Locally, this is a small market," he said. "It's like having one dog in town. You don't have many dog fights."
Though many clients come to Tampa, Moore said he often goes to them. "Everything we do here we do on the road," he, said, sweeping a hand toward giant black and silver traveling, cases which house his electronic gear. "We're kind of like a rock band."
In fact, Moore's off to Australia next month to help prep attorneys involved in defending a class-action medical device-related patent litigation case.
"I don't need to know anything about the (Australian justice) system," Moore said with a smile. "All I have to do is pay, attention to those jurors".