Handbook of Trial Consulting

Handbook of Trial Consulting

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Richard L. Wiener    Brian H. Bornstein ●

Editors

Handbook of Trial Consulting

Editors

Richard L. Wiener Department of Psychology University of Nebraska/Lincoln 338 Burnett Hall Lincoln, NE 68588 USA [email protected]

Brian H. Bornstein Department of Psychology University of Nebraska/Lincoln 335 Burnett Hall Lincoln, NE 68588 USA [email protected]

ISBN 978-1-4419-7568-3 e-ISBN 978-1-4419-7569-0 DOI 10.1007/978-1-4419-7569-0 Springer New York Dordrecht Heidelberg London Library of Congress Control Number: 2011925999 © Springer Science+Business Media, LLC 2011 All rights reserved. This work may not be translated or copied in whole or in part without the written permission of the publisher (Springer Science+Business Media, LLC, 233 Spring Street, New York, NY 10013, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connection with any form of information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Contents

1  Introduction: Trial Consulting from a Psycholegal Perspective............ Richard L. Wiener and Brian H. Bornstein

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Part I  Applied Research Methodologies for Trial Consultants 2  Systematic Jury Selection.......................................................................... Caroline B. Crocker and Margaret Bull Kovera

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3  “May It Please the Court…” A Social-Cognitive Primer on Persuasion in Legal Contexts................................................. Bradley D. McAuliff, Leslie Ellis, and Mark Phillips

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4  Questions About the Jury: What Trial Consultants Should Know About Jury Decision Making............................................ Ryan J. Winter and Timothy Robicheaux

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5  The Use of Survey Research in Trial Consulting.................................... Twila Wingrove, Angela Korpas, and Robert F. Belli

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6  Misconceptions About Statistics and Statistical Evidence..................... 121 Jonathan J. Koehler Part II  Witness Preparation and Effective Testimony 7  The Admissibility of Expert Witness Testimony..................................... 137 Marc W. Pearce 8  Selecting Experts........................................................................................ 173 Mark R. Cambron 9  Demonstrative Evidence: Evidence and Technology in the Courtroom........................................................................................ 187 Erin M. Richter and Amy M. Humke v

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Contents

10  Enhanced Persuasion in the Courtroom: Visually Dynamic Demonstrative Evidence and Juror Decision Making.......................... 203 Robert J. Nemeth Part III  Specific Interdisciplinary Topics in Trial Consulting 11  Pretrial Publicity and the Jury: Research and Methods...................... 217 Lisa M. Spano, Jennifer L. Groscup, and Steven D. Penrod 12  Trial Consulting and Discrimination Law: An Untapped Opportunity...................................................................... 245 Richard L. Wiener 13  Consulting on Damage Awards............................................................... 281 Brian H. Bornstein and Edie Greene 14  Neuropsychological Concerns................................................................. 297 William Drew Gouvier, Heather A. Stewart, and Adrianne M. Brennan Part IV  Professional Issues 15  Training of Trial Consultants.................................................................. 331 Veronica Stinson and Brian L. Cutler 16  Trial Consulting and Conflicts of Interest: An Introduction............... 351 Dennis P. Stolle and Christina A. Studebaker 17  Reform Proposals..................................................................................... 371 Franklin Strier 18  A Lawyer’s View of Trial Consulting..................................................... 393 Juliana Reno

Contributors

Robert F. Belli Department of Psychology, University of Nebraska/Lincoln, Lincoln, NE 68588, USA [email protected] Brian H. Bornstein Department of Psychology, University of Nebraska/Lincoln, 335 Burnett Hall, Lincoln, NE 68588, USA [email protected] Adrianne M. Brennan Department of Psychiatry, Louisiana State University Health Sciences Center, 1542 Tulane Avenue, New Orleans, LA 70112, USA [email protected] Mark R. Cambron Kentucky Commission on Human Rights, 332 West Broadway, 7th Floor, Louisville, KY 40202, USA [email protected] Caroline B. Crocker Department of Psychology, John Jay College of Criminal Justice, City University of New York, 445 W. 59th Street, New York, NY 10019, USA [email protected] Brian L. Cutler Faculty of Social Science & Humanities, University of Ontario Institute of Technology, 2000 Simcoe Street North, Oshawa, Ontario, Canada L1H 7K4 [email protected]; [email protected] Leslie Ellis Trial Graphix, Inc., 1 Thomas Circle NW, Washington, DC 20005, USA [email protected]

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William Drew Gouvier Department of Psychology, Louisiana State University, Baton Rouge, LA 70803, USA [email protected] Edie Greene Department of Psychology, University of Colorado, Colorado Springs, 1420 Austin Bluffs Parkway Colorado Springs, CO 80918, USA [email protected] Jennifer L. Groscup 116 Steele Hall, Scripps College, 1030 Columbia Avenue, Claremont, CA 91711, USA [email protected] Amy M. Humke University of Nebraska /Lincoln, 238 Burnett Hall, Lincoln, NE 68588, USA [email protected] Jonathan J. Koehler Northwestern University School of Law, Chicago, IL 60611-3069, USA [email protected] Angela Korpas Department of Psychology, University of Nebraska/Lincoln, Lincoln, NE 68588, USA [email protected] Margaret Bull Kovera John Jay College of Criminal Justice, City University of New York, 445 W. 59th Street, New York, NY 10019, USA [email protected] Bradley D. McAuliff Department of Psychology, California State University, 18111 Nordhoff Street, Northridge, CA 91330-8255, USA [email protected] Robert J. Nemeth Department of Psychology, University of Wisconsin-Stevens Point, Stevens Point, WI 54481, USA [email protected] Marc W. Pearce University of Nebraska/Lincoln, 238 Burnett Hall, Lincoln, NE 68588, USA [email protected]

Contributors

Contributors

Steven D. Penrod John Jay College of Criminal Justice, City University of New York, 445 West 59th Street, New York, NY 10019, USA [email protected] Mark Phillips Trial Partners Inc., 8383 Wilshine Blvd. Suite 810, Beverly Hills, CA 90211, USA [email protected] Juliana Reno Kutak Rock LLP, The Omaha Building, 1650 Farnam Street, Omaha, NE 68102, USA [email protected] Erin M. Richter Department of Psychology, University of Nebraska/Lincoln, 238 Burnett Hall, Lincoln, NE 68588, USA [email protected] Timothy Robicheaux Department of Sociology and Crime, Law, and Justice, The Pennsylvania State University, 211 Oswald Tower, University Park, PA 16802, USA [email protected] Lisa M. Spano PhaseOne Communications, 6080 Center Drive, Suite 450, Los Angeles, CA 90045, USA [email protected] Heather A. Stewart Department of Psychology, Louisiana State University, Baton Rouge, LA 70803, USA [email protected] Veronica Stinson Department of Psychology, Saint Mary’s University, Halifax, Nova Scotia, B3H 3C3, Canada [email protected] Dennis P. Stolle ThemeVision LLC, 11 South Meridian Street, Indianapolis, IN 46204, USA [email protected] Franklin Strier California State University, Dominguez Hills, 1000 E Victoria Street, Carson, CA 90747, USA [email protected]

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Contributors

Christina A. Studebaker ThemeVision LLC, 11 South Meridian Street, Indianapolis, IN 46204, USA [email protected] Richard L. Wiener Department of Psychology, University of Nebraska/Lincoln, 338 Burnett Hall, Lincoln, NE 68588, USA [email protected] Twila Wingrove Department of Psychology, Appalachian State University, Boone, NC 28608, USA [email protected] Ryan J. Winter Department of Psychology, Florida International University, Modesto A. Maidique Campus DM 25611200, SW 8th Street, Miami, FL 33199, USA [email protected]

Chapter 1

Introduction: Trial Consulting from a Psycholegal Perspective Richard L. Wiener and Brian H. Bornstein

Introduction Over the last 25 years, the Law and Psychology Program at the University of Nebraska-Lincoln has participated in trial consulting in a variety of ways including training graduate students to be professional trial consultants, writing academic articles about the process of trial consulting, presenting papers and symposia at national conferences on trial consulting, and engaging in both paying and pro bono trial consulting projects. We have watched the growth and development of trial consulting as it began with scientific jury selection (Lieberman & Sales, 2007) in the criminal arena and developed into a multimillion dollar industry with its own professional society, code of ethics, and scientific research foundation. Today, the American Society of Trial Consultants (ASTC) lists 37 websites of firms that advertise as trial consulting agencies and that pay fees to the society for including them on its homepage (http://www.astcweb.org/public/index.cfm). The ASTC openly acknowledges that this is not an exhaustive list and that there are certainly additional firms that actively engage in the practice of trial consulting that are not listed on this webpage. In fact, the same ASTC website lists over 400 trial consultants in the United States who are members of the society and, undoubtedly, there are many others who participate in the trial consulting profession either fulltime or parttime who are not members of the organization. These trial consultants practice in a wide range of arenas from change of venue studies, mock jury trials, language and the law, jury selection, expert testimony, focus groups, witness preparation, graphics and demonstrative evidence, psychological evaluation, and trial technology to name just a few of the 23 distinct areas of practice that appear on the ASTC website. The trial consulting industry is alive and well. Individual consultants possess educational credentials that range from bachelor’s degrees in the humanities to doctoral degrees in the social sciences, with many

R.L. Wiener (*) Department of Psychology, University of Nebraska/Lincoln, 338 Burnett Hall, Lincoln, NE 68588, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_1, © Springer Science+Business Media, LLC 2011

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holding joint degrees in these areas and some possessing joint degrees including formal legal training, such as the masters of legal studies and the juris doctorate. It follows that there are many different models and theories of trial consulting, some of which rely heavily on the social sciences and specifically psychology, while others are based in the fine arts and humanities. The current volume focuses on current issues that lie at the intersection of the practice of trial consulting as a profession and the theories and models of legal psychology, which form the foundation for many who practice in this field. While it is true that the training and therefore the approach of those who engage in trial consulting varies greatly from practitioner to practitioner, there are many who are psychologists by training. Although there is no formal study of the type of training for existing consultants, including those who are members of the ASTC and those who are not (but see Stinson and Cutler in this volume), estimates of background training in psychology run as high as 50% in the popular press (Hutson, 2007). This high rate of psychologists working in the field has not gone unnoticed by academics. There is a small but growing literature in the scientific journals that pertains directly to trial consulting, and perhaps more importantly, a large portion of the work published in social science and law journals applies directly or indirectly to the activities of these consultants in their professional practices. Ours is not the first volume to address the issues of trial consulting from an academic viewpoint. In the last 5 years, psychologists have authored at least three identifiable volumes that are about the practice and limitations of trial consultants. In 2005, Posey and Wrightsman wrote an evaluative volume that examined trial consulting as a profession, asking, among other questions, whether there was an evidence base from which trial consultants could confidently offer professional services, and whether or not there were ethical and legal safeguards in place to assure the consumer that trial consultants were practicing at an acceptable standard of care. In a review of that book, Judge Lerner-Wren applauded the volume for shining an analytic light on the work of trial consultants. She wrote, “In a book rich in data and details surrounding the most critical phases of trial practice, Posey and Wrightsman rip open the mystique surrounding this profession and raise some important issues as to the direction in which it should move” (pg. 1664, 2006). Indeed, Posey and Wrightsman describe in detail the traditional practices of trial consulting focusing heavily on the science of jury behavior and the limitations that it imposes on the ethical practice of trial consulting practitioners. Taking a similar approach to a more limited arena Lieberman and Sales (2007) in their book, “Scientific Jury Selection” reviewed the jury research literature asking about the efficacy and ethicality of the specific area of scientific jury selection. This volume begins with a thorough history of the practice of scientific jury selection, beginning with the earliest examples of social scientists working to assist defendants facing government charges in highly political cases that arose from the defendants’ resistance to government actions in the Vietnam War. Lieberman and Sales trace the development of scientific jury selection from its infancy to its emergence as a multimillion dollar industry that focuses in the contemporary environment on large scale civil and criminal litigation. Their book examines the use of personality,

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attitudes, and demographic factors as predictors of case outcomes and ends with a discussion of the ethicality and efficacy of scientific jury selection. Stanley Brodsky (2009) took a much more applied look at the practice of trial consultants focusing not only on the social psychological study of juries and juror behavior but also investigating the role that psychologists can play in witness preparation. This book “The Principles and Practice of Trial Consultation” is the first that we know of that examines with conceptual focus the joint contributions of both clinical and social psychology to the field. Brodsky (2009) describes how a consultant conceptualizes, analyzes, and intervenes in a typical case applying psychological theory and research to problems of witness preparation, jury selection, and trial strategy. Most interestingly, the book describes the application of trial consulting principles to a case study of a capital murder trial. This volume like the others ends with a critical examination of the ethical concerns and the future of the practice of trial consulting. The current volume takes an approach that is very different from these important and informative views of trial consulting. We attempt to examine the topic of trial consulting from an interdisciplinary perspective that has characterized the Law and Psychology Program at the University of Nebraska-Lincoln. We have written about this approach under the label of Social Analytic Jurisprudence (See Wiener, 1993; Wiener, Cantone, Holtje, & Block-Lieb, in press; Wiener & Hurt, 1999; Wiener & Nichols, 2011, for reviews). The model makes three important assumptions about the role of psychology in law and legal process, including trial consulting. First, psychology as it relates to law is an empirical science, and psycholegal scholars conducting work in this area constitute a scientific paradigm, which shares a common commitment to a set of scientific beliefs and values (Wiener, 1993; Wiener et al., 2006). The result of the empirical studies tests the assumptions that the law and, in the case of trial consulting, that lawyers make about human behavior. The findings can and should influence both the practice of law and the work of psychologists in assisting the lawyers in court. Second, psycholegal scholars apply the theory and the empiricism of their science to produce relationships that shed light on specific issues of law and policy. Legal psychologists operating within this model base their conclusions on their data and not on their shared social or political ideologies or on their intuitive understanding of human behavior regardless of how informed those intuitions might be by years of practice and consulting. In this way, we endorse an evidence-based practice approach to trial consulting in which consultants always seek out additional data and existing studies to guide their efforts in the courtroom. Third, psycholegal scholars adopt the roles of consultants and not advocates (Wrightsman, 1991). Psycholegal scholars refrain from the use of research findings simply to support one side of a debate even if it is the side of the debate favored by the most authoritative and preeminent stakeholders in the trial consulting case. Instead, they search their findings and the findings of others for results that have the potential to disconfirm their hypotheses. In this manner, psycholegal scholars advance the science of psychological consultation. While we are not so naïve as to suggest that psycholegal research is value free, social analytic jurisprudence advocates a thorough search of research findings to locate evidence that supports plau-

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sible rival explanations and alternative accounts of research results. Scholars who ignore alternative interpretations for their work risk disconfirmation through peer review, and trial consultants who do the same risk over-representing their capabilities and overstating their own levels of confidence. In either case, the end result is likely to be an unsuccessful project, embarrassment, and in the case of the trial consultant, the loss of future business opportunities. Social analytic jurisprudence follows a three-stage process. It begins with a careful analysis of the legal doctrine or policy rules and procedures to determine psychological and behavioral assumptions that underlie the particular policy in any given area. Wiener (2003, p. 511) states, “If psycholegal research is to be useful for adjudicative or legislative decision-making it must begin with an accurate depiction of substantive legal doctrine.” We argue that the same is likely to be true for the practice of trial consulting. To assist lawyers with trial preparation, the consultant must begin with the law of the case. The language that makes up statutory and common law principles, which are often comprised of legal tests to be decided based upon the social facts that make up specific cases, frequently invites a social scientific analysis and perhaps a psychological analysis. The principles represent assumptions that lawyers and judges make about human behavior and that capable trial consultants are ready to critically analyze with existing or new data. In the second stage of social analytic jurisprudence, psycholegal academic researchers and applied researchers, including trial consultants, review the social science literature to identify theories, research results, and methodologies that speak to the validity of these assumptions. This psycholegal analysis is likely to point out gaps in our understanding of the psychological and social realities supporting legal and policy assumptions. Accordingly, psycholegal scholars set in motion the final stage of social analytic jurisprudence, which consists of researchers conducting carefully designed studies to probe, evaluate, and indeed, test the psychological models that others have not already applied to the problems at hand in prior research. We believe that the results of this type of interdisciplinary analysis and research will provide the most effective tools and ultimately interventions for trial consultants to use in their work. This volume offers what we believe is an interdisciplinary effort to test some of the assumptions that attorneys, judges, and jurors make when they apply the law. We argue that psychological trial consultants can test these assumptions and in the process develop meaningful and successful methods for assisting attorneys at the practice of law. This volume of edited papers includes work by many of the graduates of the Law and Psychology Program at the University of Nebraska-Lincoln and others who share our interdisciplinary approach to psycholegal studies. The volume is organized into four major sections. The first Section, Applied Research Methodologies for Trial Consultants, describes the traditional types of investigations that trial consultants use to assist attorneys in litigation, but it does so with an eye toward the legal issues that these methodologies address. In Chap. 2, Caroline Crocker and Margaret Bull Kovera open with an analysis of the law of voir dire and the limited role that the law allows trial consultants to play in assisting with eliminating jurors who are unfriendly to one side of the case or the other.

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The authors go on to describe the research and theory in psychology that can help consultants advise attorneys during this process. The chapter concludes with a careful and insightful analysis of the legal and ethical criticisms of trial consultants who engage in some of these controversial techniques. In Chap. 3, Bradley McAuliff, Leslie Ellis, and Mark Phillips offer a detailed analysis of persuasion research in social psychology emphasizing the differences in heuristic and systematic processing of arguments in persuasion paradigms. McAuliff et al. add to prior reviews in this area by considering how the results of experimental studies apply to problems of jury decision making in civil and criminal law. After a careful and thorough review of the literature, the authors distill five principles that summarize this important and influential body of research in the context of litigation, making it accessible for nonsocial scientists who practice as trial consultants and for attorneys who might be in need of a guide for evaluating the recommendations of their consultants. In Chap. 4, Ryan Winter and Timothy Robicheaux take the next step, describing the existing research literature in jury decision making, showing the ways in which it applies and the ways in which it does not apply to the practice of trial consulting. They begin with a discussion of the research methodologies that psychologists use to study juror and jury decisions and examine in some detail the use of focus groups and mock jury simulations demonstrating how these common methods apply to trial consulting problems. The next section of their work focuses on the most persuasive ways to present evidence to juries and explores how consultants can test the effectiveness of different evidence presentation approaches in different types of cases. They end with a discussion of how to interpret the results of evidence-based jury studies and the ethical implications of applied jury research. While Chap. 4 emphasizes mock trials and focus group types of research, there are other methods available for the evidence-based practice of trial consulting. In Chap. 5, Twila Wingrove, Angela Korpas, and Robert F. Belli provide a detailed primer of survey research methodology emphasizing common pitfalls and ways to avoid errors in execution and interpretation of study results. This is extremely useful because it shows how specific survey techniques are typically applied in the contexts of both criminal and civil litigation. The authors fit the different techniques that they describe to specific problems in the law. Included in the applied discussion are change of venue surveys, jury selection efforts, surveys used for trial planning, surveys used as evidence, surveys used in consumer confusion and other topics in trademark law, and posttrial interviews. Attorneys are likely to hire social scientists to conduct the types of research that they and the consultants believe are necessary to test the assumptions that the law makes about the specifics in an individual case. The approaches to jury research discussed in the first four chapters of this section will be very helpful to both attorneys evaluating the results of this work and consultants providing the work product. However, when it is all said and done, the litigators will often find themselves in the position of offering these research results as evidence to the jury and very frequently this will require them to present statistical arguments to lay people. Chapter 6 authored by Jonathan Koehler rounds out our analysis of the

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evidence-based approach to trial consulting research with an analysis of the ways in which jurors can misconstrue statistical evidence and some ways in which trial attorneys with the help of consultants can avoid these errors. In this scholarly and impressive, but very accessible treatise, Koehler helps the reader understand the difficulties that jurors have with this type of information, using common examples from civil and criminal litigation. Attorneys and consultants alike should find these analyses extremely useful in analyzing the irrational assumptions that jurors sometimes make when trying to understand the results of the kinds of research described in Part I of this volume. Part II, Witness Preparation and Effective Testimony, turns our attention to witnesses and evidence at trial and the role that psychological trial consultants can play in assisting attorneys with the presentation of evidence. We begin Chap. 7 with a detailed review of the rules of evidence that are likely to impact trial consultants either as they offer the results of their work directly to a jury or in assisting attorneys in evaluating the appropriateness of that evidence. Mark Pearce offers a discussion of the federal rules and principles that control the admissibility of expert testimony. The chapter explains to consultants how they can maximize the likelihood that their own research and opinions will be admitted into evidence and suggests strategies for mounting effective attacks against the expert evidence submitted by opponents. This chapter begins with an overview of the discovery rules that govern expert testimony in civil and criminal cases and then moves on to apply those rules and principles to the testimony of expert witnesses. The chapter concludes with the warning that these rules vary somewhat from jurisdiction to jurisdiction, and Pearce recommends that consultants maintain a direct line of communication with the attorneys with whom they consult to make sure that their work is in compliance with the laws of evidence. The next three chapters in this part discuss more applied and less technical aspects of evidence presentation. In Chap. 8, Mark Cambron compares some intuitive rules that trial consultants use to assist attorneys in selecting persuasive witnesses and compares these intuitive recommendations to the evidence in the research literature. Cambron focuses in on some of the issues that trial consultants face on a daily basis and uses the extant research literature to help find psychological research that addresses these issues. The chapter goes on to discuss the legal limitations in selecting persuasive experts and some of the available methodologies for expert selection and expert preparation that do not run afoul of these rules. While Cambron offers some valuable insights that are very useful for selecting and training witnesses, he leaves it up to the authors of Chap. 9 to discuss the techniques that trial consultants use to develop demonstrative evidence in the courtroom. Erin Richter and Amy Humke begin with a discussion of the importance of demonstrative evidence in telling the case story to the jury in a way that is understandable and persuasive. They describe the existing empirical research on the use of simple computer software (such as PowerPoint), more complicated computer simulation programs, simple charts, photographs, and timelines. They add some interesting case law examples when appropriate and end the chapter with an example of applying demonstrative evidence techniques to a motor vehicle accident case.

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The reader who follows the law and the technology in the case example will learn a great deal about the power of the persuasive use of demonstrative evidence. Rounding out the second part of the volume is Chap. 10, which goes into more detail on the use of advanced and sophisticated computer animation technologies in the courtroom. Robert Nemeth tells a fascinating story about the increasingly more sophisticated applications of computer technology in trial consulting efforts illustrating applications with examples from cases that used these dynamic representations. Keeping in tradition with our integrative approach, Nemeth discusses relevant limitations of law on the admissibility of visually dynamic evidence and then describes the empirical research that tests the effectiveness of these sophisticated techniques. Based upon his review of the literature, Nemeth concludes that there are not hard and fast rules on the use of visually dynamic demonstrative evidence and calls for additional future research from cognitive and social psychologists to determine under what conditions visually dynamic demonstrative evidence can persuade jurors. Part III, Specific Interdisciplinary Topics in Trial Consulting, highlights some areas in which trial consultants who posses both knowledge of law and an understanding of applied research could make significant contributions to litigation. In Chap. 11, Lisa Chrzanowski, Jennifer Groscup, and Steven Penrod analyze the law and research pertaining to pretrial publicity to offer suggestions on how trial consultants can approach the problem in specific cases. The authors begin with a discussion of the precedent setting cases from the 1960s and 1970s, which control the legal responses to pretrial publicity and then go on to examine the empirical research which demonstrates the effects that such publicity has on jury decision making. The chapter concludes with an analysis of the biasing effects of pretrial publicity and how trial consultants can address these difficult issues in their practices. In Chap. 12, Wiener and Willborn review the fundamental theories of discrimination in the law (disparate treatment, disparate impact, and disability models) emphasizing employment discrimination to identify areas in litigation where trial consultants can contribute to work of plaintiffs’ and defendants’ attorneys. The chapter shows how experts (psychologists, statisticians, economists, etc.) can assist attorneys in preparing their substantive cases to present to the judge or jury. It reviews models of discrimination for disparate treatment, mixed motivation, systemic disparate treatment, disparate impact, disability, and sexual harassment. In addition, the chapter offers some insights about the litigation itself, offering some suggestions about how psychologists can act as litigation consultants assisting the attorneys in constructing the soundest arguments possible with the facts of a particular case. Wiener and Willborn first discuss each theory of law and then provide current case examples to illustrate how trial consultants might contribute to both sides of each case. Moving from models of liability to theories of damages, Bornstein and Greene in Chap. 13 begin by distinguishing between these two different types of jury judgments in civil cases. They go on to show how trial consultants can assist plaintiff and defendant attorneys in completing three main damages-related tasks, helping to estimate the value of a plaintiff’s injury, retaining and preparing experts

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and lay witnesses for trial, and advising attorneys on making effective arguments with respect to damages. Bornstein and Greene analyze the law in each of these areas as well as the empirical research that describes what we know about the way in which jurors reach conclusions for each of these types of decisions. They conclude that by determining the value of injuries in a given case, trial consultants’ most important role may be in helping to manage settlement negotiations to keep potential litigants out of court. Completing this section is a chapter in which William Gouvier, Heather Stewart, and Adrianne Brennan present a tutorial on neuropsychological assessment. Chapter 14, an interesting and unusual chapter for a trial consulting volume, is a guide for trial consultants interested in the application of neuropsychology to the legal setting. It describes how neuropsychologists use their skills to identify and diagnose neurobehavioral disorders, as well as plan and implement rehabilitation programs. In the process of reviewing this literature, the authors identify four cardinal principles of the forensic neuropsychologist and the way each role plays out in legal doctrine. These principles are (1) that optimal patient outcome is promoted by appropriate legal outcomes, (2) that the quality and quantity of neuropsychological evidence significantly impacts the legal outcome, (3) that multidisciplinary cooperation in litigation improves the legal outcome, and (4) that to ensure success, neuropsychologists must be forensically literate. The last part in this volume, Professional Issues in Trial Consulting, starts with Chap. 15 in which Cutler and Stinson use an empirical methodology to address the training needs of future trial consultants. Their work began with a thorough review of a sample of representative profiles of members of the ASTC, which produced four common themes that consultants commonly claimed that they could offer to attorneys: strategizing, coaching, jury-related services, and the application of technology to the courtroom. Cutler and Stinson followed up with a web-based survey of 58 respondents from the ASTC asking them about their practices, education, and skill development that allowed them to be successful trial consultants in the four areas of practice. The chapter ends in a summary of the findings in the form of advice to individuals who are potential trial consultants describing the types of professionals that they might be and the kinds of education and training that they will need to be successful in this career path. Of course no description of training and development is complete without a discussion of ethical principles and regulation. In Chap. 16, Stolle and Studebaker take up this topic beginning with the observation that when social scientists enter the world of trial consulting, they also enter the highly regulated world of lawyers and courts and they are held to a similar high standard of conduct that applies to the lawyers whom they serve. This is true despite the fact that there are currently no regulations that apply to the conduct of trial consultants other than the general, and perhaps, unenforceable standards that the ASTC has promulgated. Stolle and Studebaker focus on conflict of interest rules that likely apply to trial consultants, as well as work-product doctrine, and attorney client privilege. The chapter continues with a series of hypothetical scenarios that apply the rules to common situations that attorneys and their consultants may face in their professional capacities.

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The chapter ends with some discussion of the negligence liability that trial consultants who violate some of the strict rules of attorney conduct could come up against. This most sobering discussion is a valuable read for current and future trial consultants. Despite the indirect regulation of trial consultants through application of rules of conduct for attorneys, there are currently no licensing or even certification laws that apply to the profession. In Chap. 17, Franklin Strier discusses the controversy that surrounds the practice of trial consulting focusing on the heated topic of jury selection, which has spurred comments from judges, legislators, and others in the lay and professional communities. Strier goes on to point out that it is common for government rules and regulations to protect the public from unscrupulous practitioners who offer academic skills for hire. Strier analyzes the existing ASTC regulations and concludes that they constitute only a minimal effort at regulation and goes on to discuss some alternative reforms that range from outlawing trial consulting entirely, eliminating peremptory challenges of venire panel members, limiting voir dire questioning, to requiring state licensing of consultants and upgrading existing professional standards. The concluding chapter in our book returns to the integration of lawyering and trial consulting. In this last chapter, we asked a practicing attorney to provide a view of trial consulting from the perspective of a litigator who may or may not be in the need of these services. Juliana Reno discusses the services that consultants could possibly offer to litigators from the outset to the conclusion of a typical lawsuit, and she balances that discussion with some of the common misunderstandings that lawyers hold about trial consultants. This last chapter serves well as a summary of the earlier sections of the volume as it describes the needs of practicing attorneys during case assessment, pretrial maneuvering, preparing witnesses, mock trials, trial monitoring, the use of demonstrative evidence, and settlement concerns. This unique and authentic view of the trial consultant’s role from the perspective of a practicing attorney adds a sense of realism to this volume. This concluding chapter enhances our essential message that it is important to view trial consulting both through the eyes of the trial consultants and through the eyes of the legal professionals whom the consultants seek to serve.

References Brodsky, S. (2009). Principles and practice of trial consultation. New York, NY: Guildford Press. Hutson, M. (2007). Unnatural selection. Psychology today, http://www.psychologytoday.com/ articles/200703/unnatural-selection. Lerner-Wren, G. (2006). Book review: trial consulting. Psychiatric Services, 57, 1664–1665 (doi: 10.1176/appi.ps.57.11.1664) Lieberman, J. D., & Sales, B. D. (2007). Scientific jury selection. Washington, DC: American Psychological Association. Posey, A. J., & Wrightsman, L. S. (2005). Trial consulting. New York: Oxford University Press.

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Wiener, R. L., & Hurt, L. E. (1999). An interdisciplinary approach to understanding social sexual conduct at work. In R. Wiener & B. Gutek (Eds.), Advances in Sexual Harassment Research, Theory, and Policy. Special Edition of Psychology, Public Policy, and Law, 5, 556–595. Wiener, R. L., & Nichols Keller, S. (2011). Social analytic jurisprudence: Disabled and aging workers. In R. L. Wiener & S. L. Willborn, (Eds.), Disability and Age Discrimination: Perspectives in Law and Psychology (pp. 3–27). New York: Springer Press. Wiener, R. L., Holtje, M., Winter, R. J., Cantone, J. A., Block-Lieb, S., & Gross, K. (2006). Psychology and BAPCPA: Enhanced disclosure and emotion. Missouri Law Review, 71, 1003–1033. Wiener, R. L. (1993). Law and psychology – beyond mental health and legal procedure. Saint Louis University Law Journal, 37, 499–502. Wiener, R. L., Cantone, J. A., Holtje, M., & Block-Lieb, S. (in press). The limits of enhanced disclosure in bankruptcy law: Anticipated and experienced emotion. In R. Brubaker, R. Law, & C. Tabb (Eds.), A debtor world: Interdisciplinary perspectives on an indebted global society. Oxford: Oxford University Press. Wrightsman, L. S. (1991). Psychology and the legal system. Pacific Grove: Brooks.

Part I

Applied Research Methodologies for Trial Consultants

Chapter 2

Systematic Jury Selection Caroline B. Crocker and Margaret Bull Kovera

Introduction Jury selection takes place during voir dire, the pretrial proceeding during which the judge and attorneys question potential jurors with the aim of identifying venire members who are unfit for jury service. Jury “selection” is a bit of a misnomer as attorneys do not choose individuals to serve on the jury; instead jurors who are unable to remain impartial are deselected from jury service. Voir dire proceedings may take different forms depending on the jurisdiction. Many states have adopted very limited voir dire in which the judge poses questions to venire members. In extended voir dire, questioning is conducted by the judge and both attorneys (Jones, 1987). The judge holds discretion over the content and length of questioning. The manner of questioning during voir dire can also vary; although questioning is frequently conducted in open court, in some circumstances the judge may choose to question venirepersons individually (for a discussion of limited vs. extended voir dire, see Johnson & Haney, 1994). There are two mechanisms by which attorneys may eliminate members of the venire panel, challenges for cause and peremptory challenges. A challenge for cause is the mechanism by which attorneys are able to eliminate jurors who do not meet statutory requirements and thus whose service on the jury would result in a constitutional violation (Annual Review of Criminal Procedure, 2004). As the Sixth Amendment provides defendants with the right to an impartial jury, venirepersons who express an inability to set aside bias or decide the case solely based upon the evidence may be excused from jury service through a challenge for cause. Challenges for cause are unlimited in number. The peremptory challenge is a tool that attorneys may use to excuse jurors for any other reason they see fit (with some restrictions that will be discussed later). The judge has the responsibility of granting or denying both types of challenges (Kovera, Dickinson, & Cutler, 2003).

C.B. Crocker (*) Department of Psychology, John Jay College of Criminal Justice, City University of New York, 445 W. 59th Street, New York, NY 10019, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_2, © Springer Science+Business Media, LLC 2011

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Prosecuting and defense attorneys are allowed a finite number of peremptory challenges; typically, the defense attorney is granted more peremptory challenges than the prosecution (Kovera et al.). The number of peremptory challenges granted to the parties varies across jurisdictions, and attorneys are usually afforded more peremptory challenges in high-profile cases or criminal cases in which the crime is severe (Kovera et al.). Attorneys may use a peremptory challenge to eliminate a juror whom they expect to be unfavorable to their side, but who does not qualify for elimination under a challenge for cause. There are some limitations to the use of peremptory challenge, however. Attorneys may not exclude venire members specifically on the basis of their status as a member of a cognizable group, such as race (Batson v. Kentucky, 1986; Miller-El v. Dretke, 2005) or gender (J.E.B. v. Alabama ex rel. T.B., 1994). Venire members are also protected under the law in some jurisdictions from exclusion based on socioeconomic status (Thiel v. Southern Pacific Co, 1946), sexual orientation (People v. Garcia, 2000), or religion (State v. Fulton, 1992). Although attorneys may not make use of peremptory challenges to eliminate venire members on the basis of their membership in a cognizable group, it is widely acknowledged that these types of challenges do still occur (Kovera et  al., 2003). Indeed, attorneys may simply invent a neutral reason for the challenge if the use of a peremptory challenge is questioned by the judge. This chapter will begin by tracing the history of systematic jury selection (SJS). We will then investigate the relevant psychological research and outline the techniques employed by practitioners of SJS, including the community survey. We will explore whether SJS is effective by discussing what constitutes success in jury selection and presenting findings from experimental and field research. Finally, we will present critiques of SJS and identify future directions for research on jury selection.

The History of Systematic Jury Selection SJS and traditional jury selection offer different strategies to develop profiles of favorable and unfavorable jurors. SJS is a process by which statistical analysis is used to test for relationships between juror characteristics and attitudes about the case. Traditional jury selection refers to the methods and theories that govern attorneys’ implementation of peremptory challenges during voir dire; by definition, these methods do not employ scientific analysis. Attorneys typically rely on theories about jurors derived from stereotypes and intuition and may believe that years of experience in jury selection have sharpened their skill at selecting favorable jurors (Kressel & Kressel, 2002). Confidence in the efficacy of intuitive hunches to produce a favorable jury may result from lack of information to suggest otherwise. Indeed, as jury composition is only one of many variables that contributes to the outcome of a case, it is not possible for attorneys to receive feedback about the merit (or lack thereof) of their jury selection choices. The conviction with which attorneys often

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hold intuitive theories about jurors is highlighted by an example of a disagreement between prosecutor Marcia Clark and prosecution trial consultant Don Vinson ­during the O.J. Simpson trial. When Vinson’s recommendations based on his pretrial research conflicted with Clark’s intuition about how certain jurors would decide the case, he was fired and the prosecution ignored his advice (Davis & Loftus, 2006). Traditional jury selection techniques are based on commonsense or stereotypic notions about the associations between juror demographic characteristics and verdict behavior. Fulero and Penrod (1990) cataloged a multitude of conflicting and often amusing advice that jury selection guides provide to attorneys. Theories are offered about the influence of juror characteristics such as occupation, gender, race, demeanor, appearance, social status, religion, marital status, and age on jurors’ tendencies to vote guilty (Fulero & Penrod). Examples of recommendations include advice to avoid jurors with crossed arms or “fidgety” mannerisms and to favor those who smile (Fulero & Penrod). Famed defense attorney Clarence Darrow argued that criminal defense attorneys should challenge women, Englishmen, and Germans, but keep Irishmen (Darrow, 1936). Others have argued that criminal defense attorneys should seek those jurors who are round-faced, jolly, and overweight rather than those who are thin and delicate (Bailey & Rothblatt, 1985). Those representing civil plaintiffs should look for those who are married (Belli, 1954), but avoid Scots, as “no McTavish was ever lavish” (Harrington & Dempsey, 1969, p. 175). Needless to say, these commonsense notions about jurors are, for the most part, unsupported by empirical research. In contrast, scientific jury selection is the practice of implementing scientific techniques and systematic analysis to develop profiles of favorable and unfavorable jurors. The techniques rely upon the assumptions that individuals’ attitudes and characteristics can predict how they will evaluate evidence and render a verdict and that traditional social science methods can uncover these relationships between juror characteristics and verdict tendencies (Kovera et  al., 2003). Although trial consulting, including scientific jury selection, has grown into a very lucrative industry over the last 30 years (Strier, 1999), social scientists’ early involvement in jury selection was politically motivated. The dawn of scientific jury selection occurred during the 1971 Harrisburg Conspiracy Trial. Seven antiwar protesters, including Father Philip Berrigan and Sister Elizabeth McAllister, were charged with plotting to kidnap National Security Adviser Henry Kissinger, destroy draft records, and blow up heating tunnels in Washington, D.C. Sociologist Jay Schulman, social psychologist Richard Christie, and several other social scientists with experience in survey research techniques offered their services to the defense for the jury selection in this case (Frederick, 1984; Hastie, Penrod, & Pennington, 1983; Kassin & Wrightsman, 1988). These researchers conducted telephone surveys and interviews with community residents and gathered information on demographic characteristics, knowledge of case facts, religious and political affiliation, exposure to pretrial publicity about the case, case-specific attitudes, and attitudes toward the government (Hastie et al., 1983). These researchers used statistical analysis to determine if any demographic characteristics were significantly related to case-specific attitudes. The results

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of the survey indicated that religious affiliation and education were significantly related to attitudes toward the case. The social scientists used these findings to provide the defense with profiles of desirable and undesirable jurors, which helped the defense utilize their peremptory challenges by challenging jurors who fit the undesirable profile (Hastie et al.). The jury hung, and the defendants were acquitted (Hastie et al.; Kressel & Kressel, 2002). Social scientists have assisted the defense in other high-profile cases such as the Camden 28 trial, the Gainesville Eight trial, the Joan Little murder trial, the Angela Davis trial, and the trial of Mark David Chapman using similar survey techniques (Frederick, 1984). Recent cases that employed SJS techniques include the O.J. Simpson trial, the Martha Stewart trial, the William Kennedy Smith rape trial, and the Menendez brothers’ trial (Seltzer, 2006). In a typical case, a social scientist hired to assist with jury selection will create a survey instrument containing demographic questions, questions about the respondents’ knowledge of case facts, and case-relevant attitudinal questions. The survey will also include items which provide information about the respondents’ verdict preference (Moran & Comfort, 1982). For example, these questions may ask respondents about their opinion of the defendant’s responsibility for the crime or their opinion about whether it is appropriate to award damages to a plaintiff in a civil case. The survey is typically administered by telephone to a sample of several hundred jury-eligible members of the community from which the jury pool will be chosen. The respondents are chosen randomly; random digit dialing is a common random sampling technique. The purpose of the community survey is to measure community pretrial knowledge about the case and to determine which demographic or attitudinal characteristics are correlated with verdict preference. Typically, regression analysis is utilized to test for relationships between demographic or attitudinal characteristics and hypothetical verdict preference. Attorneys are then able to employ peremptory challenges to eliminate from the panel prospective jurors with characteristics that are associated with an undesirable verdict.

Psychological Research Applicable to SJS There is a large body of experimental psychological research that is applicable to the field of jury selection. There are many important questions to be answered in this field. For example, does SJS work? Can trial consultants predict verdict preferences from demographic characteristics? Are there any juror characteristics that predict verdict across cases or are predictor variables necessarily case-specific? Much of the research in this area has attempted to disentangle the relationship between demographic and personality characteristics, general and case-specific attitudes, and verdict behavior. Researchers investigating issues related to SJS have approached the topic using a variety of methodologies and perspectives. The studies in this area include interviews with and questionnaire data from actual jurors and mock juror laboratory studies. Early research in this area focused on investigating

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links between demographic and personality variables and verdict preferences. As the results from these studies were mixed and did not uncover any reliable predictors of verdict across cases, researchers turned their attention to the relationship between demographic characteristics and attitudes, and also to the link between attitudes and verdicts.

Personality and Demographic Variables as Predictors of Verdict A direct link between juror demographic characteristics or personality variables and juror verdicts has proven difficult to establish; research in this area has failed to uncover many reliable relationships between demographic or personality variables and verdict (Kerr, Hymes, Anderson, & Weathers, 1995; Frederick, 1984; Kovera et al., 2003). However, one personality characteristic that research has identified as a predictor of verdict decisions is authoritarianism. Authoritarianism as a personality variable is characterized by conservativeness, rigidity, and a preference for conventional values (Bray & Noble, 1978). Traditional authoritarianism is characterized by support for governance by a strong authoritative leader and preference for order and discipline. People who are high in traditional authoritarianism advocate adherence to rules and laws and disapprove of those who do not follow societal norms and rules (Narby, Cutler, & Moran, 1993). A form of authoritarianism which is especially relevant to jury decision-making is legal authoritarianism (Kravitz, Cutler, & Brock, 1993). Legal authoritarianism is similar in character to traditional authoritarianism, but specifically represents the perceptions of and beliefs about the legal system. The two types of authoritarianism do overlap somewhat, but they are not identical constructs (Narby et al., 1993). An early study investigating authoritarianism and verdict preference found that mock jurors possessing high levels of authoritarianism were more likely to vote guilty and impose longer sentences on defendants than those with low levels of authoritarianism (Bray & Noble, 1978). This effect held for both individual juror and jury verdicts. A meta-analysis examining the relationship between the authoritarian personality and juror verdicts provided additional support for the relationship between authoritarianism and verdict; individuals high in authoritarianism are more likely to render a guilty verdict than are those who are low in authoritarianism. In addition, legal authoritarianism has a stronger relationship with verdict than does traditional authoritarianism (Narby et al., 1993). These findings may be especially relevant for capital cases, in which death qualification is likely to result in juries with several high authoritarian members (Bray & Noble, 1978). Indeed, research on juror judgments in capital cases has found that mock jurors who scored high on legal authoritarianism were more likely to endorse aggravating factors and recommend a death sentence than those who scored low on legal authoritarianism (Butler & Moran, 2007). Aside from legal authoritarianism, research suggests that the relationships between juror characteristics and verdict that do exist are case-specific and do not generalize across different situations (Kovera et al., 2003). For example, research

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has demonstrated clear gender differences in verdict preference in rape, child sexual abuse, and sexual harassment cases (Kovera, Gresham, Borgida, Gray, & Regan, 1997; Brekke & Borgida, 1988; Kovera, McAuliff, & Hebert, 1999; Kovera et al., 2003), with women displaying greater punitiveness toward defendants in these types of cases. However, this gender difference does not hold across a broader spectrum of case types (Kovera et al., 2003). Similarly, other research has found modest relationships between juror demographics and personality traits and verdict behavior, although these associations were relatively small and are not consistent across different types of cases (Penrod, 1990). Indeed, in a recent study on juror decision-making in high-profile civil litigation cases, the relationship between juror characteristics and juror judgments were not consistent across cases. For example, belief in a litigation crisis was a significant predictor of verdict in a tobacco and a pharmaceutical case, but was unrelated to verdict in an insurance case; age was associated with verdicts in favor of the plaintiff for the pharmaceutical case, but was unrelated to verdicts in the other civil cases (Vinson, Costanzo, & Berger, 2008). In one of the most comprehensive studies of the association between demographic characteristics and personality traits of empanelled jurors and verdict preference, Moran and Comfort (1982) collected questionnaire data from real jurors who had served on felony trials in the Miami area during the years 1975 and 1976. Jurors provided information about demographic characteristics such as gender, age, socioeconomic status, number of children, and religious affiliation and completed a variety of personality measures such as social desirability, belief in a just world, empathy, and authoritarianism. Jurors were also asked to indicate both their predeliberation verdict and their jury’s verdict for the case on which they served. The authors attempted to determine which, if any, demographic or personality variables were significant predictors of jurors’ actual verdicts. Socioeconomic status emerged as a significant predictor of verdicts for men; men with a high income were more likely than men with a low income to acquit. Men who voted guilty were more likely to score high on authoritarianism, have more children, refrain from answering questions in a socially desirable manner, and have a lower income level than those who voted not guilty. Women who voted guilty were more likely to score high on a measure of belief in a just world and exhibit anticivil libertarian attitudes than women who voted not guilty (Moran & Comfort, 1982). The results of the abovementioned study revealed relationships between demographic and personality variables and verdict that had not been found in previous research. There are several plausible reasons for this discrepancy. Compared to the research by Moran and Comfort (1982), many prior studies analyzed data from a single jury, had small samples, and included fewer demographic and personality measures. Moran and Comfort examined the relationship between 22 predictor variables and five dependent measures using stepwise regression, whereas earlier research attempted to identify relationships between individual juror characteristics and verdict behavior. However, as predictor ­variables are correlated, multivariate analysis is more appropriate (Moran & Comfort). In addition, the study by Moran and Comfort investigated undifferentiated felony cases, whereas other research has examined juror behavior for

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s­ pecific types of cases (Moran & Comfort). It is ­possible that discrepancies in the results of this research and other research on actual jurors are attributable to age and racial differences among the samples (Moran & Comfort).

Juror Demographics and Case-Relevant Attitudes Because demographic information about potential jurors is easily obtained during voir dire, research on the link between demographic characteristics and juror attitudes is relevant to the field of jury selection. One field study investigating the relationship between demographic characteristics and attitudes analyzed data from interviews with jury-eligible community members and found racism to be more prevalent in older and less-educated respondents (Hepburn, 1980). Results also indicated that younger respondents who were educated and were at a higher income level were more likely to have politically conservative attitudes (Hepburn). According to Hepburn, there were no demographic characteristics that were predictive of verdict or case-relevant attitudes across all types of trials. However, research does support a reliable link between demographic predictors and case-relevant attitudes in specific types of cases, such as sexual harassment and death penalty cases. Research has demonstrated that certain demographic characteristics are correlated with attitudes toward the death penalty. African-American and women jurors are more likely to be opposed to the death penalty than Whites and men, respectively (Fitzgerald & Ellsworth, 1984). Support for the death penalty is higher among Whites, men, Republicans, people who are married, and people of a higher income level (Fitzgerald & Ellsworth; Luginbuhl & Middendorf, 1988; O’Neil, Patry, & Penrod, 2004). In addition, research suggests that religion and education level are associated with attitudes toward the death penalty. Catholics and Protestants are more likely to support the death penalty than atheists, agnostics, and Jews (Fitzgerald & Ellsworth, 1984). Research has shown that people with fewer years of education are more likely to support the death penalty than those with a higher level of education (Fitzgerald & Ellsworth; Luginbuhl & Middendorf, 1988). One particular demographic variable, gender, is associated with sexist attitudes. Glick and Fiske (1996) developed the Ambivalent Sexism Inventory to measure sexist attitudes toward women. Sexism is an ambivalent attitude, composed of two seemingly opposing perceptions of women. The two types of sexism are hostile sexism, which is characterized by negative feelings toward women, and benevolent sexism, which refers to positive feelings about women but is also characterized by viewing women stereotypically and in restricted roles (Glick & Fiske). Men have a higher mean score (indicating more sexist attitudes) on both subscales than do women, and this difference is particularly pronounced for the hostile sexism subscale (Glick & Fiske). The relationship between gender and sexist attitudes, specifically that men are more likely to hold sexist attitudes (especially hostile attitudes) than women, is likely to be relevant for cases in which gender is an issue at trial, such as in a sexual harassment case.

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Juror similarity to the defendant:  It is not simply the demographic profile of the venire members that is relevant to jury selection strategies; attorneys and trial consultants are also concerned with similarities and differences between the demographic characteristics of the venire members and the defendant. Conventional wisdom and traditional jury selection strategies suggest that it could be advantageous for defense attorneys to deselect jurors who are dissimilar from the defendant, as jurors may be sympathetic toward defendants with whom they share demographic characteristics (Kerr et  al., 1995; Van Wallendael & Cutler, 2004; Blue, 2001; Kovera et al., 2003). The wisdom of utilizing jury selection strategies that assume the reliability of the similarity-leniency effect is an issue that is particularly relevant in cases in which differences between jurors and the defendant, such as race, are visible or salient. The exclusion of venire members who are dissimilar from the defendant may reflect attorneys’ concerns about prejudice or out-group punitiveness. Research on intergroup dynamics, specifically Social Identity Theory, suggests that people tend to rate in-group members more positively than out-group members. According to SIT, people derive self-esteem from group membership and thus are motivated to view in-group members in a positive light (Taylor & Hosch, 2004). Individuals engage in social comparisons and are motivated to view themselves positively. Because group membership is important for one’s positive self-image, this can result in social judgments that are characterized by leniency toward members of the in-group and harshness toward members of an out-group (Taylor & Hosch). However, research suggests that under some circumstances, in-group members do not enjoy preferential evaluations. For example, Social Identity Theory also suggests that when an in-group member is unlikeable or engages in unacceptable behavior, that in-group member will reflect negatively on the in-group, and thus will be judged harshly. This finding, known as the black sheep effect, suggests that unlikeable in-group members will be evaluated more harshly than unlikeable out-group members (Marques & Yzerbyt, 1988). Research has investigated the influence of the status (in-group vs. out-group member) of the defendant on juror judgments. Mock jurors display in-group favorability in their verdict judgments when there is weak or moderately strong evidence against the defendant. However, when evidence against the defendant is very strong, results are consistent with a black sheep effect; mock jurors judge in-group members as more guilty than out-group members (Kerr et  al., 1995). These findings, however, do need to be interpreted with caution, as other research investigating similarity-leniency, out-grouppunitiveness, and a black sheep effect in actual felony cases in Texas was unable to find evidence of these effects (Taylor & Hosch, 2004). A recent meta-analysis on the prevalence of racial bias against a defendant in mock jury studies provides support for an out-group punitiveness effect in jury decision-making. Findings reveal a small but reliable effect for racial bias against an out-group defendant. This effect was stronger for Black participants than for White participants (Mitchell, Haw, Pfeifer, & Meissner, 2005). However, research on juror verdict preferences in racially charged trials does not simply reflect the operation of similarity-leniency/out-group punitiveness. Research on White juror

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bias has demonstrated that White jurors are most likely to exhibit prejudice against a Black defendant in cases in which race is not a salient issue at trial. Sommers and Ellsworth (2001) note that changing societal norms have made outward expressions of prejudice unacceptable, and as a result of the changing face of racism, Whites do not wish to appear prejudiced. In addition, not all interracial interactions are racially salient due to increased interracial contact (Sommers & Ellsworth). The results of mock jury studies indicate that in a case in which race is a salient issue, White jurors’ verdicts do not show bias against Black defendants. Prejudice does emerge in verdict preferences, however, when race is not a salient issue at trial (Sommers & Ellsworth). These studies indicate that jury selection based on similarity to the defendant is not a wise choice under all circumstances. In a case in which the defendant has behaved in a particularly heinous manner or in a racially charged trial with a Black defendant, research shows that the strategy of selecting jurors who are similar to the defendant may backfire.

Juror Attitudes and Juror Verdict Decisions As noted previously, the research on juror demographics and verdict behavior shows a weak link at best. Hepburn (1980) conducted a study of jury-eligible community members and assessed information and attitudes on a number of dimensions, with the goal of measuring the predictive strength of demographics and attitudes for verdict decisions. Respondents were interviewed and provided information regarding demographics, case-relevant attitudes, verdict for a hypothetical case, and perceptions of evidence strength. Case-relevant attitudes, such as attitudes toward the police and attitudes toward punishment, did not have a direct impact on verdict; attitudes did, however, impact verdicts indirectly, through perceptions of the strength of the evidence in the case. Research has demonstrated that evidence strength accounts for the greatest variance in juror verdicts. Indeed, in one study of real jurors who served in sexual assault trials, evidentiary factors such as physical evidence and witness testimony explained 34% of the variance in jurors’ verdict decisions (Visher, 1987). Although evidence strength accounts for the largest percentage of variance in jurors’ verdicts, juror attitudes seem to provide a stronger link to verdict ­behavior than demographic characteristics alone. To measure jurors’ general propensity to render a particular verdict, Kassin and Wrightsman (1983) developed the Juror Bias Scale (JBS). The JBS was designed to measure whether a juror is generally conviction- or acquittal-prone (Kassin & Wrightsman; Lecci & Myers, 2002). The original scale is composed of two subscales. The probability of commission subscale measures beliefs about the likelihood that a defendant is guilty given different factors (e.g., “If a suspect runs from police, then he probably committed the crime”). The reasonable doubt subscale measures the level of certainty needed to render a guilty verdict (e.g., “For serious crimes like murder,

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a defendant should be found guilty so long as there is a 90% chance he committed the crime”). Kassin and Wrightsman reported modest correlations for the JBS with juror verdicts. The JBS was revised by Lecci and Myers and the revised scale was validated with a large sample of community member participants. Scale revision involved the elimination of several items and the division of the probability of commission subscale into two scales measuring confidence in and cynicism towards the criminal justice system (Lecci & Myers, 2002; Myers & Lecci, 1998). Results indicated that the revised scale was able to predict verdicts as well as the original scale, although the proportion of variance in verdicts explained (approximately 2–4%) was still relatively low (Lecci & Myers, 2002; Lieberman & Sales, 2007; Myers & Lecci, 1998). Recently, Lecci & Myers (2008) developed the Pretrial Juror Attitudes Questionnaire (PJAQ), which is composed of six subscales: conviction proneness, system confidence, cynicism toward the defense, social justice, racial bias, and innate criminality. In a study establishing the predictive validity of the PJAQ, Lecci & Myers found that the PJAQ, although closely related to the JBS, accounted for almost 3% of additional variance in verdicts after controlling for jurors’ scores on the JBS and the R-LAQ-23, a similar scale that measures legal attitudes (Lecci & Myers). Research indicates that case-relevant attitudes are much better predictors of verdict than general attitudes or demographic characteristics (Narby & Cutler, 1994). There is evidence supporting the link between verdicts and some case-relevant attitudes such as attitudes toward tort reform (Moran, Cutler, & De Lisa, 1994) and attitudes toward drugs (Moran, Cutler, & Loftus, 1990). However, an attempt to establish a correlation between attitudes toward eyewitnesses and ratings of defendant culpability was unsuccessful, suggesting that there are limits to the ability of case-relevant attitudes to predict verdicts in all cases (Narby & Cutler, 1994). However, research has provided support for the link between several case-specific attitudes and verdict decisions in certain types of cases. Death penalty attitudes:  One well-documented association between jurors’ attitudes and verdict behavior can be found in the literature on juror decisions in death penalty cases. In capital cases, jurors who are unequivocally opposed to the death penalty are ineligible to serve on the jury (Witherspoon v. Illinois, 1968). The Supreme Court has ruled that capital jurors may be struck for cause if their attitudes for or against the death penalty are held with such conviction that it would “prevent or substantially impair the performance of their duties as a juror” (Wainwright v. Witt, 1985, p. 424). To determine their eligibility to serve on a capital jury, jurors are asked about their attitudes toward the death penalty during voir dire, for example, “Is your attitude toward the death penalty such that as a juror you would never be willing to impose it in any case, no matter what the evidence was, or would you consider voting to impose it in at least some cases?” (Cowan, Thompson, & Ellsworth, 1984). Research findings on the relationship between death penalty attitudes (DPA) and verdict demonstrate that jurors who are in favor of the death penalty are more likely than those who oppose the death penalty to convict a criminal

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defendant (Cowan et  al.; O’Neil et  al., 2004). O’Neil et  al. developed the DPA scale, a 15-item scale assessing attitudes toward the death penalty, and found that attitude toward the death penalty was a strong predictor of sentencing decisions. Similar results have been found in samples of deliberating mock jurors and in survey data from actual jurors (Cowan et  al., 1984; Moran & Comfort, 1986). Similarly, compared to those who oppose the death penalty, death-qualified respondents strongly disagree that the worst defendants should be considered for mercy, and they favor harsh punishment as a means of reducing crime (Fitzgerald & Ellsworth, 1984). In addition, death-qualified respondents are more likely to endorse aggravating factors in a capital case than excludable jurors (Butler & Moran, 2007). Research has demonstrated a large direct effect of attitudes toward the death penalty on verdicts in capital cases (O’Neil et al., 2004). Attitudes toward the death penalty influenced the interpretation of some mitigating and aggravating factors (supporters of the death penalty were more likely to perceive the defendant to be dangerous and less likely to perceive the defendant as mentally ill); however, the correlation between DPA and verdict was consistently stronger than the relationship between death penalty attitudes and ratings of defendant dangerousness or mental illness (O’Neil et al.). Juvenile waiver attitudes:  In juvenile waiver cases, cases in which juvenile defendants are adjudicated in adult court, a juror qualification process similar to death qualification occurs during voir dire. Venire members who report negative attitudes toward juvenile waiver and those who express concern that their deliberations would be affected by the knowledge that a juvenile may be sentenced to adult prison if convicted are likely to be excluded from the jury (Danielsen, Levett, & Kovera, 2004). Levett, Danielsen, and Kovera (2003) developed the Juvenile Waiver Scale to measure jurors’ attitudes toward juveniles, such as beliefs about juveniles’ dangerousness and sophistication, and general attitudes toward juvenile waiver. Mock jury research demonstrated that favorable attitudes toward juvenile waiver and a belief that juveniles are dangerous significantly predicted guilty verdicts (Crocker, Levett, & Kovera, 2006). Insanity defense attitudes:  Research on the insanity defense has demonstrated that there are common misperceptions about how frequently defendants put forth insanity defenses and the nature of a defendant’s confinement subsequent to a not guilty by reason of insanity (NGRI) verdict (Skeem, Louden, & Evans, 2004). General attitudes toward the insanity defense have been shown to be largely ­negative (Skeem et al.). Skeem et al. developed the Insanity Defense AttitudesRevised (IDA-R) scale to measure attitudes toward the defense. Research investigating the predictive validity of the IDA-R has found that mock jurors’ scores on the IDA-R are predictive of case judgments in insanity cases (Skeem et al.). Other research has also demonstrated that attitudes towards psychiatrists and the insanity defense generally are predictive of verdicts in insanity cases (Cutler, Moran, & Narby, 1992).

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Techniques used in Systematic Jury Selection Community Survey The most common technique employed in SJS is the community survey. Typically, this technique involves creating a survey instrument which is distributed to a representative cross-section of jury-eligible community members from the same jurisdiction in which the case will be held. The goal of the community survey is to develop profiles of both favorable and unfavorable jurors (Frederick, 1984). Survey instruments typically assess attitudes, knowledge about case-specific issues, and characteristics of the respondent (Frederick; Seltzer, 2006). Attitude questions include questions about general attitudes (e.g., presumption of guilt, attitudes about crime, attitudes toward the government), case-relevant attitudes, opinions about case-relevant issues, and perceptions about the litigants (Frederick, 1984; Seltzer, 2006). Knowledge questions typically assess memory for facts of the case, exposure to pretrial publicity, and opinions about these case facts. Finally, respondents are asked to provide demographic information such as age, gender, SES, reading and television habits, and religious and political affiliation (Frederick, 1984). The survey instrument is designed to identify variables that predict verdict and that are public information or easily assessed during voir dire (Hepburn, 1980; Seltzer, 2006). Hastie, Penrod, and Pennington (1983) outlined three vital aspects of the community survey: sample representativeness, design of the survey instrument, and data analysis. In order to generalize the results of the community survey to the venirepersons for a particular case, it is essential that the community survey sample mimics the jury pool in terms of demographic characteristics and jurisdiction (Penrod, 1990). Hastie and colleagues also note the importance of the choice of a variable to measure the respondent’s verdict preference. As respondents have not heard any evidence, they will not be able to provide hypothetical verdicts. Therefore, the questionnaire must include multiple questions to represent the respondent’s probable verdict preference. The authors recognize the difficulty associated with identifying questions that will tap into verdict preference with accuracy (Hastie et  al., 1983). For this reason, the authors recommend factor analysis as the most appropriate statistical tool for determining which variables are appropriate approximations of verdict preference (Hastie et al.). To analyze community survey data, Seltzer (2006) recommends utilizing stepwise regression techniques to determine which variables are significant predictors of the dependent measures. Similarly, Hastie et  al. (1983) recommend multiple regression analysis for determining significant predictor variables. Regression analysis is used to formulate a model of predictor variables which explains the greatest percentage of variance in the dependent (verdict) measure. Attorneys can then utilize the significant predictor variables to develop profiles of desirable and undesirable jurors to guide their use of peremptory challenges during voir dire.

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Does Systematic Jury Selection Work? Much effort has been expended to test the efficacy of SJS. However, it is difficult to define what constitutes success in this realm. Indeed, a “successful” jury selection may be construed by attorneys as the elimination of jurors biased against their party instead of the elimination of jurors who are unable to weigh the evidence fairly (Wallendael & Cutler, 2004). To justify the additional expense of SJS over traditional attorney jury selection, SJS must prove to be more successful than the strategies that attorneys are using already (Fulero & Penrod, 1990). However, it is uncertain what kinds of traditional techniques attorneys typically employ (Wallendael & Cutler, 2004). Trial technique handbooks do provide insight into the recommendations that attorneys provide to other attorneys regarding jury selection; however, little research has systematically studied attorneys’ strategies across cases. Most likely, the degree of advantage provided to attorneys by SJS methods over traditional techniques will vary across situations. Voir dire procedure varies across jurisdiction, and some states allow for more involvement and questioning by attorneys than others. Similarly, judges differ in the nature and number of questions they will permit during voir dire. The efficacy of SJS will depend at least in part on the voir dire procedure and the extent of attorneys’ ability to question the panel (Wallendael & Cutler, 2004). According to Seltzer, SJS strategies will add the greatest value in cases in which little attitudinal information can be gleaned during voir dire (Seltzer). Researchers have investigated the efficacy of SJS in both mock jury studies and in actual trial settings, and estimates of the variance in verdict decisions accounted for by SJS techniques range from 5 to 15% (Van Wallendael & Cutler, 2004; Fulero & Penrod, 1990). However, these estimates merely compare SJS against random jury selection. As attorneys do not utilize peremptory challenges in a random ­manner, the utility of this comparison is unclear (Van Wallendael & Cutler, 2004). In addition, it is difficult to draw definitive conclusions from the existing literature because of inherent problems of both mock jury and field research in this area. For example, field research often suffers from small sample sizes and tends to be ­limited with respect to case type and jurisdiction, making it difficult to generalize results to jury pools in other jurisdictions or types of cases (Van Wallendael & Cutler). Although laboratory studies of jury selection typically employ adequate sample sizes, representative attorney samples are difficult to recruit and study protocol may not accurately reflect real courtroom procedures (Van Wallendael & Cutler). In addition, although archival research has compared outcomes of cases that employed systematic vs. traditional methods of jury selection, there are likely to be preexisting differences between real cases that employ trial consultants and those that do not (Van Wallendael & Cutler). One example of field research in this area was conducted in the context of consulting efforts in the highly publicized Joan Little trial. In 1974, Joan Little, a young Black female inmate at Beaufort County Jail in North Carolina, was charged with first-degree murder for killing a White prison guard. According to the defense, the jailor, a White man, had raped Ms. Little and she stabbed him in self-defense (Kressel & Kressel, 2002). Social scientists assisted the defense with jury selection

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for the case. Relying on data they collected using a community survey, the social scientists developed profiles of favorable and unfavorable jurors and determined that the venire was unsympathetic to the defense’s case overall (Frederick, 1984). The social scientists also rated the nonverbal behavior of venirepersons and assessed jurors’ authoritarianism (i.e., the judge allowed one or two F scale questions) ­during voir dire (Frederick). Analysis indicated that jury selection in this case resulted in a more favorable jury for the defense. Jurors who were excluded during jury selection scored higher on measures of authoritarianism, were more likely to have proprosecution attitudes on the survey instrument, and were more likely to have “unfavorable” ratings on the in-court assessment of nonverbal behavior than jurors who were seated in the trial (Frederick). At trial, the jury voted in favor of the acquittal of Joan Little. Similar preliminary support for SJS techniques comes from an analysis of the methods used in preparation for jury selection for a civil suit for breach of contract brought against Newport News Shipbuilding by Shell Oil Company. Shell Oil claimed that a shipment of large oil tankers had been delivered by Newport News more than 2 years late, costing Shell 100 million dollars. Newport News claimed that the delay in shipment did not violate the contract between the two companies and hired consultants to assist with jury selection (Frederick, 1984). Social scientists administered a community survey to jury-eligible participants that asked ­participants to make verdict and compensation decisions about a hypothetical case similar to the Shell Oil case. Factor analysis of attitudinal questionnaire items yielded a verdict preference score. This score was then used as a dependent ­measure for regression analysis, which identified race of the respondent, prior military ­service, education level, and beliefs about the responsibility of the manufacturer for delays as significant predictor variables (Frederick). Although this case settled prior to trial, this research does suggest that SJS techniques have the potential to change the attitudinal composition of the jury. However, it is important to interpret these results cautiously as they represent findings from single cases and the studies do not allow for a comparison of SJS techniques with more traditional methods of jury selection. Although field research of this kind is clearly important, it is necessary to compare traditional and SJS techniques across a variety of cases. Horowitz (1980) conducted mock jury research to attempt to compare the efficacy of systematic vs. traditional jury selection methods. He compared the results of jury selection across four trial types: murder, drug, court martial, and drunk driving. Law students were trained to employ either traditional or systematic methods in a mock voir dire. Law students also provided predictions about jurors’ verdict choices. Results were not straightforward; SJS methods improved law students’ ability to predict jurors’ verdict behavior, but for only two of the four types of trials (Horowitz). There are many factors that make research comparing traditional and SJS difficult. Although research on individual cases is interesting and informative, data concerning the efficacy of SJS for a single case will not generalize to other case types, and a case study does not provide the opportunity to compare the two methods of jury selection. Although it is difficult to conduct research using actual deliberating juries,

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more studies of this kind are needed. In addition, the efficacy of both traditional and SJS will depend upon the procedural characteristics of the voir dire. Finally, it is necessary to determine under which circumstances, extended or limited voir dire, SJS is most useful.

Critiques of Systematic Jury Selection The field of SJS has endured controversy and criticism (Lane, 1999; Seltzer, 2006; Strier, 1999). The major critiques of SJS are that it undermines the justice system, that it is ineffective, and that it suffers from lack of regulation (Seltzer). Although SJS was first employed by social scientists offering assistance to the defense in politically charged cases with indigent defendants, the field has developed into a multimillion dollar industry which is most accessible to the wealthy (Lane, 1999; Strier, 1999). Typical fees for consultants have been estimated at $250 per hour (Lane, 1999), and these fees have been estimated to range as high as $375 per hour (Strier, 1999). One major criticism of SJS is that it creates an imbalance in the justice system because these methods are more readily available to wealthy defendants (Seltzer, 2006; Lane, 1999). A second concern for many is the appearance of unfairness. Fairness is an underlying principle of the justice system, thus the appearance of and the actual existence of legitimacy are arguably equally important (Strier, 1999). During jury selection, trial consultants’ services do not allow an attorney to “pick” a jury. The information gleaned from community surveys and in-court observation of venire members helps attorneys to make use of their peremptory challenges. However, critics note that even the appearance or popular belief that SJS assists attorneys in hand selecting jury members is problematic (Seltzer, 2006; Strier, 1999). The practice of SJS is criticized by others for its lack of regulation (Seltzer, 2006; Stinson & Cutler, 2011; Strier, 1999; Lane, 1999). The trial consulting industry does not have guidelines or rules governing its practice or the advertisement of services (Lane). Although trial consultants are typically psychologists, and many possess a Ph.D. or Master’s degree, the field does not have a licensure or degree requirement. Indeed, any person can call him- or herself a trial consultant (Strier, 1999). That said, a recent survey of members of the American Society of Trial Consultants indicated that over half of the 377 consultants had obtained a Ph.D. and 92% had obtained an advanced degree of some sort (Strier). Nevertheless, there exists the potential for unqualified, incompetent, or unethical individuals to advertise trial consulting skills (Strier). In addition, the field lacks a governing body to instill accountability and the field has not published appropriate ethical guidelines; the Code of Professional Standards put forth by the ASTC has lenient standards compared to other professional psychological and legal organizations (Stinson & Cutler, 2011; Strier). Moreover, the American Bar Association Model Rules of Professional Conduct does not regulate or limit attorneys’ use of trial consultants (Lane, 1999). Some critics of SJS claim that the practice eliminates intelligent venire members from the panel (Seltzer, 2006; Levin & Emerson, 2006). However, at least one

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research study comparing the education level of selected and excused jurors in real cases did not find any difference between the groups, indicating that at least in some jurisdictions, selected jurors do not have a lower education level than excluded jurors (Levin & Emerson). Another argument against SJS is that it has the potential to infringe upon defendants’ constitutional rights by producing a jury that is not impartial or one that is inconsistent with the Constitution’s representativeness requirement (Strier, 1999). In addition, others have argued that SJS appears inconsistent with the holding in Batson v. Kentucky (1986). The community survey functions by attempting to find relationships between demographic characteristics, such as race or gender, and case-specific attitudes and verdict. Although jurors who are eliminated because they fit an “unfavorable juror profile,” are not technically excused on the basis of race, it may seem this way in the eyes of the court. A final critique of SJS concerns its efficacy. As the strength of the evidence accounts for more of the variance in jury verdicts than do juror attitudes, critics argue that SJS is costly and unnecessary. The empirical findings regarding the effectiveness of SJS techniques for predicting jurors’ verdicts are inconclusive, such that it remains unclear which types of cases and situations will benefit most from SJS techniques (Strier, 1999). In addition, although parties who hire trial consultants often obtain desired verdicts, there are numerous factors that contribute to the outcome of a trial; it is difficult to accurately isolate the contribution of SJS to a favorable verdict (Kovera et al., 2003). As noted by Strier (1999), parties who can afford the cost of jury consultants are also likely to possess the resources to hire talented attorneys and expert witnesses (Strier).

Future Directions Research on and analysis of the field of SJS suggest that the methodology and goals of the field have changed over time and will continue to change. Although trial consultants may have purported to predict jury verdicts in the past, many trial consultants today declare no such talent (Seltzer, 2006). As research suggests that the majority of the variance in jury verdicts is accounted for by the strength of the evidence, and trial verdicts result from the contributions of myriad factors, it seems wise for trial consultants to avoid claiming the ability to deliver or predict verdicts. In addition, trial consultants today are adopting strategies that supplement the community survey with focus groups and shadow juries (Seltzer, 2006). Rather than focusing solely on jury selection, trial consultants are assisting clients with the development of overarching trial strategies and themes (Seltzer). There is a great deal of evidence to suggest that the field of trial consulting is expanding and that attorneys’ interest in SJS techniques will continue to rise (Lane, 1999; Strier, 1999). Because of this, additional research is needed on the efficacy of SJS techniques. Research must focus on the comparison between traditional and

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SJS techniques and attempt to determine in what types of trials and under what circumstances SJS is more advantageous than traditional methods. It is likely that SJS methods will tend to be more beneficial in cases that involve issues toward which people hold strong personal attitudes, such as death penalty cases, child abuse case, and insanity cases. In addition, as evidence strength tends to be the strongest driver of juror verdicts, SJS techniques should be more advantageous when the evidence is ambiguous. Advances in this type of research will certainly lead to improvements in trial consulting practice.

References Annual Review of Criminal Procedure. (2004). Georgetown Law Review, 33, 445–623. Bailey, F. L., & Rothblatt, H. (1974). Fundamentals of criminal advocacy. New York: The Lawyers Co-operative. Bailey, F. L., & Rothblatt, H. B. (1985). Successful techniques for criminal trials. New york: Clark, Boardman & Callaghan.

Batson v. Kentucky, 476 U.S. 79 (1986). Belli, M. M. (1954). Modern trials. Indianapolis: The Bobbs-Merrill Company. Blue, L. A. (2001). How to improve your chances for selecting a favorable jury: Proven psychological principles to use during voir dire to uncover juror bias. Association of Trial Lawyers of America Annual Convention Reference Materials, Volume 1. Bray, R. M., & Noble, A. M. (1978). Authoritarianism and decisions of mock juries: Evidence of jury bias and group polarization. Journal of Personality and Social Psychology, 36, 1424–1430. Brekke, N., & Borgida, E. (1988). Expert psychological testimony in rape trials: A social-cognitive analysis. Journal of Personality and Social Psychology, 55, 372–386. Butler, B., & Moran, G. (2007). The impact of death qualification, belief in a just world, legal authoritarianism, and locus of control on venirepersons’ evaluations of aggravating and mitigating circumstances in capital trials. Behavioral Sciences and the Law, 25, 57–68. Cowan, C. L., Thompson, W. C., & Ellsworth, P. C. (1984). The effects of death qualification on jurors’ predisposition to convict and on the quality of deliberation. Law and Human Behavior, 8, 53–79. Crocker, C. B., Levett, L. M., & Kovera, M. B. (2006). The predictive validity of the Juvenile Waiver Scale and its generalizability across participant groups. Poster presented at the meetings of the American Psychology-Law Society. St. Petersburg, FL. Cutler, B. L., Moran, G., & Narby, D. J. (1992). Jury selection in insanity defense cases. Journal of Research in Personality, 26, 165–182. Danielsen, E., Levett, L. M., & Kovera, M. B. (2004, March). When juveniles are tried as adults: What happens during voir dire? Paper presented at the meetings of the American PsychologyLaw Society, Scottsdale, AZ. Darrow, C. (1936). Attorney for the defense: How to pick a jury. Esquire, 36–37, 211–213. Davis, D., & Loftus, E. F. (2006). Psychologists in the forensic world. In S. I. Donaldson, D. E. Berger, & K. Pezdek (Eds.), Applied psychology: New frontiers and rewarding careers. New Jersy: Lawrence Erlbaum Associates. Fitzgerald, R., & Ellsworth, P. C. (1984). Due process v. crime control: Death qualification and jury attitudes. Law and Human Behavior, 8, 31–51. Frederick, J. T. (1984). Social science involvement in voir dire: Preliminary data on the effectiveness of “scientific jury selection”. Behavioral Sciences and the Law, 2, 375–394. Fulero, S. M., & Penrod, S. D. (1990). The myths and realities of attorney jury selection folklore and scientific jury selection: What works? Ohio Northern University Law Review, 17, 229–253.

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Glick, P., & Fiske, S. T. (1996). The ambivalent sexism inventory: Differentiating hostile and benevolent sexism. Journal of Personality and Social Psychology, 70, 491–512. Harrington, D., & Dempsey, J. (1969). Psychological factors in jury selection. Tennessee Law Review, 37, 173–178. Hastie, R., Penrod, S. D., & Pennington, N. (1983). Inside the jury. Cambridge: Harvard University Press. Hepburn, J. R. (1980). The objective reality of evidence and the utility of systematic jury selection. Law and Human Behavior, 4, 89–101. Horowitz, I. A. (1980). Juror selection: A comparison of two methods in several criminal trials. Journal of Applied Social Psychology, 10, 86–99. J.E.B. v. Alabama ex rel. T. B., 114 S.Ct. 1419 (1994). Johnson, C., & Haney, C. (1994). Felony voir dire: An exploratory study of its content and effect. Law and Human Behavior, 18, 487–506. Jones, S. E. (1987). Judge- versus attorney- conducted voir dire: An empirical investigation of juror candor. Law and Human Behavior, 11, 131–146. Kassin, S. L., & Wrightsman, L. (1983). The construction and validation of a juror bias scale. Journal of Research in Personality, 17, 423–442. Kassin, S. L., & Wrightsman, L. (1988). The American jury on trial: Psychological perspectives. New York: Hemisphere Publishing Corp. Kerr, N. L., Hymes, R. W., Anderson, A. B., & Weathers, J. E. (1995). Defendant-juror similarity and mock juror judgments. Law and Human Behavior, 19, 545–567. Kovera, M. B., Dickinson, J. J., & Cutler, B. L. (2003). Voir dire and jury selection. In A. M. Goldstein (Ed.), Handbook of psychology (Forensic psychology, Vol. 11, pp. 161–175). New York: Wiley. Kovera, M. B., Gresham, A. W., Borgida, E., Gray, E., & Regan, P. C. (1997). Does expert psychological testimony inform or influence juror decision making? A social cognitive analysis. Journal of Applied Psychology, 82, 178–191. Kovera, M. B., McAuliff, B. D., & Hebert, K. S. (1999). Reasoning about scientific evidence. Effects of juror gender and evidence quality on juror decisions in a hostile work environment case. Journal of Applied Psychology, 84, 362–375. Kravitz, D. A., Cutler, B. L., & Brock, P. (1993). Reliability and validity of the original and revised Legal Attitudes Questionnaire. Law and Human Behavior, 17, 661–667. Kressel, N. J., & Kressel, D. F. (2002). Stack and sway: The new science of jury consulting. Boulder: Westview Press. Lane, M. E. (1999). Twelve carefully selected not so angry men: Are jury consultants destroying the American legal system? Suffolk University Law Review, 32, 463–480. Lecci, L., & Myers, B. (2002). Examining the construct validity of the original and revised JBS: A cross-validation of sample and method. Law and Human Behavior, 26, 455–463. Lecci, L., & Myers, B. (2008). Individual differences in attitudes relevant to juror decision making: Development and validation of the pretrial juror attitude questionnaire (PJAQ). Journal of Applied Social Psychology, 38, 2010–2038. Levett, L. M., Danielsen, E., & Kovera, M. B. (2003). Racial differences in attitudes toward juvenile waiver to adult court. Paper presented at the meeting of the International, Interdisciplinary Conference on Psychology and Law, Edinburg, Scotland. Levin, H. Y., & Emerson, J. W. (2006). Is there a bias against education in the jury selection process? Connecticut Law Review, 38, 325–351. Lieberman, J. D., & Sales, B. D. (2007). Scientific jury selection. Washington, DC: American Psychological Association. Luginbuhl, J., & Middendorf, K. (1988). Death penalty beliefs and jurors’ responses to aggravating and mitigating circumstances in capital trials. Law and Human Behavior, 12, 263–281. Marques, J. M., & Yzerbyt, V. Y. (1988). The black sheep effect: Judgment extremity towards ingroup members in inter- and intra-group situations. European Journal of Social Psychology, 18, 287–292. Miller-El v. Dretke, 545 U.S. 231 (2005).

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Mitchell, T. L., Haw, R. M., Pfeifer, J. E., & Meissner, C. A. (2005). Racial bias in mock juror decision-making: A meta-analytic review of defendant treatment. Law and Human Behavior, 29, 621–637. Moran, G., & Comfort, J. C. (1982). Scientific juror selection: Sex as a moderator of demographic and personality predictors of impaneled felony juror behavior. Journal of Personality and Social Psychology, 43, 1052–1063. Moran, G., & Comfort, J. C. (1986). Neither “tentative” nor “fragmentary”: Verdict preference of impaneled felony jurors as a function of attitude toward capital punishment. Journal of Applied Psychology, 71, 146–155. Moran, G., Cutler, B. L., & De Lisa, A. (1994). Attitudes toward tort reform, scientific jury selection, and juror bias: Verdict inclination in criminal and civil trials. Law and Psychology Review, 18, 309–328. Moran, G., Cutler, B. L., & Loftus, E. F. (1990). Jury selection in major controlled substance trials: The need for extended voir dire. Forensic Reports, 3, 331–348. Myers, B., & Lecci, L. (1998). Revising the factor structure of the Juror Bias Scale: A method for the empirical evaluation of theoretical constructs. Law and Human Behavior, 22, 239–256. Narby, D. J., & Cutler, B. L. (1994). Effectiveness of voir dire as a safeguard in eyewitness cases. Journal of Applied Psychology, 79, 724–729. Narby, D. J., Cutler, B. L., & Moran, G. (1993). A meta-analysis of the association between authoritarianism and jurors’ perceptions of defendant culpability. Journal of Applied Psychology, 78, 34–42. O’Neil, K. M., Patry, M. W., & Penrod, S. D. (2004). Exploring the effects of attitudes toward the death penalty on capital sentencing verdicts. Psychology, Public Policy, and Law, 10, 443–470. Penrod, S. D. (1990). Predictors of jury decision making in criminal and civil cases: A field experiment. Forensic Reports, 3, 261–277. People v. Garcia, 77 Cal. App. 4th 1269, (2000). Seltzer, R. (2006). Scientific jury selection: Does it work? Journal of Applied Social Psychology, 36, 2417–2435. Skeem, J. L., Louden, J. E., & Evans, J. (2004). Venirepersons’s attitudes toward the insanity defense: Developing, refining, and validating a scale. Law and Human Behavior, 28, 623–648. Sommers, S. R., & Ellsworth, P. C. (2001). White juror bias: An investigation of prejudice against black defendants in the American courtroom. Psychology, Public Policy, and Law, 7, 201–229. State v. Fulton, 57 Ohio St. 3d 120, (1992). Strier, F. (1999). Profiling the profilers: A study of the trial consulting profession, its impact on trial justice and what, if anything, to do about it. Wisconsin Law Review [Special Issue]. The American Jury, 441–499. Taylor, T. S., & Hosch, H. M. (2004). An examination of jury verdicts for evidence of a similarityleniency effect, an out-group punitiveness effect or a black sheep effect. Law and Human Behavior, 28, 587–598. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). Van Wallendael, L., & Cutler, B. (2004). Limitations to empirical approaches to jury selection. Journal of Forensic Psychology Practice, 4, 79–86. Vinson, K. V., Costanzo, M. A., & Berger, D. E. (2008). Predictors of verdict and punitive damages in high-stakes civil litigation. Behavioral Sciences and the Law, 26, 167–186. Visher, C. A. (1987). Juror decision making: The importance of evidence. Law and Human Behavior, 11, 1–17. Wainwright v. Witt, 469 U.S. 412 (1985). Witherspoon v. Illinois, 391 U.S. 510 (1968).

Chapter 3

“May It Please the Court…” A Social-Cognitive Primer on Persuasion in Legal Contexts Bradley D. McAuliff, Leslie Ellis, and Mark Phillips

The key to success for any attorney lies not in the mastery of law or in the ­serendipity of a perfect fact pattern, but in the ability to persuade. A persuasive attorney can redefine the contours of law to suit his/her needs and resurrect a flawed set of facts right before jurors’ eyes. For the past 30 years, social psychologists have studied persuasion and a host of variables that influence this process. In the spirit of the current volume, we examine the theoretical background and empirical ­support for two information-processing models of persuasion. We also consider how the psychological literature reviewed can help trial consultants provide more informed and effective advice to their clients when preparing for court.

Persuasion: A Social-Cognitive Perspective Persuasion can be defined as “the process by which a message induces change in beliefs, attitudes, or behaviors” (Myers, 2008, p. 224). According to this definition, there are three essential components to the process of persuasion: (1) a message (2) that results in some measurable change (3) in some aspect of the self. Without any one of these three components, persuasion cannot occur. Persuasive messages come in a variety of forms, although typically they are presented visually (written or image) or orally (spoken) to the intended targets. Persuasive messages are often referred to as “arguments” because they aim (or argue) to change the way someone thinks, feels, or behaves. Persuasive arguments are perhaps most synonymous with the attorney role in trial contexts. At its core, our adversarial system pits two or more attorneys against one another, each arguing to persuade the judge or jury to favor his/her client. In reality, of course, persuasion transcends the attorney role and affects every member

B.D. McAuliff (*) Department of Psychology, California State University, 18111 Nordhoff Street, Northridge, CA 91330-8255, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_3, © Springer Science+Business Media, LLC 2011

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of the courtroom. Persuasive arguments extend to and from multiple sources (attorneys to judge, attorneys to jurors, judge to jurors, witnesses to jurors, juror to jury, and even jury to the general public) involving a variety of legal questions that must be decided in a case: What is the applicable law? Is this particular evidence admissible? What are the facts? Which side should the verdict favor? Did the jury make the right decision? Persuasion even reaches beyond the courtroom to influence the dynamics between a trial consultant and his/her client. Attorneys, like most of us, tend to be more willing to seek advice than to actually follow it, especially when that advice runs counter to intuition or common practice. Thus when asked “Why should I frame a particular legal issue that way?” or “For what reason should I strike a particular juror from the venire panel?” trial consultants may be required to implement some of the same persuasive techniques we hope they will later share with their clients for use in the courtroom. In short, persuasion and the legal process are inextricably intertwined.

Information-Processing Models of Persuasion Social psychologists have examined persuasion in basic and applied settings using two primary models of information processing: the Heuristic-Systematic Model (HSM; Chaiken, 1980, 1987) and the Elaboration Likelihood Model (ELM; Petty & Cacioppo, 1986a, 1986b). As one might imagine, the information to be processed in these models is the persuasive message and people vary in the level of cognitive effort they are willing to devote to this task. Social ­psychologists have conceptualized these varying levels of cognitive effort as two endpoints on a continuum. At one end lies a level of processing that is extremely effortful and taxing on our cognitive resources because it entails the careful, detailed scrutiny of persuasive message content. This is referred to as systematic (HSM) or central (ELM) processing and is defined by attention to argument quality. Systematic/ central processors focus on questions such as: Are the persuasive arguments strong or weak? Why or why not? Are they consistent or inconsistent with my knowledge and/or experience? At the other end of the continuum lies a level of processing that is more superficial and less cognitively effortful because it relies on the use of mental shortcuts and simple decision rules to evaluate a persuasive message. This is referred to as heuristic (HSM) or peripheral (ELM) processing. Heuristic/peripheral processors focus not on the quality of the persuasive argument, but instead on certain cues that are related to the message itself, its source, or the audience to whom the message is targeted. We will discuss these factors in greater detail shortly. For now it is sufficient to know that systematic/central processing is (1) high in cognitive effort and (2) focuses on ­argument quality, whereas heuristic/peripheral processing is (1) low in cognitive effort and (2) focuses on cues related to the message, its source, or the audience. A word of caution is necessary here: we must be careful not to misinterpret the levels of processing distinction to mean that two mutually-exclusive responses to

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persuasion exist. At any given point along the information-processing continuum, an individual engages in some degree of systematic processing and some degree of heuristic processing simultaneously. Although it is true that the balance of the ­continuum will favor one level of processing or the other (midpoint excluded), we admit that referring to this as either “systematic/central” or “heuristic/peripheral” processing somewhat oversimplifies the true nature of people’s cognitive reactions to persuasive messages. We do so in the interest of parsimony and clarity; however, readers should keep in mind that these labels reflect a predominance of one level of processing over the other at any given time and that in reality both levels of ­processing occur simultaneously to some degree. We also would like to note that from this point on we will combine the terminology of the HSM and ELM models by simply using “systematic” to refer to systematic/ central processing and “heuristic” to refer to heuristic/peripheral processing in order to avoid tedious, overly burdensome repetition for our readers. The two ­models are more alike than they are different, but we will be careful to point out important distinctions when they are relevant to the discussion at hand.

General Postulates of the HSM and ELM: Common Ground The HSM and ELM share at least two general postulates in addition to the idea that systematic and heuristic processing of persuasive messages can co-occur. One of the most basic postulates is that people desire to hold attitudes that are valid and accurate (Chaiken, 1980, 1987; Petty & Cacioppo, 1986a, 1986b). This means that people seek to attain attitudes that are perceived to be congruent with (1) the ­relevant facts at hand, and (2) their prior knowledge and/or experience (Chaiken, Liberman, & Eagly, 1989). Applied to a criminal trial, both models would assert that jurors are motivated to hold attitudes about the defendant’s innocence or guilt that are consistent with the evidence presented at trial and to some degree jurors’ relevant knowledge and/or experience. As defined by these models, accuracy does not necessarily mean complete impartiality or the total absence of bias because in certain situations a person may believe that relying on a particular bias will result in a more accurate attitude (Chaiken et al. 1987; Petty & Wegener, 1999). A juror in our criminal trial example may believe that his/her attitude about the defendant’s guilt is accurate (and it very well may be) even when operating under the biased belief that innocent people are never accused of crimes. Accuracy then is an outcome that one can achieve using different cognitive processes, some more or less biased than others. No matter what cognitive process is used, however, the desired outcome remains the same: correctness. A second general postulate of the HSM and ELM that is somewhat at odds with the first is the idea of limited cognitive capacity. According to this view, it is neither possible nor desirable for individuals to exert boundless mental activity when ­processing a persuasive message (Moskowitz, 2005). Each persuasive message is but one of many pieces of information that bombard us as we navigate our social

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worlds. Devoting cognitive resources to one task depletes those that are available for additional tasks; therefore, we must allocate our limited cognitive resources in the most efficient manner possible. Taylor (1981) coined the phrase “cognitive miser” to describe this process. In essence, we tend to be stingy when deciding how much cognitive activity to devote to a particular task due to the sheer volume of information present in situations and the limitations inherent in our informationprocessing capabilities. Our discussion of the accuracy and limited cognitive capacity postulates brings us full-circle to where we began by introducing the two types of information ­processing in the HSM and ELM models. When evaluating persuasive arguments, how do people strive for accuracy while operating under a cognitive system of limited capacity? They engage in some degree of systematic and heuristic ­processing simultaneously and in doing so strike a compromise between the level of accuracy achieved and the amount of cognitive resources expended. Generally speaking, systematic processing results in increased accuracy but requires more cognitive resources, whereas with heuristic processing cognitive resources are ­conserved at the expense of decreased accuracy. According to the HSM, this tradeoff is guided by a sufficiency principle that maintains people will exert as much cognitive effort as is required (and possible) to be sufficiently confident that their accuracy goals have been fulfilled (Chaiken et al., 1989; Chen & Chaiken, 1999). Chaiken and her colleagues have suggested that the sufficiency principle can be best understood by visualizing a continuum for confidence much like the one we described for heuristic/systematic information processing (see Fig.  3.1a, b). One end of the continuum is associated with decreased confidence in judgmental ­accuracy and the other with increased confidence. Two points along this confidence continuum are noteworthy: a person’s perceived confidence level (represented in

Fig. 3.1  Information processing continuum, confidence continuum, and the sufficiency principle

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Fig. 3.1 by the filled triangle symbol) and his/her desired confidence level (represented by the � symbol). The sufficiency principle asserts that when perceived confidence falls short of desired confidence an individual will devote more cognitive resources to the persuasive message until they become aligned (see Fig. 3.1c). In other words, people will engage in systematic processing until they are sufficiently confident that they are as accurate as they desire to be (Eagly & Chaiken, 1984; Wood & Eagly, 1981). What constitutes sufficient confidence in judgmental accuracy will vary from individual to individual and across situations. Being mindful of the sufficiency principle and its relation to the accuracy/cognitive resource compromise, we now examine more concrete factors known to affect systematic versus heuristic processing.

Factors That Affect Systematic Versus Heuristic Processing According to the HSM and ELM, two important factors that influence whether people engage in systematic or heuristic processing are motivation and ability (Chaiken, 1980, 1987; Petty & Cacioppo, 1986a, 1986b). An individual must be both motivated and able to process a persuasive message systematically before such processing can occur. If either motivation or ability is low, she/he is more likely to engage in heuristic processing when evaluating the persuasive message compared to someone who is motivated and able to process systematically. What factors affect one’s motivation or ability to process systematically? Research has shown that personal relevance, personal responsibility, and the Need for Cognition (NC) all influence one’s motivation to process a persuasive message systematically. Similarly, factors that determine one’s ability to engage in systematic processing include information complexity, prior knowledge, distraction, and ­repetition. We now consider each of these factors in turn. Motivation-related factors:  Personal relevance, personal responsibility, and NC. Early research by Petty and his colleagues revealed that the perceived personal relevance of a persuasive message plays an important role in motivating someone to process it systematically (Petty & Cacioppo, 1986b). Students in one study were led to believe that their university was considering a comprehensive exam policy for all graduating seniors (Petty, Cacioppo, & Goldman, 1981). Students read strong or weak arguments in favor of the policy that they thought would be implemented the following year (high personal relevance) or 10 years later (low personal relevance). Evidence of systematic processing emerged for students in the high personal relevance condition. They found the strong arguments more persuasive than the weak arguments, whereas students in the low personal relevance condition did not differentiate between the two argument types. Similar findings emerged in a subsequent study by Petty, Cacioppo, and Schumann (1983). Participants ­evaluated various magazine ads, one of which contained strong or weak arguments for a new disposable razor. Strong arguments were more persuasive when participants believed that they would select a razor (versus another product) as a ­complimentary gift after

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viewing the ads. In addition, a greater number of high personal relevance participants were able to freely recall the category types (81%) and brand names (60%) of the products that appeared in the ads compared to low personal relevance participants (64 and 42%, respectively). A second factor shown to affect one’s motivation to process systematically is personal responsibility. Social psychologists have demonstrated that people tend to engage in social loafing when participating in collective tasks that require physical exertion such as tug-of-war (Ingham, Levinger, Graves, & Peckham, 1974) or applause (Latane, Williams, & Harkins, 1979). Essentially participants in these ­studies pulled harder or clapped louder when they thought they were performing the tasks alone versus collectively with others. These findings raise an intriguing ­question: Do similar effects occur for people’s performance of cognitive tasks as well? In other words, are people less motivated to think about an issue or persuasive argument when they are collectively versus individually responsible for their decisions? Research by Petty, Harkins, and Williams (1980) indicates that the answer to this question is yes. College students in that study evaluated strong, mixed, and weak versions of an editorial ostensibly written by a journalism student. Petty and colleagues manipulated individual responsibility by leading participants to believe that they were the only person or one of ten people to evaluate the editorial. Consistent with earlier social loafing research, students who believed they were the only evaluator reported devoting more cognitive resources to the task compared to their counterparts who thought they were part of a larger group. Moreover, individual responsibility interacted with argument quality such that sole evaluators were more persuaded by the strong arguments and less persuaded by the weak arguments than group ­evaluators. A thought-listing task supported these findings also: Sole evaluators generated more favorable thoughts in response to the strong message and more unfavorable thoughts in response to the weak message than did group evaluators. A third motivational factor known to influence the systematic processing of persuasive arguments is the Need for Cognition (NC). NC reflects certain stable individual differences in people’s tendency to engage in and enjoy effortful ­cognitive endeavors (Cacioppo & Petty, 1982). High NC individuals naturally tend to seek, acquire, and think about information to understand the world around them. Low NC individuals tend to rely on other methods of acquiring information that are less cognitively taxing such as adopting the opinions of others, using cognitive heuristics, engaging in social comparison processes (Cacioppo, Petty, Feinstein, & Jarvis, 1996). NC can be measured using the original 34-item Need for Cognition Scale (NCS; Cacioppo & Petty, 1982) or a shorter 18-item version (Cacioppo, Petty, & Kao, 1984). Both versions have shown to be reliable and valid measures of NC (see Cacioppo et al., 1996, for a detailed review of the NCS’s psychometric properties). The distinction between high and low NC seems tailor-made for predictions about systematic versus heuristic processing. Given their natural pleasure in and proclivity for thinking, high NC individuals should be more willing to expend the cognitive resources necessary for systematic processing than low NC individuals, who in contrast should prefer the less effortful way of heuristic processing. Using meta-analysis, a statistical technique that calculates the effect of a variable across

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multiple experiments, Cacioppo et  al. (1996) analyzed 11 studies and found that high NC individuals are in fact more likely to systematically process persuasive messages than low NC individuals. In five of those studies, researchers had asked participants to directly evaluate the quality of the persuasive message, and those combined results indicated that argument quality had a greater effect on high versus low NC individuals’ ratings as well. Trial simulation research using real and mock jurors has yielded similar findings regarding NC and message processing (see McAuliff, Nemeth, Bornstein, & Penrod, 2003 for a more detailed review of this literature). One study examined how NC, case strength, and eyewitness expert evidence influenced mock jurors’ verdicts in a simulated murder case (Leippe, Eisenstadt, Rauch, & Seib, 2004). Juror NC interacted with case strength such that moderate NC jurors convicted more often than did high and low NC jurors when the case against the defendant was strong. McAuliff and Kovera (2008) varied the internal validity of an expert’s study who testified on behalf of the plaintiff in a hostile work environment case. The expert’s study was either valid or lacked an appropriate control group. High NC jurors found the defendant liable more often and evaluated evidence quality more favorably when the expert’s study was methodologically sound versus ­missing a control group; low NC jurors did not. Why, in comparison to jurors with lower NC, were high NC jurors in Leippe et  al.’s study less likely to convict when the case was strong, whereas high NC jurors in McAuliff and Kovera’s study were more likely to find the defendant liable when the expert evidence was valid? McAuliff and Kovera reasoned that these somewhat inconsistent findings were due in large part to the different evidentiary standards used for defendant guilt in Leippe et  al.’s criminal trial (“beyond a ­reasonable doubt”) and defendant liability in their civil trial (“preponderance of the evidence”). Weak or invalid evidence is much more damaging when jurors must decide whether the case was proven beyond a reasonable doubt than by a ­preponderance of the evidence. Recognizing the strengths of the other side’s case or identifying flaws in the prosecution’s expert evidence via increased systematic processing may be enough to shift the balance in favor of acquittal under the ­criminal standard, but it is much more difficult to do so under the civil standard. This explanation, however, awaits future empirical testing. For the time being, trial consultants and attorneys should bear in mind that the increased scrutiny ­accompanying high NC is likely to reveal both strengths and weaknesses in any case. Such weaknesses may have strikingly different implications for criminal ­versus civil trials given the different evidentiary standards used in each system. Ability-related factors:  Information complexity, prior knowledge, distraction, and repetition.  Both the HSM and ELM assert that motivation is necessary, but not sufficient in and of itself, for systematic processing. Thus, even extremely high levels of motivation must be accompanied by ability in order for an individual to process a persuasive argument systematically. Perhaps the best example of this in legal contexts is the introduction of highly complex evidence such as DNA ­profiling in a criminal trial. Assume for a moment that with the help of a skilled trial ­consultant, a prosecutor successfully selects 12 jurors who are extremely ­motivated to scrutinize

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the trial evidence to ensure that justice is served and all is right in the world. Assume also that the prosecution’s key witness on DNA profiling, Dr. Knowitall, is an extremely intelligent chap yet equally inept in his ability to distil highly ­technical information into concepts that the average layperson can ­understand. Shortly into his testimony, our highly motivated jurors’ eyes roll back in their heads as they find themselves overwhelmed by Dr. Knowitall’s discussion of deoxyribonucleic acid, nucleotides, polymerase chain reaction analysis, short tandem repeats, capillary electrophoresis, and let us not forget random match ­probabilities. Here in all likelihood, the complexity of the expert’s testimony, ­coupled with obvious limitations in jurors’ knowledge of and experience with DNA profiling, would restrict jurors’ ability to process the expert’s testimony systematically even though they are extremely motivated to do so. What are some specific ability-related factors known to affect information ­processing? As illustrated by our DNA profiling example, information complexity and prior knowledge play an important role in systematic processing. Simply put, a person’s ability to scrutinize argument quality is inhibited by highly complex information and enhanced by prior knowledge. Cooper, Bennett, and Sukel (1996) examined evidence complexity by varying the amount of technical and specialized terminology an expert used while testifying about the effects of polychlorinated biphenyls (PCBs) in a products liability case. They predicted that mock jurors in the high complexity condition would be unable to evaluate the expert’s testimony and instead would rely on his credentials (high versus moderate expertise) when ­rendering decisions. Indeed, the results supported this hypothesis: mock jurors in the complex testimony condition were more likely to find for the plaintiff, to believe that the product caused the plaintiff’s illness, and to be confident in their verdict when they viewed the expert with high versus moderate credentials. However, the expert’s credentials did not influence mock jurors’ decisions when the testimony was relatively easy to understand. Additional research has replicated these effects using more basic decision-making tasks as well (Hafer, Reynolds, & Obertynski, 1996; Yalch & Elmore-Yalch, 1984). With respect to prior knowledge, participants in another study read a description of a fictitious new invention that was part of a patent application by a high or low expertise source. Ratneshwar and Chaiken (1991) varied participants’ prior ­knowledge by providing some of them with a detailed diagram of the invention before viewing a written description that everyone read. Prior knowledge ­participants’ attitudes did not differ as a function of source expertise; however, participants without prior knowledge rated the invention more favorably when the patent applicant was a published Stanford University professor with several prior patents compared to an unpublished realtor with no other patents. When asked to list the thoughts they had while reading the product description, prior knowledge participants (versus those without prior knowledge) generated more product-related thoughts and participants without prior knowledge (versus those with prior knowledge) generated more source-related thoughts. In other words, prior knowledge ­participants appeared to focus on what was most important (information about the product) compared to participants without prior knowledge who instead focused on the source of that information.

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Kovera and McAuliff (2000) operationalized prior knowledge as former s­ cientific training in a study of judges’ ability to detect methodological flaws in expert evidence. Florida circuit court judges read one of four versions of a study that the plaintiff’s expert wished to present at trial. The study was either internally valid, lacked a control group, contained a confound, or included the potential for experimenter bias. Kovera and McAuliff predicted that scientific training would moderate judges’ admissibility decisions for the different versions of the expert’s study such that trained judges would be more sensitive to the study’s validity ­compared to their untrained counterparts. As predicted, trained judges (i.e., those who had undergraduate, graduate, or continuing education training in the scientific method) gave higher legal admissibility ratings to the valid study than did judges who lacked scientific training. In contrast, untrained judges gave higher legal admissibility ratings to the confounded study than did scientifically trained judges. Neither group of judges was influenced by a heuristic-cue manipulation of whether the expert’s study was published in a peer-reviewed journal. Distraction and repetition also impact one’s ability to process a persuasive ­argument systematically. Much like information complexity and prior knowledge, distraction limits and repetition facilitates a person’s ability to engage in systematic processing. Petty, Wells, and Brock (1976) tested the effects of distraction on ­message processing by using a dual-task paradigm. Students listened to a strong or weak argument favoring a tuition increase while simultaneously recording where an “X” flashed on the computer screen in front of them. The researchers ­manipulated the level of distraction by flashing the “X” on the screen at 15- (low), 5- (medium), or 3- (high) second intervals in addition to including a no distraction control group. Compared to lower levels of distraction, higher distraction was associated with less favorable responses to the strong arguments and more favorable responses to the weak arguments on an attitude measure and thought-listing task. Moreover, high distraction students recalled fewer elements of the persuasive message than did students from any other distraction level group. Unlike distraction, which hinders systematic processing, repetition can bolster one’s ability to scrutinize the quality of persuasive arguments. Cacioppo and Petty (1985) presented college students a moderately complex audiotaped message ­advocating for comprehensive senior exams either once or three consecutive times. The persuasive message contained arguments that were previously determined to be strong or weak. Students who repeatedly heard the message responded more ­favorably to strong arguments and less favorably to weak arguments than did ­students who heard the persuasive message only once. Similar findings emerged in a second study that incorporated a 10- to 14-day delay between ­students’ single or repeated exposure to the persuasive message and their attitude assessment (Cacioppo & Petty, 1989). These findings may tempt readers to conclude that a linear relationship exists between repetition and systematic processing. That is, as repetition increases, so does one’s ability to scrutinize argument quality. Yet we must not forget that these studies only included moderate levels of message repetition. One question that remains is whether the observed effects would hold at higher levels of repetition. If moderate message repetition increases recipients’ opportunity to scrutinize

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p­ ersuasive arguments, could high repetition backfire by allowing recipients to ­generate more counterarguments or by inducing tedium? And if so, does this occur for elements of the argument with which recipients already agree or support? Cacioppo and Petty (1979) tested these hypotheses on students’ reactions to a persuasive message favoring a tuition increase. They varied pro- or counterattitudinal elements of the message by explaining that the tuition increase would be financed by a visitor’s luxury tax or student fees. Participants heard these elements one, three, or five times. Compared to the single exposure condition, moderate repetition (three times) increased students’ agreement with and favorable reactions to the message when it contained both pro- and counter-attitudinal information. However, as exposure increased from three to five times, students’ attitudes became less favorable (especially for the counter-attitudinal information) and they produced more counterarguments in response to the persuasive message. Students’ ­complaints of boredom also increased with high message repetition. As a whole, studies examining the effects of repetition on persuasion point to one conclusion: moderation is the key! Moderate levels of repetition should increase jurors’ ability to scrutinize argument quality, but excessive repetition may try jurors’ patience and allow them to generate more counterarguments.

Benefits of Systematic Versus Heuristic Processing By now it should be clear that many factors influence one’s ability and motivation to process systematically, but why should trial consultants and attorneys care? What are the benefits of systematic processing for persuaders and their targets? Empirical evidence reviewed by Petty and Cacioppo (1986b) and Petty, Haugtvedt, and Smith (1995) indicates that attitudes formed or changed through systematic processing are (1) more persistent over time, (2) more resistant to counterpersuasion, and (3) serve as better predictors of future behavior than those formed or changed through peripheral or heuristic processing. Petty and colleagues demonstrated the persistence of attitudes formed via ­systematic processing by using the familiar senior comprehensive exam paradigm (Petty, Cacioppo, Haugtvedt, & Heesacker, 1986; cited in Petty & Cacioppo, 1986b). Students listened to a strong or weak argument from a high or low expertise source who advocated for comprehensive senior exams at their university or a ­distant one. Students’ attitudes were assessed immediately after listening to the message and later after a 10- to 14-day delay. Petty et al. predicted that compared to a no persuasive argument control group, both high and low personal relevance students would respond more favorably to the high expertise/strong arguments and less favorably to the low expertise/weak arguments, but for different reasons: high personal relevance students’ attitude change would be fueled by increased systematic processing, whereas low personal relevance students’ attitude change would rely on source expertise. The heightened scrutiny and analysis associated with ­systematic processing should render participants’ attitudes more stable over time

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compared to those formed via heuristic processing. Results supported this ­hypothesis. High personal relevance students responded more favorably to the high expertise/strong argument (versus the low expertise/weak argument) both initially and 2 weeks later. For low personal relevance students, however, the initial difference between these two expertise/argument strength conditions disappeared over time, such that they were no different from control students at the delayed assessment. Thus, the beneficial effects of heuristic processing on attitudes were shortlived compared to systematic processing. Undergraduates in a related study by Chaiken (1980) read a persuasive message that contained two or six arguments, was presented by a likeable or unlikeable source, and had high or low consequences for the students. Chaiken reasoned that the increased topic-relevant cognitions associated with systematic processing for the high consequence students would lead to more persistent attitudes compared to those derived from the source likeability heuristic for the low consequence ­students. Indeed, high consequence students’ attitudes were influenced by the number of arguments offered, but not source likeability, whereas just the opposite was true for low consequence students. A follow-up interview 10 days later demonstrated that attitudes remained relatively stable over time for high consequence students, but declined significantly for low consequence students. Attitudes formed via systematic processing also tend to be more resistant to counterpersuasion. This byproduct of systematic processing is extremely critical to attorneys given the adversarial nature of our legal system. Attorneys know that from the first opening statement to the last closing argument every attempt to persuade jurors in one direction will be met with an attempt to do so in a different direction by opposing counsel. As a result, a persuasive argument can only be successful if it results in an attitude that is strong enough to withstand counterpersuasion. Petty and colleagues examined whether students who processed a persuasive message under conditions that promoted systematic (versus heuristic) processing were better able to resist counterpersuasion (Petty et  al., 1986; cited in Petty & Cacioppo, 1986b). Participants in that study listened to two critical messages from a high prestige source that were interspersed with filler messages. The first critical message contained strong arguments in favor of comprehensive senior exams and the second contained arguments against them. Half of the students listened to the pro-exam message under conditions that promoted heuristic processing (low ­personal relevance, high distraction) and the other half listened under conditions favorable to systematic processing (high personal relevance, low distraction). On average students responded less favorably to the exams after receiving the anti-exam message; however, those who processed systematically (as evidenced by providing more issue-relevant thoughts) were more resistant to the counterpersuasive message than those who processed heuristically. Systematic processing also has been associated with increased consistency between attitudes and behavior. Quite often persuasive arguments targeting attitude change are simply a means to an end with that end being some desired change in behavior. From a practical standpoint, adopting the attitude that smoking is unhealthy or unprotected sex is dangerous is virtually meaningless unless those

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attitudes are accompanied by a corresponding change in behavior, such as quitting smoking or wearing a condom. The same logic applies to legal settings as well. Siding with a particular attorney’s persuasive arguments in a civil case means very little if the juror does not actually vote for or against the defendant’s liability in a manner that is consistent with his/her newly adopted attitude. Because attitude/ behavior consistency is the name of the game at trial, research demonstrating that systematic processing can increase the strength of this relationship is particularly relevant to trial consultants. One such study that we discussed earlier (Petty et al., 1983) varied the argument quality and personal relevance of a magazine ad for a new disposable razor. High personal relevance students found the strong versus weak arguments more ­persuasive, whereas the low personal relevance students did not differentiate between the two. In addition to measuring product-related attitudes, Petty et  al. asked students how likely they were to buy the new razor when it became available locally. The attitude/behavior correlation was stronger for students in the high ­personal relevance condition who processed systematically (r = 0.59) compared to those in the low personal relevance condition (r = 0.37). Thus, systematic ­processors intend to behave in a way that corresponds with their new attitude. However, as we all know, just because someone intends to behave a certain way does not necessarily mean that she/he actually will (think about your last New Year’s resolution, for instance). Do studies offer more concrete evidence of attitude/behavior consistency by incorporating measures of actual behavior? Research by Cacioppo, Petty, Kao, and Rodriguez (1986) examined the voting behavior of college students in the 1984 presidential election. Those researchers took a subset of respondents from an earlier survey who were either high or low in the Need for Cognition and asked them to list everything they knew about the presidential candidates. They predicted that the increased levels of systematic processing documented in high NC students would lead to greater attitude/behavior consistency compared to low NC students who have been shown to process persuasive messages more heuristically (Cacioppo & Petty, 1982). Several days after the election, the researchers phoned students to determine their voting behavior. The attitudes of high NC students were better ­predictors of actual voting behavior than those of low NC students (rs = 0.86 and 0.41, respectively). To summarize, research has documented several beneficial effects of systematic versus heuristic processing that are of great relevance to trial consultants and attorneys. Attitudes formed or changed through systematic processing tend to be more persistent over time, more resistant to counterpersuasion, and better predictors of future behavior than attitudes formed or changed through heuristic processing.

A Closer Look at Heuristic Processing Up to this point we have focused almost exclusively on factors that influence whether someone processes a persuasive message systematically and the benefits

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associated with this more effortful, elaborate level of processing. Yet our review of the HSM and ELM would be incomplete without considering heuristic processing. Earlier we distinguished heuristic from systematic processing by noting that it is a less effortful, more superficial type of processing that relies not on argument ­quality, but instead on distal cues related to the persuasive message, its source, or others’ reactions to the message. Heuristic (versus systematic) processing is generally described as a less accurate response to persuasion because heuristic processors may be persuaded by weak or invalid arguments in the presence of certain cues that we will discuss shortly. Although this may be true, we urge readers to avoid overlooking heuristic processing altogether for several reasons. First, recall both the HSM and ELM propose that motivation and ability are prerequisites for systematic ­processing; if either one is low or missing, then an individual will be forced to process heuristically. Second, even if motivation and ability to process are high, both models also assert that systematic and heuristic processing can co-occur, so in some instances high-quality messages may be bolstered by complementary heuristic cues (e.g., strong, valid arguments from a high expertise source). Such additive effects of systematic and heuristic processing emerged in an experiment by Maheswaran, Mackie, and Chaiken (1992) in which participants’ product evaluations were jointly influenced by a favorable brand-name heuristic and important product attributes when they thought the judgment task was highly important. Finally, there may be certain situations (particularly when a persuasive argument is weak or invalid) in which the persuader wants to encourage heuristic processing even if the targets of the persuasive message are motivated and able to process systematically. For these reasons, heuristic processing is significant in its own right even if it lingers in the formidable shadow of its systematic counterpart. We must be clear from the outset that the HSM and ELM differ slightly in their treatment of heuristic processing. Although both models define or characterize this level of processing similarly, the “devil is in the details” so to speak, and this is where critical differences lie. The ELM proposes that certain variables such as source expertise, source likeability, consensus information, message length, and audience response influence persuasion when individuals process heuristically. These same variables are relevant to persuasion and heuristic processing in the HSM as well. However, the HSM takes matters a step further by delineating simple decision-rules or “heuristics” involving these various cues that guide heuristic ­processors’ judgments and reactions to persuasive messages. Whereas the ELM specifies that source expertise, source likeability, consensus information, message length, and audience response affect heuristic processing, the HSM asserts that people develop and rely on specific judgment-relevant heuristics such as “Experts’ statements can be trusted,” “People generally agree with people they like,” “Consensus implies correctness,” “Length implies strength,” and “If others think the message is correct, then it is probably valid” (Chaiken, 1980; Chaiken et al., 1989). These heuristics contain information about the nature and valence of judgments that result from certain cues in persuasive contexts. What difference does this make? In reality, perhaps very little for trial ­consultants and attorneys because many of the implications are theoretical in nature and exceed

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the scope of this chapter. Perhaps all that really matters from an applied perspective is that psychologists examining these variables have observed similar results ­irrespective of their HSM or ELM orientation. Nevertheless, we encourage readers to keep in mind several points. First, because the HSM implicates specific judgmentrelevant heuristics, heuristic processing is limited by certain social-cognitive principles of knowledge activation and use (Chen & Chaiken, 1999). In short, ­heuristics must be available (stored in memory), accessible (retrievable from memory), and applicable to the judgment task at hand (relevant). Heuristic ­processing as conceptualized by the ELM does not explicitly share these ­constraints. Second, whereas the HSM articulates specific heuristics associated with certain source-, message-, and audience-related cues, the ELM contends that people may process these same cues either heuristically or systematically. Evidence for the systematic processing of a heuristic cue was found in a study by Heesacker, Petty, and Cacioppo (1983), who observed that source expertise increased persuasion only when the quality of a message was high. They reasoned that high source expertise caused participants to scrutinize the persuasive message more carefully than when expertise was lacking. In this sense, the ELM framework may better accommodate the possibility that some cues stimulate both heuristic and systematic processing. Finally, the ELM affords a certain flexibility regarding the inferences drawn from heuristic cues that the HSM lacks. People exposed to the same cues (e.g., source expertise) may draw strikingly different conclusions than those put forth by Chaiken (e.g., “Experts’ statements can be trusted”). Mock jurors in one experiment found a highly paid expert witness to be less likeable, less believable, and less influential when his testimony was highlyversus moderately-complex (Cooper & Neuhaus, 2000). These results suggest that “not all experts can be trusted, especially when they are well-paid” which directly contradicts the HSM expertise heuristic. We must keep in mind that the heuristics described in the HSM are prototypical and nonexhaustive. They may interact with or be overridden by other competing heuristics (e.g., “Everybody has their price”) and may vary by virtue of the situation or setting (e.g., watching a television commercial versus listening to courtroom testimony). We now turn to empirical research demonstrating that certain cues influence persuasive judgments, particularly when motivation or ability to process systematically is low. Be comforted (and not alarmed) if some of these studies seem strangely familiar. Careful readers will have noted that HSM and ELM persuasion ­experiments typically manipulate some heuristic cue in addition to argument quality and the ability- or motivation-related factors we have already covered. These “­wallflower” heuristic cues will now take center stage. The first three cues we review (expertise, likeability, and consensus) all relate to the source of the persuasive message. The fourth cue focuses on the properties of the message itself (length or number of ­arguments) and the fifth involves how others react to the message (audience response). Source Expertise and “Experts’ Statements Can Be Trusted.”  Psychologists have operationalized source expertise a variety of different ways in persuasion research. Despite these differences, a remarkably consistent body of findings has emerged: higher levels of source expertise enhance persuasion for heuristic processors. Two

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experiments we reviewed earlier included similar manipulations of source ­expertise. Students in the Petty et  al. (1981) study heard recommendations for university policy changes that were ostensibly prepared by a Princeton University professor chairing the Carnegie Commission on Higher Education (high expertise) or a local high school class (low expertise). Students who did not think the recommended changes would directly affect them were more easily persuaded by the high versus low expertise source; however, no such difference emerged for students who thought they would be affected. Instead, these high personal relevance students relied on argument quality when reacting to the persuasive message. Ratneshwar and Chaiken (1991) asked students to review fictitious patent applications for a new invention that were submitted by either a published Stanford University professor with several prior patents (high expertise) or an unpublished realtor with no prior patents (low expertise). When students’ ability to comprehend the persuasive ­message was low (due to limited exposure or the absence of prior contextual ­knowledge) they responded more favorably to the high rather than the low expertise inventor. Researchers in a third study factorially-crossed the expertise of a spokesperson who appeared in a television commercial for a bank ATM and the amount of ­quantitative information (numeric percentages) the commercial contained (Yalch & Elmore-Yalch, 1984). Participants who received the quantitative information relied on source expertise to evaluate the commercial. They were more easily persuaded by a bank vice president who had helped develop the ATM (high expertise) versus a bank customer who had merely volunteered to appear in the commercial (low expertise). The attitudes of participants in the nonquantitative commercial ­condition did not differ as a function of source expertise. What are we to conclude based on this research? Expertise matters, especially for individuals who are either unable or unmotivated to process a persuasive ­message systematically. What remains less clear, however, is the exact nature of these expertise effects. On the one hand, the status of the source (i.e., being an Ivy League university professor or a bank vice president) might drive the effects. On the other hand, it is equally plausible that the effects might emanate from the source’s perceived relevant knowledge of and/or experience with the key topic (i.e., university curricula, successful patents, or the development of an ATM). In reality these factors often go hand-in-hand so the confounding of these different ­dimensions of expertise is understandable. Yet at the same time it is not difficult to imagine a situation in which a more sophisticated understanding of the source expertise effect would be desirable. For example, an attorney might be faced with the difficult ­decision of obtaining the services of a newly hired professor at a prestigious ­university (low experience, high status) versus a veteran professor at a more modest university (high experience, low status). By conducting experiments that ­independently manipulate these different dimensions of expertise, psychologists can help ensure that attorneys and their clients get the most “bang for their buck.” Source Likeability and “People Generally Agree with People They Like.”  Source likeability can greatly impact our cognitive responses to persuasive messages, ­particularly under conditions that promote heuristic processing (i.e., low ­motivation,

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low ability). Chaiken (1980) varied whether students liked the source of a ­persuasive message by having him compliment or insult undergraduates (Study 1) or their university (Study 2). In the first study, for example, the source said that he enjoyed (didn’t enjoy) working with undergraduates, found them to be mature and ­responsible (immature and irresponsible), and claimed that society did not give them the respect they deserved (gave them more respect than they deserved). Students in a low response involvement condition were more easily persuaded by the likeable versus unlikeable source. In contrast, high response involvement ­students’ judgments were based on the number of valid arguments presented by the source and not on whether they liked him. A second study in which Chaiken directly asked students whether they typically agreed/disagreed with people they liked/disliked revealed only partial support for the likeability heuristic. Consistent with predictions from the HSM, low (versus high) message relevance students reported greater use of the heuristic when they received five valid arguments from an unlikeable source. However, the results were exactly the opposite when students received only one valid argument from a likeable source: high (and not low) message ­relevance students reported using the heuristic more frequently. One possible ­interpretation of this effect according to Chaiken is that high message relevance students believed that one argument was insufficient to evaluate the persuasive ­message and therefore found it necessary to consider source likeability as well. Wood and Kallgren (1988) presented students with a persuasive argument against environmental preservation while independently varying the source’s ­likeability. The message source was a transfer graduate student who either praised the new faculty and students compared to his old university (likeable) or criticized them as being inferior, less responsible, and less mature (unlikeable). Students who listed fewer beliefs and behaviors associated with environmental preservation after reading the argument found the likeable source to be more persuasive than the unlikeable source. Wood and Kallgren reasoned that these students’ limited ability to recall topic-relevant beliefs and behaviors forced them to rely more heavily on the likeability heuristic cue than those with medium or high recall ability. Much like source expertise then we see that increased likeability has a positive effect on persuasion for heuristic processors. One potential explanation for this outcome is known by social psychologists as the similarity hypothesis or the “likeness-leads-to-liking” effect (Myers, 2008). In essence, we are drawn to and resonate with people who we perceive are similar to ourselves. The basis for this perceived similarity varies across individuals and situations, but typically involves shared attitudes, beliefs, experiences, values, and even levels of attractiveness. According to this explanation, one reason that students in the aforementioned experiments liked the message source was that he espoused attitudes that were consistent with their own such as being fond of undergraduates and their university. Liking those who appear to be similar to us serves a self-validating function and may be reinforced by the “false consensus effect” or our tendency to overestimate the commonality of our opinions (Marks & Miller, 1987). No matter what the exact cause may be, one thing is clear: likeable sources are more persuasive, especially for those who do not scrutinize argument quality carefully.

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Consensus Information and “Consensus Implies Correctness.”  Consensus refers to the level of agreement shared by a majority of individuals within a given group (think “Four out of five dentists recommend Trident to patients who chew gum”). Consensus information can serve as a heuristic cue that increases persuasion in certain circumstances. Harkins and Petty (1981) conducted a series of studies examining what they referred to as the “multiple source effect.” They presented students with strong or weak arguments from one or three sources and found that multiple sources amplified the effects of both strong and weak arguments on ­students’ persuasion. Specifically, students found the multiple source/strong ­arguments most persuasive and the multiple source/weak arguments least ­persuasive compared to when the same arguments were presented by a single source. Thus, there appears to be “strength in numbers” such that having a larger number of people agree on an advocated position is more persuasive than having an individual advocate the same exact position alone. This especially may be the case when the multiple sources appear to have reached their opinions or positions independently of one another (Harkins & Petty, 1987). Does the way in which source-related consensus information is framed influence persuasion? Harkins and Petty presented the raw number of people who agreed with a particular position and all of them were in complete agreement. Do similar effects emerge when absolute consensus is lacking or when the information is ­presented as a numeric percentage? Recent research suggests that the answer to this question is yes. Martin, Hewstone, and Martin (2007) used a variant of the ­comprehensive senior exam paradigm and had students read arguments favoring the introduction of oral examinations for undergraduates. Students who thought they would not have to take the exams (Study 1) or who engaged in a cognitive ­orientation task that facilitated superficial processing of the arguments (Study 2) relied on consensus information instead of argument quality when forming their attitudes. Specifically, learning that 9 out of 11 students from a recent focus group were in favor of the proposed oral examinations was extremely persuasive to these participants, yet the consensus information did not influence systematic processing as measured by their production of message-congruent thoughts. Darke et  al. (1998) also examined the effects of consensus information but included an additional methodological wrinkle by varying the size of the group from which the consensus information was drawn. Students read a proposal ­advocating for comprehensive senior exams along with a fictitious opinion poll indicating that 80% of 10 (or 1,000) students agreed (or disagreed) with the senior exam policy. Students who were led to believe that the policy would not affect them (low motivation) relied on the consensus information irrespective of sample size. In contrast, highly motivated students who thought they would be affected were only persuaded by consensus information from the larger (and thus more reliable) ­opinion poll. Interestingly, additional path analyses revealed that the reliable ­consensus information prompted both heuristic and systematic processing in highly motivated students. Consensus information directly affected their attitudes ­(heuristic processing) but also influenced students’ positive or negative thoughts about the issue which in turn influenced their attitudes (systematic processing).

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At least one study indicates that even more loosely-defined conceptualizations of consensus can serve as a heuristic cue for decision-makers in legal settings (Kovera, McAuliff, & Hebert, 1999). Mock jurors read expert testimony that varied in quality as part of a simulated hostile work environment case. Kovera et al. also manipulated the extent to which the expert’s research was “generally accepted within the scientific community” by reporting that it had been published in a ­peer-reviewed journal and cited in major psychological textbooks or not. Mock jurors believed the expert was more trustworthy and that her testimony was more valid when the general acceptance of her research was high versus low ­(unpublished and not cited widely by other psychologists). Collectively these experiments show that source-related consensus information can be extremely persuasive when processing messages heuristically. This effect seems to be quite robust as it emerged irrespective of whether the consensus ­information included raw numbers or percentages, conveyed complete or ­incomplete unanimity, relied on samples relatively large or small in size, or was “generally accepted” or not. Moreover, at least one study demonstrated that consensus ­information can stimulate systematic processing under conditions of high ­motivation when reliable consensus information is available. Message Length and “Length Implies Strength.”  People may make superficial judgments about the quality of a persuasive message based simply on its length or the number of arguments it contains. Essentially messages that are longer (versus shorter) or contain more (versus less) arguments are more persuasive to individuals who are processing heuristically. Such an effect would not be problematic if the additional length or number of arguments actually improved the overall quality of the persuasive message; however, recall that by definition heuristic processors are making judgments irrespective of message quality. Hence they may react more favorably to a message that contains a larger number of weak, invalid arguments than one that contains a fewer number of strong, valid arguments. The same can be said for length. Petty and Cacioppo (1984) were among the first psychologists to study the ­relation between the number and quality of arguments contained in a persuasive message. In typical fashion, students read a persuasive message advocating for comprehensive senior exams under conditions of high or low personal involvement. The message contained either three or nine arguments, all of which were either strong or weak. Increasing the number of persuasive arguments enhanced ­persuasion for low personal involvement students irrespective of message quality. As the ­number of arguments increased from three to nine, both strong and weak messages became more persuasive. For high personal involvement students, however, ­increasing the number of arguments magnified the effects of argument quality in opposite directions: nine (versus three) strong arguments were more persuasive and nine (versus three) weak arguments were less persuasive. Unlike Petty and Cacioppo (1984), researchers in a second experiment kept the number of arguments constant and varied only the length of the arguments ­contained in the persuasive message (Wood, Kallgren, & Preisler, 1985). Students in that experiment read an anti-environmental preservation message containing three arguments that systematically varied in quality and length. Students who listed fewer

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beliefs and behaviors associated with environmental preservation after reading the argument found the long message more persuasive than the shorter one. Wood et al. reasoned that these students’ limited ability to recall topic-relevant beliefs and behaviors forced them to rely more heavily on the length heuristic cue compared to those with medium or high recall ability who instead relied on ­message quality. What information can we glean from these findings? Increasing the number and length of arguments contained in a message should increase persuasion even if the arguments are weak as long as the persuasion targets are unmotivated or unable to process systematically. If persuasion targets are processing systematically, then increasing the number and length of arguments can enhance persuasion as long as the arguments are strong. Persuaders must be wise and choose carefully though because increasing the number and length of weak arguments will most likely ­backfire by decreasing persuasion for systematic processors. Audience Response and “If Others Think the Message Is Correct, Then It Probably Is.”  The audience response heuristic cue involves how others react to a persuasive message. Pioneering psychological research on conformity by Sherif (1936) and Asch (1951) demonstrated that the way people perceive and respond to information can be greatly influenced by others’ perceptions and responses. Participants in those early studies modified their judgments of how much a point of light appeared to move or whether two blatantly incongruent lines matched in length based on other people’s judgments. Are individuals, particularly those who are processing a message heuristically, equally swayed by more ambiguous ­information provided by audience members such as their physical and/or emotional reactions? Is a person more likely to agree with a persuasive message when others respond by clapping their hands or cheering than when they do not? Chaiken and her colleagues empirically addressed this question using an ­innovative audience response manipulation (Axsom, Yates, & Chaiken, 1987). Students who were high or low in personal involvement (i.e., were told the ­experiment was “crucial” about an “important issue” versus that it was a “very ­preliminary test of an idea”) listened to strong or weak arguments in a tape-recorded debate on the use of probation as an alternative to prison. Half of the students heard a large group of individuals clapping and cheering loudly during the debate ­followed by thunderous applause at the end compared to the remaining students who heard only one or two clappers and a “barely polite smattering of applause.” Axsom and colleagues hypothesized that the enthusiastic audience response would enhance persuasion by serving as prima facie evidence that the speaker’s conclusions were valid. Data from the low personal involvement students supported this hypothesis. They had more favorable attitudes about probation when they heard the enthusiastic (versus unenthusiastic) audience response. High personal involvement students, ­however, were only persuaded by the strong arguments in favor or probation and not audience reaction. The expectation that jurors will respond to a trial attorney’s arguments with a standing ovation or a shower of rotten fruit is absurd, albeit amusing. Still other more subtle reactions of audience members, including judges, probably do ­influence jurors’ attitudes in court. Collett and Kovera (2003) examined this ­possibility by varying a judge’s nonverbal behavior during the presentation of the

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plaintiff’s or defendant’s case in a videotaped civil trial simulation. The judge responded positively by nodding, smiling, leaning forward, and listening attentively or negatively by fidgeting, drumming his fingers on the bench, leaning back in his chair, and playing with his watch and pen. Mock jurors who saw the judge respond positively to the plaintiff’s case and negatively to the defendant’s case (pro-plaintiff condition) were more likely to find the defendant liable and responsible for the plaintiff’s injuries than jurors in a pro-defense condition. Moreover, jurors expressed greater confidence in their verdicts when the judge’s behavior was congruent with the strength of the plaintiff’s evidence than when it was incongruent. These findings, while certainly important in their own right, become even more potent when considered in conjunction with a body of literature documenting what is known as the “chameleon effect” (Chartrand & Bargh, 1999). This term refers to our nonconscious tendency to mimic the postures, mannerisms, facial expressions, and other behaviors of those with whom we interact. If the chameleon effect is present in court (and there is no reason to believe it is not), then we can expect jurors to mirror or adopt nonverbal certain nonverbal behaviors they see displayed by others including the judge, attorneys, and witnesses. These newly acquired ­nonverbal behaviors may affect jurors’ attitudes and reactions to persuasive ­messages as well. An ingenious study by Wells and Petty (1980) led participants to believe they were part of a consumer research study on the sound quality of stereo headphones. They told students that the manufacturer was especially interested in how the headphones tested during physical movement and asked students to move their heads in an up– down (nodding) or side-to-side (shaking head no) direction while listening to a radio news editorial on raising or lowering college tuition. When later asked how much college tuition should be, vertical (nodding) students were more likely to agree with the message regardless of whether it advocated for more or less tuition compared to horizontal (head-shaking) students. According to Wells and Petty, up–down movements were compatible with and facilitated the production of favorable thoughts, whereas just the opposite was true with side-to-side movements. Linking these findings together we see that at least one experiment has shown that audience reactions in the form of applause can influence persuasion for individuals who are low in personal involvement. Even more subtle reactions from others, such as smiling or listening attentively, can impact attitudes in legal contexts. Finally we raise the possibility that audience reactions might affect jurors’ attitudes through the chameleon effect. Mimicking observed nonverbal behaviors such as nodding (or shaking the head no) may facilitate (or hinder) persuasion in court. This last possibility, however, awaits future empirical testing.

Beyond the HSM and ELM: Implications for Trial Consultants and Their Clients We began this chapter by asserting that the key to successful litigation is an attorney’s ability to persuade. Our review of the theoretical background and empirical support for two information-processing models of persuasion has revealed a wealth of

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information that trial consultants can use to help inform and maximize their advice to clients when preparing for court. Unlike social scientists who revel in the intricacies of experimental research, we realize that trial consultants ­understandably are more concerned with the implications of this research for their practice. To this end, we have distilled the extensive psychological literature reviewed into five key findings that we believe have significant implications for trial consulting.

1.  S  ystematic Processing Affords Attorneys Several Advantages over Heuristic Processing Attitudes formed or changed through systematic (versus heuristic) processing are more persistent over time, more resistant to counterpersuasion, and better predict future behavior. From an attorney’s viewpoint, each of these characteristics is desirable for jury decision making in any type of case. Attorneys must be confident that any attitude change resulting from persuasion will persist beyond the point of induction to jury deliberations, even if most trials only last a few days (Mecham, 2005). The formation of attitudes that are resistant to counterpersuasion is also of paramount concern to attorneys given the adversarial nature of our legal system. Newly formed attitudes are vulnerable to attack at several junctures during a trial: cross-examination, presentation of opposing counsel’s case, and closing arguments; therefore, attorneys must do everything in their power to maximize the resiliency of attitudes that favor their clients. Finally, the culminating event in any trial is jury deliberations, when jurors argue amongst themselves about their verdict and must persuade each other. When all is said and done it simply is not enough for jurors hold attitudes that have persisted through the trial and resisted counterpersuasion; these attitudes must translate into a favorable verdict. This positive outcome is more likely to occur when jurors process strong persuasive arguments systematically rather than heuristically. From a practical standpoint, there are several strategies that can maximize the advantages of systematic processing. First, as we discuss below, attorneys should try to identify individuals who are more likely to be systematic processors during jury selection. While it is true that many venire members with personal knowledge or experience with a specific case, industry, type of injury, etc., would be struck for cause or via peremptory challenge, those with personal experience in a particular area are more likely to process complex information systematically. Attorneys also should look for indicators that a juror would be motivated, have a high Need for Cognition, or believe the case is personally relevant to himself/herself. For example, a plaintiff in an antitrust case who is claiming that she/he was barred from entering a market might want to have a consumer in that particular market on the jury because that juror would feel personally connected to the parties (especially the plaintiff), their actions, and the outcome. That juror also would feel motivated to make sure the market she/he participates in is open and competitive. Witness testimony is another area in which trial consultants can have a direct impact on jurors’ level of processing. Jurors are more likely to engage in heuristic

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processing when they cannot comprehend a witness’s testimony. This problem is frequently encountered with expert testimony, but can be an issue with any type of witness. Striving to make witness testimony easily comprehensible will facilitate systematic processing. Trial consultants typically watch the videotape or read the transcript from the witness’s deposition (if there was one) and attend the ­preparation sessions with the witness and attorney. Some key factors to pay attention to are how concisely the witness answers the questions and how much jargon or terms of art the witness uses (see Brodsky, 1991, 2004 for more information regarding expert witness testimony). Most witnesses do not know or understand who the jurors are, what their backgrounds are, or what jurors expect from witnesses. A trial consultant can help the witness understand his/her intended audience. Many trial consultants tell witnesses to assume the jury collectively has an eighth grade comprehension level, although this varies slightly from venue to venue. Finally, witnesses often are not aware of their use of jargon or industry terms. Drawing attention to highly ­specialized terminology, suggesting substitutions, and rehearsing the new ­testimony can help ensure that witnesses speak in a way that jurors understand. A third way in which trial consultants can help increase the use of systematic processing is through the use of focus groups or mock trials. One main goal of many focus groups is to find out how well jurors can understand the case and to help the attorneys determine which parts of the case are difficult for laypersons to understand. Referring back to our previous antitrust example, antitrust cases include very complex economic evidence as well as extensive evidence on a ­particular industry and market. Most of this evidence is well beyond the scope of jurors’ personal knowledge, so it will all be new to them at trial. A trial consultant can determine how much education a jury needs in a particular area in order to be able to make good decisions. For example, jurors might not need to know the ­minutiae of how the refrigerator industry operates for the purposes of the trial, but they will need to know information such as who buys refrigerators and why, who a certain refrigerator manufacturer’s competitors are, what their market shares are, and so on. Some of this evidence can be presented in a focus group and juror ­comprehension can be tested through questionnaires, mock deliberations, and additional questions and answers. The attorneys and trial consultant can determine how to best explain these new concepts and complex information in a way that is easiest to understand.

2. Systematic Processing Can Disadvantage Attorneys When Persuasive Arguments Are Weak Despite the advantages cited above, trial consultants must remember that systematic processing can lead to undesirable results as well, particularly when persuasive arguments are weak. Systematic processing is defined by careful attention to argument quality. Jurors who are motivated and able to process systematically will be more adept at detecting flaws in weak arguments and will find them less persuasive compared to jurors who process heuristically. As such, attorneys who realize they are

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burdened with weak arguments or unfavorable evidence should do everything in their power to increase jurors’ reliance on heuristic processing. This would include minimizing the presence of certain ability-related factors required for systematic processing such as low distraction, high repetition, and low information complexity. One common, although ethically questionable, trial tactic would be the “baffle them with bullshit” technique in which an attorney presents his/her case in a way that deliberately increases jurors’ cognitive load. This strategy is appealing for an attorney with a weak case because it inhibits jurors’ ability to recognize the weaknesses in his/her case and at the same time restricts jurors’ ability to recognize the strengths of the opposing attorney’s case. This tactic may be particularly effective when the complex information is paired with a heuristic cue such as expertise. The expert’s highly complex, albeit weak, testimony should decrease jurors’ ability to scrutinize the arguments presented by both sides and increase their reliance on other heuristic cues such as the expert’s credentials or academic pedigree in lieu of argument quality. In the unlikely event that an attorney’s entire case is weak (as opposed to one or two arguments) and she/he has not settled, motivation-related factors may come into play when selecting a jury. Specifically, jurors who do not see the case as personally relevant, do not see themselves as personally responsible for its outcome, or who are low in the Need for Cognition would be optimal decision-makers for an extremely weak case. Finally, including and drawing attention to other heuristic cues such as likeability may also lead to a favorable response from jurors despite flawed arguments or evidence.

3. Motivation and Ability Play a Critical Role in Determining Jurors’ Level of Processing By now it should be clear that motivation and ability serve an important ­gatekeeping function for systematic processing; if either one is low, we can expect jurors to process persuasive arguments heuristically. What becomes critical from a trial ­consulting perspective then is (1) assessing certain motivation- and ability-related factors; and (2) modifying them if necessary. These tasks conveniently map onto two different phases of a trial: the voir dire (jury selection) and the actual trial itself. First, with respect to assessment, trial consultants and attorneys should take full advantage of jury selection (to the extent possible) to ferret out differences in jurors’ motivation or ability that could potentially impact their decision making (see Crocker & Kovera, Chap. 2). Jury selection procedures vary considerably across jurisdictions and judges; however, attorneys typically are allowed to submit proposed voir dire questions to the judge, or in rarer circumstances might be able to administer pretrial questionnaires to venire panel members. Including items that assess potential jurors’ Need for Cognition (motivation) or their prior knowledge of specific trial-relevant information (ability) would provide useful insight regarding the likelihood of systematic and/or heuristic processing. Typically the judge begins voir dire with a series of basic questions that target jurors’ demographics as well as

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whether they will be able to decide the case fairly and follow the judge’s ­instructions. The attorneys’ involvement in voir dire varies wildly, depending on the venue and the judge. In many federal jurisdictions the judge will do most, if not all, of the questioning. The judge might permit some attorney follow-up, but that follow-up might be very limited (e.g., 20 min for the 14 seated in the jury box or even for the entire venire). In state court it is more likely that the attorneys will be permitted some time for questioning, but not always, and the amount of time they get varies by venue and judge. If time is limited, attorneys must carefully weigh the usefulness of a question against the allotted time. If voir dire questions are submitted to the judge, it is important that the questions be as neutral as possible. Questions that sound as though they are attempting to identify strengths or weaknesses in one side’s case are not likely to be asked. If for some reason questions from the Need for Cognition Scale are not likely to be asked, a juror’s education or occupation might serve as a loose proxy for this construct. For example, if a juror has a fairly high-level position, supervises others, makes important decisions at work, etc., that juror is likely to have a high NC because his/her job tasks are fairly sophisticated and cognitively demanding. If a juror has relatively little decision-making power at work or has an occupation that seems beneath his/her education level (e.g., someone with a Master’s degree who works behind a counter in a convenience store), that person might have a low NC. This is not a hard and fast rule (and certainly not an ­exhaustive list of occupations that might indicate a juror’s NC) but in some cases this is as close to asking about NC as one can get. Finally, anticipation that a juror might be distracted for some reason can be grounds for a cause challenge. If the juror disagrees that she/he would be distracted the judge most likely would not grant the cause challenge, but sometimes jurors do not want to admit they cannot stay focused because of something going on in their lives. Asking them about it can give them permission to admit they would be distracted and some judges would dismiss those jurors for cause. The jury selection process may also provide attorneys the opportunity to modify certain motivation-related factors that affect persuasion (again, depending on what the judge permits). If systematic processing is desired, for example, attorneys may wish to emphasize to potential jurors how the case is personally relevant (e.g., affects the community, taxpayers, parents) and how they are responsible for the outcome of the case (e.g., have the power to ensure that justice is served or to send a message to the megaconglomerate corporation). If voir dire is extremely limited such that there is no juror questionnaire or attorney-conducted voir dire (as in many federal cases), the opening statement ­provides another avenue to increase jurors’ motivation and emphasize the case’s relevance. The opening statement is the first real opportunity to tell the jurors what the case is about. Attorneys must also take this opportunity to tell jurors why they should care. Trial consultants can assist with developing both jury selection strategy (including drafting voir dire questions) and the opening statement. Trial consultants can provide feedback on the opening statement script, observe a rehearsal of the opening statement, and can even conduct a focus group in which mock jurors observe simulated opening statements for both sides and provide feedback. Other ability-related factors may come into play during the trial itself, such as information complexity, distraction, and repetition. Again, assuming that systematic

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processing is the desired outcome, attorneys may need to make a motion for recess if jurors seem distracted due to fatigue, and attorneys should use repetition in their arguments to tie together their opening statements, case-in-chief, and closing arguments. Recent jury reforms aimed at improving juror comprehension (e.g., juror notebooks, mini-summations, allowing jurors to submit questions to witnesses, notetaking, and discussing the evidence during the case) are permitted in many states (the number of states that permit them depends on the specific practice). However, some judges do not encourage their use and jurors may not know that they are permitted. An attorney who is particularly concerned about complexity and systematic processing should request that the practices be utilized and that jurors are encouraged to make use of them. Moreover, demonstrative aids such as PowerPoint slides or animations can reduce the complexity of certain testimony such as DNA evidence or other highly-technical information (see Nemeth, Chap. 10, for a review of demonstrative aids and their potential effects, both intended and unintended).

4­.  H  euristic Cues Should Not Be Overlooked, Even When Persuasive Arguments Are Strong We cannot stress the importance of heuristic cues enough. Even when persuasive arguments are strong, attorneys must be sure to include and emphasize heuristic cues that complement argument quality such as expertise, likeability, and consensus. Doing so will help guide jurors’ persuasion should they be unmotivated or unable to process the strong arguments systematically for some reason. There are always varying levels of motivation and ability within a group, and every case should have something for every juror. Also recall there is some evidence that heuristic cues enhance persuasion even when motivated and able individuals are processing systematically. In this sense, heuristic cues are a “win/win” such that they can guide persuasion in the absence of systematic processing and can bolster persuasion when systematic processing is occurring. Finally, the utility of heuristic cues for “dressing up” weak arguments is much more obvious, but equally important, when trying to persuade jurors while minimizing their attention to argument quality.

5.­  Heuristics Must Be Available, Applicable, and Accessible to Influence Juror Decision Making The HSM stresses that heuristics must be available, applicable, and accessible to influence jurors’ decisions. Focus groups may be one effective tool to test whether similar jury-eligible citizens hold certain heuristics, find them relevant to the case facts, and can access them when making trial-related judgments. As we saw earlier in the study involving the highly paid expert, more general heuristics such as those proposed by the HSM may be modified or overridden by additional information presented at trial; therefore, it is critical to assess jurors’ heuristics in as realistic manner

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as possible by including as many of the facts, evidence, and arguments that are ­anticipated at trial as possible. If certain desirable heuristics prove unavailable to most jurors, trial consultants can use focus groups and trial simulations to examine ways in which attorneys can make these heuristics available, applicable, and accessible. For example, it is unlikely that jurors in the O.J. Simpson case ever considered the gloverelated heuristic “if it doesn’t fit, you must acquit” prior to the case. However, the defense attorneys in that case were able to introduce this heuristic during the trial, and they used it repeatedly to secure Simpson’s acquittal. If attorneys intend to introduce heuristics at trial that are not already available to jurors, they must ensure that jurors (or other likeminded ­individuals) find these heuristics applicable to the case at hand and are able to access them once they are introduced. Another way of thinking about heuristics is as case themes. Every case can be summarized into four or five main themes or storylines and each theme should be couched in a concise tagline or sound byte. For example, typically the plaintiff in a products liability case is an individual(s) who is suing a large corporation that manufactures a product that she/he claims is defective. A theme the plaintiff will probably want to focus on is that of size and resources–the defendant is a huge company that had the resources to do more testing, put warning labels on a product, or whatever would have prevented the problem at hand. Furthermore, the plaintiff will argue that the company chose to save money and not take the protective ­measure and in doing so put the regular purchaser at risk. A case such as this would entail a great deal of both fact and expert evidence, some of which may be easier to process than others. Irrespective of what jurors understand at trial, the plaintiff will want to ensure that jurors go into deliberations remembering one thing: the defendant chose profits over safety. This single phrase provides a heuristic for jurors to fall back on by simplifying a complex, extensive part of the case. If during their deliberations jurors do not remember anything about the plaintiff’s case other than that one theme or heuristic, the plaintiff can still prevail. (The danger, as discussed above, is that a juror who decides the case based on a heuristic might not be able to defend that position and is ripe for conversion.) A second main goal of conducting jury research is to test the themes and heuristics that the trial team has generated, as well as to hear what the mock jurors have generated on their own. Heuristics, no matter what the source, need to be available, applicable, and accessible for jurors in order to be effective. Testing heuristics out before the actual trial gives attorneys the opportunity to determine whether their heuristics or themes resonate with jurors. If they do not, jurors will generate their own and attorneys must understand these effects as well.

Conclusion Our goal in writing this chapter was to demonstrate how social psychological research on persuasion can improve trial consulting. We have focused almost ­exclusively on the theoretical background and empirical support for two information-processing

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models of persuasion; however, social psychology’s ­potential contribution to trial consultants and their clients simply does not end there. Theory and research on other social psychological phenomena such as self-concept, conformity, group dynamics, attribution processes, and the attitude/behavior ­relationship have much more to offer inquiring minds from the legal community. Unfortunately space limitations require that we save a discussion of these phenomena for another day or for other authors in this volume and elsewhere. In the ­meantime, we hope that trial consultants continue to realize the value of social psychology and its unique ability to inform and maximize the advice they provide clients when preparing for court and during trial.

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Mecham, L. R. (2005). Judicial business of the United States Court: Annual report of the Director. Administrative Office of the U.S. Courts. Retrieved 9 March, 2011, from http://www.uscourts. gov/judbususc/judbus.html. Moskowitz, G. B. (2005). Social cognition: Understanding self and others. New York: Guilford. Myers, D. G. (2008). Social psychology (9th ed.). New York: McGraw-Hill. Petty, R. E., & Cacioppo, J. T. (1984). The effects of involvement on responses to argument quantity and quality: Central and peripheral routes to persuasion. Journal of Personality and Social Psychology, 46, 69–81. Petty, R. E., & Cacioppo, J. T. (1986a). The elaboration likelihood model of persuasion. In L. Berkowitz (Ed.), Advances in experimental social psychology (Vol. 19, pp. 123–203). New York: Academic Press. Petty, R. E., & Cacioppo, J. T. (1986b). Communication and persuasion: Central and peripheral routes to attitude change. New York: Springer. Petty, R. E., Cacioppo, J. T., & Goldman, R. (1981). Personal involvement as a determinant of argument based persuasion. Journal of Personality and Social Psychology, 41, 847–855. Petty, R. E., Cacioppo, J. T., Haugtvedt, C., & Heesacker, M. (1986). Consequences of the route to persuasion: Persistence and resistance of attitude changes. Unpublished manuscript, University of Missouri, Columbia, MO. Petty, R. E., Cacioppo, J. T., & Schumann, D. (1983). Central and peripheral routes to advertising effectiveness: The moderating role of involvement. Journal of Consumer Research, 10, 134–148. Petty, R. E., Harkins, S. G., & Williams, K. D. (1980). The effects of group diffusion of cognitive effort on attitudes: An information processing view. Journal of Personality and Social Psychology, 38, 81–92. Petty, R. E., Haugtvedt, C. P., & Smith, S. M. (1995). Elaboration as a determinant of attitude strength: Creating attitudes that are persistent, resistant, and predictive of behavior. In R. E. Petty & J. Krosnick (Eds.), Attitude strength: Antecedents and consequences (pp. 93–130). Mahwah, NJ: Lawrence Erlbaum Associates. Petty, R. E., & Wegener, D. T. (1999). The elaboration likelihood model: Current status and controversies. In S. Chaiken & Y. Trope (Eds.), Dual-process theories in social psychology (pp. 37–72). New York: Guilford. Petty, R. E., Wells, G. L., & Brock, T. C. (1976). Distraction can enhance or reduce yielding to propaganda: Thought disruption versus effort justification. Journal of Personality and Social Psychology, 34, 874–884. Ratneshwar, S., & Chaiken, S. (1991). Comprehension’s role in persuasion: The case of its moderating effect on the persuasive impact of source cues. Journal of Consumer Research, 18, 52–62. Sherif, M. (1936). The psychology of social norms. New York: Harper. Taylor, S. E. (1981). The interface of cognitive and social psychology. In J. H. Harvey (Ed.), Cognition, social behavior, and the environment (pp. 189–212). Hillsdale, NJ: Lawrence Earlbaum Associates. Wells, G. L., & Petty, R. E. (1980). The effects of overt head movements on persuasion: Compatibility and incompatibility of responses. Basic and Applied Social Psychology, 1, 219–230. Wood, W., & Eagly, A. H. (1981). Stages in the analysis of persuasive messages: The role of causal attributions and message comprehension. Journal of Personality and Social Psychology, 40, 246–259. Wood, W., & Kallgren, C. A. (1988). Communicator attributes and persuasion: Recipients’ access to attitude-relevant information in memory. Personality and Social Psychology Bulletin, 14, 172–182. Wood, W., Kallgren, C. A., & Preisler, R. M. (1985). Access to attitude-relevant information in memory as a determination of persuasion: The role of message attributes. Journal of Experimental Social Psychology, 21, 73–85. Yalch, R. F., & Elmore-Yalch, R. (1984). The effect of numbers on the route to persuasion. Journal of Consumer Research, 11, 522–527.

Chapter 4

Questions About the Jury: What Trial Consultants Should Know About Jury Decision Making Ryan J. Winter and Timothy Robicheaux

Introduction The jury is one of the most widely studied areas within the psycholegal discipline. Dating from the time of Hugo Munsterberg in 1908, when he provided one of the first critical reflections on the jury in his book On the Witness Stand, the sheer volume of jury research produced in the USA and around the world has provided great insight into the means by which jurors make decisions. Researchers have conducted studies on such diverse topics as jurors’ use of inadmissible evidence (Cook, Arndt, & Lieberman, 2004; Kassin & Sommers, 1997; London & Nunez, 2000), the influence of complex trial testimony (Horowitz, ForsterLee, & Brolly, 1996; Worthington, Stallard, Price, & Goss, 2002), the impact of expert witnesses on jury verdicts (Cooper, Bennett, & Sukel, 1996; Kovera, McAuliff, & Hebert, 1999; Shuller, Terry, & McKimmie, 2005), and the role that victims play in swaying jury sentiments (ForsterLee, Fox, ForsterLee, & Ho, 2004; Myers & Greene, 2004), to name but a few research areas. Devine, Clayton, Dunford, Seying, and Pryce (2001) recently reviewed 206 distinguishable psycholegal studies that focused solely on deliberating mock jurors, covering areas like jury nullification, “jurorfriendly” instructions, decision rules (whether jurors are allowed to reach a verdict without a group consensus), trial structure variations, and jury members’ personality traits, attitudes, and prior experiences. Although this chapter cannot possibly delve into all of the research devoted to the jury, we would like to highlight some of the useful knowledge gathered during the course of psycholegal research that has a direct bearing on trial consulting. Part One probes the broader areas of jury research, briefly describing some of the research methodologies often used to study the decision-making capabilities of jurors. Part two focuses exclusively on focus groups and mock jury simulations, two of the most prominent tools psycholegal scholars use to study jury decision making.

R.J. Winter (*) Department of Psychology, Florida International University, Modesto A. Maidique Campus DM 25611200, SW 8th Street, Miami, FL 33199, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_4, © Springer Science+Business Media, LLC 2011

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Here we highlight some of the ways that mock jury research is relevant to trial consulting work, such as how research can help the consultant to plea-bargain or settle a case, or how research can help attorneys with presentation strategies. Part three focuses on presenting evidence to the jury panel, highlighting the benefits and drawbacks of using paper and pencil vignettes as opposed to video vignettes or live attorney presentations. In this section, we also focus on factors such as realism and consequentiality in jury research. In Part Four, we present information to help consultants decide the kinds of participants to use in the course of their research. We focus on how to find these mock jurors, how to recruit them, and how to cope with the gaps that exist between mock-juror and actual-juror decision making. Part Five focuses on dependent variables, providing information on the kinds of questionnaires that are available to researchers and assessing the involvement of both juror and researcher characteristics. Part five also analyzes the tools available for interpreting the data. Finally, Part six focuses on the ethical issues surrounding jury research.

Part One: Introduction to Jury Research How Can Trial Consultants Apply Psychological Research to the Jury? Although trial consulting originated in cases involving indigent criminal defendants embroiled in the antiwar protests and political movements of the 1970s (Strier, 1999), the majority of cases employing consultants today involve corporations and wealthy clientele engaged in civil litigation (Levine, 1992). Thus, in order to answer the question of how consultants can apply psychological research to the jury, we begin with the two broad categories of law, noting that jury research may differ slightly depending on whether the trial is criminal or civil in nature. Although the methods used to study the jury do not differ dramatically within studies of civil and criminal trials, there are unique considerations in each legal domain. Criminal cases involve the state bringing suit against an individual, whereas a private agent (either an individual or a corporation) sues another private agent in civil cases. As such, the trial format differs for each suit, with the prosecution (in criminal trials) and plaintiff (in civil trials) having first crack at the jury with regard to giving opening statements, introducing evidence, and giving closing statements. This provides a distinct advantage for these parties in that the prosecution or plaintiff can set the tone of the trial. Defense attorneys, alternatively, have some leeway in presenting their case, and even have the opportunity to present their opening statement after the prosecution rests its case (Pyszczynski & Wrightsman, 1981). Several jury studies focus on the organizational structure of such opening and closing statements, with several researchers advocating a storytelling technique for opening statements in both civil and criminal cases (Spiecker & Worthington, 2003;

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Voss & Van Dyke, 2001). That is, attorneys create a storyline that provides jurors with a series of interrelated episodes that form a narrative framework of how a crime unfolded (Pennington & Hastie, 1981, 1986, 1988, 1992). Such stories can include the events that led up to the crime (e.g., he went to the bar at 10:00 pm, ordered a drink at 10:20, went to the restroom at 10:30) as well as the goals and actions of the characters involved (e.g., the defendant was angry and clearly wanted to pick a fight). In general, the more convincing the attorney’s story, the more likely jurors will rely on that narrative when they deliberate on a verdict. Although we will delve more fully into the Story Model in Part Two below, we would like to mention that for closing statements in civil cases, Spiecker and Worthington (2003) encourage a legal-expository format in which attorneys present the relevant legal instructions involved in a dispute and then summarize how the evidence supports or refutes the applicable law. Legal-expository closing statements – if combined with narrative opening statements – are particularly effective, although research on legal-expository models focuses primarily on civil law (McCullough, 2007; Spiecker & Worthington, 2003). Yet legal-expository arguments may be similarly useful for informing jurors about rules and procedures in criminal law. Attorneys may attempt to convince jurors that the trial parties either met or did not meet their legal burdens of proof during the trial, which could dramatically affect the final verdict. Of course, burdens of proof differ somewhat in civil vs. criminal law. In criminal cases, jurors assess the probability that defendants committed a crime using the strictest burden of proof available: beyond a reasonable doubt (In re Winship, 1970). Civil jurors, on the other hand, use a more lenient burden of proof: preponderance of the evidence (Greene & Bornstein, 2003). Both burdens are difficult to quantify, and courts do not adequately define either burden (Horowitz, 1997). However, quantified definitions of each burden may help jurors understand the differences between beyond a reasonable doubt and preponderance of the evidence. For example, when Kagehiro and Stanton (1985) provided mock jurors with quantified definitions of preponderance of the evidence (e.g., this burden equals 51%) and beyond a reasonable doubt (e.g., this burden equals 91%), the quantified definitions had their intended impact (participants found it more difficult to find the defendant culpable as the burden of proof increased). Without such quantified definitions, the authors found no differences in verdicts for jurors given reasonable doubt vs. preponderance of the evidence. Given the imprecise natures of the reasonable doubt and preponderance of the evidence burdens, attorneys have some flexibility in convincing jurors to support his or her client. An effective closing statement using the legal expository model approach, for example, may sway jurors to see that key pieces of prosecution or plaintiff evidence either met or did not meet the court approved yet ambiguously defined burden of proof. Punishment also differs in criminal vs. civil law. Criminal law imposes fines, imprisonment, or even death as criminal punishments. Although judges are responsible for deciding most criminal punishments, jurors determine whether aggravating factors are present that make the defendant eligible for the death penalty (Ring v. Arizona, 2002). Given the jury’s powerful position in determining the punishment in capital trials, jury researchers have focused a great deal of attention on jury

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selection procedures and capital jurors’ comprehension of death penalty instructions. Jury selection procedures in capital crimes begin with death qualification, a process in which judges dismiss potential jurors who hold extreme beliefs about the death penalty (that is, beliefs that would disrupt their ability to be fair and impartial, Witherspoon v. Illinois, 1968). These “impartial” jurors are thus “death-qualified” and can serve on death penalty jury panels. Jurors who do not hold impartial attitudes (e.g., they either oppose the death penalty in all cases or, though rare, support the death penalty no matter what facts are present in a given case are) lack death qualified status, and thus they do not survive voir dire. Psychological research shows that death-qualified jurors are more punitive in nature, even to the extent that they find more evidence of guilt than juries composed of both death qualified and excludable jurors (Cowan, Thomson, & Ellsworth, 1984). Yet the Supreme Court ruled the death qualification procedure constitutional (Lockhart v. McCree, 1986). Given the Supreme Court’s position on the constitutionality of death qualification procedures, consultants involved in death penalty cases may wish to exert their efforts on attorney presentation strategies, particularly in instances where the attorney can educate the jury about death penalty procedures. Several studies demonstrate that capital jurors who score low on their comprehension of jury instructions are more likely to recommend death (Lynch & Haney, 2000; Wiener et al., 2004). Consultants could help attorneys develop a legal expository strategy for closing arguments. Such closing arguments may aid the jury in seeing how trial evidence presented fits into the legal rules and procedures required in death penalty cases, which may enhance the jury’s overall understanding of the death penalty process. Of course, most criminal punishments involve judge-imposed sentences for crimes as far ranging as vandalism and petty robber to sex offenses and murder. Although most state and federal jurisdictions follow sentencing guidelines when imposing criminal punishments, a large number of consulting firms now employ sentencing specialists who consult with clients on pre- and postsentencing strategies. Such consultants may provide assessments that lead to upward or downward departures in the sentencing guidelines. For example, the Federal Sentencing Guidelines (§ 4A1.3) allow upward sentencing departures that increase the amount of punishment if “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted.” Alternatively, downward sentencing departures apply if “reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, [and thus] a downward departure may be warranted.” Working within these guidelines, consultants may perform comprehensive forensic assessments that focus on potential mitigating circumstances that lessen the amount of punishment. Sentencing consultants may provide the court with treatment recommendations, risk assessments, or simply help the judge evaluate what impact the defendant’s psychological disorder had on his or her culpability. Consultants can advocate alternative sentencing options, such as (1) mediation and restitution, (2) work release and weekend

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sentencing, (3) boot camps, (4) community service, (5) fines, (6) day reporting sentences (in which the convicted offender reports to a treatment center), (7) probation, (8) house arrest/electronic monitoring, or (9) halfway houses (Bureau of Justice Statistics, 2000). Civil defendants, unlike their criminal peers, face a variety of damage awards, with some designed to compensate the plaintiff for his or her injuries (compensatory damages) and others designed to punish the defendant for his or her actions or to the deter the defendant and others from engaging in similar reckless behaviors in the future (punitive damages). Jury research in the civil arena has manipulated the severity of the victim’s injuries (Bornstein, 1998; Greene, Johns, & Bowman, 1999), altered the “deep-pockets” of the defendant (Vidmar, Lee, Cohen, & Stewart, 1994), and varied the willful, wanton, and reckless behavior of the defendant (Greene, Johns, & Smith, 2001). Although far beyond the scope of this chapter, researchers have focused on reforms and procedures that can alter civil jury damage awards, such as bifurcating the trial (splitting liability decisions from damage award decisions, or splitting information regarding compensatory damage award decisions from information regarding punitive damage decisions). Civil research also focuses on the influence of the attorneys’ ad damnum (e.g., the attorney’s recommended damage award) on jury damage award determinations, as well as determining the effectiveness of capping damage awards (see Greene & Bornstein, 2003, for a full look at civil jury decisions). In general, psychological research on these procedures shows that such alterations to the civil trial procedure do affect jury decisions. Unitary trials that present liability and damage award evidence simultaneously, for example, appear to increase damage awards compared to bifurcated trials that separate this evidence (Greene & Smith, 2002; Wissler, Rector, & Saks, 2001). However, bifurcating compensatory damage award evidence from punitive damage award evidence paints a more complex picture. Although bifurcating compensatory damage award evidence from punitive damage award evidence has little impact on the compensatory award, such bifurcation increases punitive damage awards relative to keeping damage awards in a unitary trial format (Greene, Woody, & Winter, 2000; Landsman, Diamond, Dimitropoulos, & Saks, 1998). At this time, consultants should await additional empirical evaluation of bifurcation before recommending such a trial strategy to their clients. However, empirical investigations of ad damnum requests (e.g., the amount of damages that attorneys request from the jury) show more conclusively that damage award requests can affect jury verdicts. Dating back to Suehl (1982), juror’s damage award assessments often fall in line with the damage award amount requested by the attorney. As Greene and Bornstein (2003) note, “the more you ask for, the more you get” (p. 152). For example, Diamond, Ellis, Saks, and Landsman (2000), found that as the requested ad damnum increased, the damage awards increased as well. Trial consultants may thus help attorneys develop an appropriate ad damnum amount and show them how to present this recommendation to the jury. In addition to ad damnum recommendations, research shows that damage award caps affects jury decisions, with caps providing jurors with an anchoring point on which to base their damage award

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decision (Robbennolt & Studebaker, 1999). Such anchoring points may allow jurors to determine the range of possible damage awards and to adjust their damage award assessment in the current case based on the worst-case scenario (e.g., are the facts in this case bad enough to warrant the highest amount allowed by the cap or a lesser amount?). Knowing how jurors use damage award caps and the ad damnum should give the trial consultant a better idea about how jurors compute damage awards.

What Methods are Available to Study Jurors and Juries? With access to actual deliberating jurors all-but denied by the American courts, psycholegal scholars have turned to a variety of unique research methodologies to study the manner in which jurors and juries make decisions. The methods most commonly used by psycholegal scholars include public opinion surveys, posttrial interviews, shadow juries, focus groups, and mock-jury simulation experiments. Each methodology has its own strengths and limitations, but, as research continues to mount, these various methods provide convergent results that elucidate the manner in which jurors and juries make their decisions. For example, trial consultants often employ public opinion surveys to determine the amount of knowledge the community has about a specific case. If prospective jurors have already formed an opinion regarding the guilt or liability of the defendant, public opinion survey results reflecting such preformed opinions may support the attorney’s change of venue appeal or allow the attorney to seek additional peremptory challenges during voir dire (Gobert & Jordan, 1990). However, results from public opinion surveys are not always persuasive for courts. For example, Judge Matsch, the judge who presided over the Timothy McVeigh and Terry Nichols Oklahoma City bombing case (United States v. McVeigh, 1996; United States v. Nichols, 1996), concluded that public opinion surveys were “crude measures of opinion at the time of the interview” (p. 1473). Yet qualified social scientists have successfully appealed for changes of venue using public opinion survey data, though the manner in which the consultant presents this information to the court may affect whether the judge agrees to use it (Posey & Dahl, 2002). Posey and Dahl note that the courts are more amenable to empirical arguments for (or even against) changes of venue if the consultant takes on the role of consultant rather than advocate. In other words, using an empirical methodology to conduct and collect public opinion data will be more persuasive in court than using a “hired gun” approach couched in advocacy (Wiener & Hurt, 1999). Posey and Dahl also note that using multiple experts and multiple methods may provide the judge with additional justification to move the trial. Thus, content analyses of local and/or national newspapers in conjunction with public opinion surveys may be more effective in persuading the judge to grant a change of venue motion than using either method alone.

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Posttrial interviews give researchers direct access to those individuals who have already served on a jury panel, which may provide both attorneys and the consultant with an insight into jurors’ thoughts and feelings about the trial. Mott, Hans, and Simpson (2000), for example, interviewed 259 jurors from 36 civil cases and found that jurors employed several strategies when deciding damage awards, including picking a “fair” number or using the anchoring and adjustment heuristic (e.g., basing their decision on a reference point). For example, anchoring and adjustment heuristics allow jurors to use an attorney provided ad damnum or damage award cap to determine an appropriate starting point for determining appropriate damage award amounts. That jurors intuitively employ anchoring and adjustment heuristics in their decision-making strategies reinforces much of the experimental literature, which shows that attorneys who request specific damage award amounts may increase or decrease damage award assessments dependent on the “anchoring number” the attorney suggests (Chapman & Bornstein, 1996). Of course, posttrial interviews can provide attorneys and trial consultants with important information regarding the outcome of a specific trial. Such data may be useful in two ways: (1) improving the attorney’s chances of success in future cases that have a similar set of facts or (2) helping the attorney plan an appeal of the case. The first is a particularly handy reason for conducting posttrial interviews. Posttrial interviews are beneficial for attorneys anticipating future litigation, such as serial litigation (e.g., a series of cases in which the same client may be facing litigation from multiple plaintiffs who plan to use the same or similar pieces of evidence), multidistrict litigation (e.g., litigation in which one Federal judge is assigned to all civil cases of a similar type), or to simply help improve their overall performance. Post trial interviews may thus provide attorneys with insight into the reasons why the jury reached a particular verdict, thereby helping the attorney discover weaknesses and strengths in their case that may help them restructure their arguments in future cases. Information gleaned from posttrial interviews can also help attorneys develop future trial strategies. For example, posttrial information can help improve the attorney’s witness preparation techniques or help them plan both how and when to introduce evidence in future trials. In addition, interviews can help attorneys with presentation styles, such as knowing whether to act passively or aggressively, and when to use flattery. Hahn and Clayton (1996), for example, found that attorneys who acted aggressively were more successful at getting acquittals for their client, while Cannon (2008) noted that flattery used in moderation could make the attorney more appealing, though too much flattery or using it on too many jurors decreases its effectiveness. Jurors may bring up such attorney personality and presentation evaluations during posttrial interviews, which may aid the attorney in developing behavior and presentation strategies that are more effective in the future. Finally, posttrial interviews help attorneys develop more effective trial themes to use in future cases (Conlin, Cusimano, & Averbach, 2003). That is, researchers suggest that attorneys develop a simple, consistent, and parsimonious trial theme to focus jurors on the most persuasive narrative argument available to the attorney (e.g., the famous “If it doesn’t fit, you must acquit” theme used in the OJ Simpson

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homicide trial). During posttrial interviews, attorneys and consultants can probe into such themes to see how effective they were (or how effective other themes may have been). Although not always the main goal of posttrial interviews, a second benefit lies in detecting juror misconduct, which might set the stage for an appeal (Spaeth, 1994). In Arizona criminal trials, for example, juror misconduct can involve jurors receiving evidence not properly introduced into court, perjuring themselves by willfully failing to respond fully to a direct question posed during the voir dire examination, receiving a bribe to vote another way, conversing before the verdict with an interested party about the outcome of the case, or becoming intoxicated during the course of deliberations (Arizona Rules of Criminal Procedure, 1993). If present, such misconduct may aid the attorney in appealing for a new trial. Although posttrial interviews provide informative feedback from and about the jury, not all jurisdictions allow such contact with jurors, and most jurisdictions prohibit questions that harass or embarrass jurors (Model Code of Professional Responsibility, 1980). Consultants should thus be aware of local laws before attempting to interview jurors after the trial. Despite the advantage of having direct access to actual jurors, posttrial interviews have several limitations. First, posttrial interviews are likely incomplete, as jurors cannot possibly remember every detail from their deliberations, and not all jurors are willing to give interviews. Second, posttrial interviews are reflective in nature, and thus errors of omission and commission are likely. In addition, jurors have already rendered a verdict, so they know how the trial turned out, and their recall may see that conclusion as inevitable. A juror may recall trial evidence in a distorted manner that supports a conclusion they have already drawn, one that in hindsight seems inevitable. Further, jurors may be unaware of all of the factors that influence their behavior, and thus they may not be able to report the impact of these factors (Nisbett & Wilson, 1977). To address the limitations of posttrial interview limitations, consultants may wish to employ shadow juries. In a typical shadow jury, jury-eligible participants observe an ongoing trial in its entirety, frequently reporting their observations and concerns to the attorney and consultant throughout the course of the trial. Although expensive and time-consuming, shadow juries increase the overall validity for studying the jury because such jurors hear the same information as real jurors (Posey & Wrightsman, 2005). However, shadow juries provide little experimental control, are often prohibitively expensive, and elicit the concern that such jurors know they are not deciding an actual verdict (Zeisel & Diamond, 1978). In order to achieve more experimental control, researchers often turn to simulation techniques to assess the manners in which juries and jurors make decisions. The most common simulation study technique involves focus groups, a process in which participants hear portions of the attorney’s case. After the presentation, focus group members relate their impressions of the case, giving the attorneys insight into the effectiveness of certain pieces of evidences. In addition, focus group members may point out any misunderstandings they had during the course of the presentation, ask for clarification on issues they think should be explained, and give

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voice to their concerns about the case and the presentation. Focus groups can be invaluable in determining whether attorneys should continue with litigation or seek an alternative resolution, such as plea-bargaining, arbitration, mediation, or settlement. After all, if a focus group supports the opposing party, this information may give the plaintiff or defendant the necessary justification to seek an alternative resolution to the dispute rather than face a potentially unfavorable verdict at trial. At the very least, the focus group can provide the trial team with valuable insight into how the focus group perceived the litigation, and this information may be useful at trial should settlement talks break down. A more expanded focus group procedure is the mock-jury simulation, a method in which attorneys provide jurors with a set of trial-related stimulus materials (presented in live, written, audio, or videotaped format) and then have mock jurors complete a series of surveys or questionnaires. Mock jury sessions provide attorneys the opportunity for “a full-dress rehearsal, including voir dire of the panel, opening arguments, witness testimony for each side, closing arguments, judge’s instructions, and jury deliberations” (Strier, 1999, p. 97). During the mock-jury presentation, the researcher may introduce an independent variable of interest (e.g., varying the presence, absence, or type of evidence to determine what impact the evidence has on the jury’s evaluation). Researchers or consultants select variables based upon the legal theory of the case and the anticipated strengths and weaknesses in the litigation. Jurors then either render an individual verdict or deliberate as a group to reach a final verdict. Finally, researchers use appropriate statistical techniques to analyze responses across the various conditions to determine which presentation strategy is most effective (Schuller & Yarmey, 2001). By allowing only the independent variable to vary, experimental simulations give researchers better control over the study that allows them to make causal conclusions about why jurors reached a specific conclusion in a specific case. However, this increase in internal validity comes at the price of realism (Schuller & Yarmey, 2001). Real life trials involve long and complex testimony and evidence, which are difficult to reproduce in mock jury presentations. In addition, mock jurors know they are participating in a simulation study, and thus they may not feel the same pressures as jurors who are making decisions that will ultimately affect the lives of their peers. Taking away someone’s life in a capital murder trial or finding a defendant liable and awarding large damages, for instance, generates emotions that are hard to replicate outside a courtroom environment. Nevertheless, mock trials provide consultants with a great deal of information regarding jury decision-making.

When (and Why) Should I Use These Methods? The choice to employ a focus group over a mock jury presentation, or to use posttrial interviews rather than public opinion surveys, depends on the questions of interest to the attorney and the amount of money available to prepare the case.

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Some consulting websites price mock jury sessions as low as $1,500 (What is JuryVoice, 2011), though jury packages will vary depending on the number of mock juries needed for the session, the number of participants in each jury, the length and complexity of the presentation, and the demonstrative aids employed during the mock trial (Trial Behavior Consulting, 2006). When trial consulting first flooded the marketplace, most litigation involved consultants hired late in the trial preparation process, though current practices employ consulting in almost every stage of litigation (Yarbrough, 2001). Knowing how juries behave may inform the attorney’s decisions about a wide variety of trial strategies, such as whether to settle or plea-bargain a case, how to choose a favorable venire, how to present testimony to jurors, and what to expect at the outcome of the trial. If provided enough time before trial begins, subsequent research may test alternative strategies that might be more successful in a particular case. Although no reputable jury consultant can guarantee a favorable outcome, the psychological literature on jury decision-making can provide attorneys and consultants with a better idea about how jurors make decisions, what strategies are most likely to be successful, and what strategies should not be used in specific cases. In the next section, we explore some of the major findings in the psychological literature with an eye toward determining when mock jury and focus group studies can be helpful to trial consultants and their clients.

Part Two: When (and Why) Should I Use a Mock Trial? How Can Jury Research Help Me Decide to Settle A Case or Plea Bargain? Both plaintiffs and defendants can better understand the strength of the evidence in their case if they first present the facts to a small group of impartial observers. The outcome of mock-jury deliberations may then influence the litigator’s decisions about whether to continue the legal action or to consider settlement or pleabargaining sessions. After all, if a consultant can present an assessment of the damage awards a real jury is likely to award based on what a mock jury did award, the client may see settlement as a reasonable outcome, or they may choose to abandon litigation altogether rather than attempt an expensive and risky trial (Yarbrough, 2001). Consultants should make these recommendations in light of the strength of the evidence for or against their client’s case. Such evidence may include information about the amount and type of pretrial publicity surrounding litigation, the complexity and quantity of expert testimony, the presence or absence of eyewitness evidence, the strength and impact of juror attitudes, experiences, and the impact of the jury pool’s demographic make-up. Researchers can explore each of these issues with mock jury studies tailored to specific case material.

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The strength of the trial evidence is one of the highest predictors of jury outcomes (Devine et  al., 2001), with the majority of studies finding a positive correlation between evidence strength and liability or guilt determinations. As Devine et al. note in their review of deliberating jury studies, conviction rates in criminal trials often differ depending on the strength of evidence (i.e., weak vs. strong), with conviction rates varying between 24 and 70% depending upon the strength of the prosecutions’ evidence. Defendants facing a conviction likelihood of 70% may find the prospect of plea-bargaining more appealing than if the conviction likelihood is around 24%. Of course, what constitutes “strong evidence” varies from one study to the next, with some researchers defining strength in terms of the quantity of evidence introduced while others define strength by the quality of the evidence (Devine et al.). Both archival and empirical research studies support this strength of evidence notion. Using archival data collected from 418 criminal cases in El Paso County, Texas, Taylor and Hosch (2004) operationalized the strength of prosecutorial evidence by giving higher strength of evidence ratings to cases that involved the following factors: presence of physical evidence, confessions, positive eyewitness identifications, weapons (with more lethal weapons, such as firearms, ranking higher than cutting weapons or no weapons), severe degree of injury to the victim, a large number of indictment charges, and a large number of witnesses. Taylor and Hosch also examined strength of evidence limited to the sentencing phase, with stronger evidence indicated by the defendant’s prior misdemeanor and/or felony convictions. Results showed that defendants facing strong prosecution evidence were more likely to face conviction, and such defendants received sentences almost twice as long as defendants facing weak prosecution evidence. Similar strength of evidence findings emerge in experimental jury studies, punitive responses from the jury positively correlate with strong eyewitness evidence and strong physical evidence (Baldus, Pulaski, & Woodworth, 1983; Bovbjerg, Sloan, & Blumstein, 1989; Greene, 1988; Leippe, 1985; Skolnick & Shaw, 2001). Mock juries can thus provide the consultant with an objective means for determining how strong their case is, and whether litigation is even warranted or necessary.

How Can Mock Jury Research Impact Attorney Presentation Strategies? A great deal of psychological inquiry focuses on the question of how jurors and juries arrive at a final verdict (Ellsworth & Mauro, 1998). Psychological researchers have proposed a number of jury decision making models, some focusing on mathematical approaches (in which jurors perform mental calculations on various pieces of trial evidence, evaluating the relevance and implications of the evidence and translating this evaluation into a guilt assessment) and some focusing on explanationbased approaches (based on jurors’ cognitive organizations and representations of

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the evidence, Greene et al., 2002). The explanation-based approaches are probably the most relevant to trial consultants, particularly Pennington and Hastie’s Story Model (1981, 1986, 1988, 1992,1993). The Story Model organizes the various pieces of trial evidence into a coherent narrative format, a “story” that meshes jurors’ factual knowledge of the case with their inferential understanding of the trial information (Pennington & Hastie, 1986). The Story Model includes three stages: (1) story construction, (2) verdict-category establishment, and (3) story classification (Pennington & Hastie, 1993). During the story construction stage, jurors use three kinds of information to create a plausible story: the evidence presented throughout the trial (such as testimony from the witnesses), the real-world knowledge that jurors have about similar cases or crimes in their community, and their own generic expectations and experiences. In constructing story frameworks, jurors can interpret evidence in several different ways, which can result in several different stories. Pennington and Hastie (1993) posit that when jurors create multiple stories to explain trial evidence, the story that best fits the evidence and is the most coherent is the story that jurors will ultimately adopt. In the verdict-category establishment stage, jurors learn about the verdict options (i.e., in homicide trials, this may include first-degree murder, seconddegree murder, or manslaughter). In the story classification stage, jurors attempt to match the story they constructed in the first stage with one of the available verdict categories from the second stage. If their adopted story fits the requirements of a specific verdict category, the juror chooses that verdict. If the story does not fit a verdict option, the juror will search for a more appropriate verdict category. Empirical research on the Story Model shows that jurors intuitively put trial evidence into a story format. In an early empirical investigation, Pennington and Hastie (1986) had jurors talk aloud while they rendered verdicts in a murder trial. Jurors often framed their thoughts in terms of a story structure, creating frameworks that incorporated chains of events, episodic details, and inferences about the motivations, psychological states, goals, and actions of characters in the story. Of particular relevance to trial consultants, studies have shown that attorneys’ presentation strategies facilitated story construction. Pennington and Hastie (1988), for example, presented some mock jurors with evidence in the form of a story-order (e.g., the attorney’s case followed a temporal sequence, starting with events that occurred before the victim’s death in a barroom brawl followed by the events that took place during the fight and concluding with events surrounding the defendant’s subsequent arrest). They presented other jurors with a witness-order (e.g., a police officer testified about all of the fight details while the medical examiner testified about the cause of death, etc.). Jurors in the witness order conditions had more trouble constructing stories than jurors in the story order conditions. More importantly, jurors given story-order prosecution evidence and witness-order defense evidence were more likely to convict the defendant. Jurors given witness-order prosecution evidence and story-order defense evidence were least likely to convict. These results strongly suggest that attorneys who are able to present their side of the case in a story format hold a significant advantage at trial, especially if that story provides a better explanation that the story developed by the opposition.

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For the trial consultant, the Story Model may be particularly effective during opening statements, where attorneys can encourage jurors to consider the trial evidence in a manner consistent with their client’s story. Readers should take this recommendation with a grain of salt, of course, as jury trials necessarily introduce conflicting and incomplete evidence, which may give rise to many alternative story formats. Jurors may find or develop a new story as the trial progresses that better fits the facts than the narrative proffered by the attorney. Furthermore, jurors actively process evidence, evaluating the trial in light of their own unique schemas, prior life experiences, and expectations, which may vary widely from juror to juror, and may conflict with the attorney’s narrative format. Nonetheless, when the story includes causal connections that support a specific narrative framework, jurors often evaluate that framework more favorably (Pennington & Hastie, 1992). Thus, filling in the story gaps – rather than allowing jurors to infer what occurred during those gaps – may increase jurors’ support for one story over another.

Part Three: What Tools Should I Use to Structure My Mock Jury Session? What are the Benefits and Drawbacks to Paper and Pencil Vignettes, Video Vignettes, and Live Presentations? Realism and Consequentiality As much of the research we have presented so far involves the use of mock jurors and mock-juries engaged in experimental studies, it is important to highlight some of the benefits and drawbacks to the methods used to collect jury data. A common criticism of jury research is that it occurs under controlled conditions that fail to account for much of the realism that real jurors encounter during the course of a trial (see Bornstein, 1999; Diamond, 1997). Actual jurors, unlike mock jurors, have access to all relevant trial evidence and testimony, have the weighty knowledge that their decisions will affect the lives of real people rather than hypothetical litigants, and engage in a deliberation session at the conclusion of the trial. In academic jury research, mock jury sessions that include deliberations are rare. After all, such sessions require large numbers of participants to analyze research data, and they are time consuming. When jurors engage in deliberations in academic research, the deliberation sessions are usually short or have preset length limitations (typical research deliberation sessions last approximately 30  min, Devine et  al., 2001). Fortunately, trial consultants are in a better position to employ deliberations when conducting mock trials, as their needs often focus on a specific-fact pattern rather than multiple variations of a fact pattern. In academic jury research, the most typical mediums for trial presentation include written trial materials, audiotape presentations, videotape presentations, and occasionally live presentations. Written transcripts or trial summaries are the

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most common mediums, encompassing half of all published jury simulation studies (Bornstein, 1999) Academic researchers frequently parse written jury materials from trial transcripts or create them by relying on case opinions, thus jurors rarely hear all of the evidence normally available in a real trial. However, written materials are easier to use than other mediums and provide a great deal of experimental control. Approximately a third of simulation studies utilize video presentations of trial stimuli (Bornstein, 1999). Videotapes provide much of the same experimental control as paper and pencil vignettes. Simulation studies in the academic world rarely use live trial presentations (Bornstein, 1999). However, trial consultants can easily make use of live presentations or video, as often the consultant is testing a specific theme. Of course, live presentations provide some additional benefits for consultants as well. Not only do they provide a more contextually valid forum for addressing topics sure to arise at trial, they provide attorneys and trial witnesses the opportunity to engage in a dress rehearsal for the trial. Such rehearsals can help trial consultants pinpoint areas of weakness or strength in presentation strategies, and an opportunity to refine testimony regarding trial evidence that may be confusing or nonpersuasive for jurors. Some of the live presentations the first author has observed, for example, draw jurors into the experience by providing them with flesh-and-blood attorneys and witnesses who directly influence jury determinations. In one case involving purported torture, the testimony of the live victim was far more compelling than it would have been had jurors simply read the victim’s written statement. Of course, researchers need to conduct addition studies on presentation medium to resolve critics’ claims that written trial materials do not approach the “realism” of videotaped or live presentations. Unfortunately, few studies directly compare the differences between videos, live presentations, and written vignettes. While some researchers find differences based on medium (e.g., Mitchell, Haw, Pfeifer, & Meissner, 2005), others demonstrate no relationship between the medium and outcomes (see Bornstein, 1999 for a review). One way that researchers in laboratory studies attempt to increase realism is by convincing participants that their decisions have real outcomes (Wilson & Donnerstein, 1977). The can inform the mock jury panel that the outcome of jury session may influence the attorney’s decision to use (or not use) a certain piece of evidence or to call (or not call) a witness. Experimenters can enhance consequentiality even further by using live actors, thus putting jurors in a realistic frame of mind. Even if jurors continue to believe that their decisions are inconsequential, research has shown inconsistent effects regarding consequentiality (Bornstein & McCabe, 2005). For example, jurors may be less likely to find a defendant guilty when their decisions have real consequences (Diamond & Zeisel, 1986). Other studies fail to demonstrate any effects of consequentiality (Kaplan & Krupa, 1986). A consultant should simply be honest with the mock jurors: let them know they are in a mock jury simulation that could directly affect a trial, and that they should act as if they were actual jurors in that trial. Consultants may encounter budget and time limitations that limit their choice of stimulus medium. If resources are limited and few mock-jurors or focus group

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members are present, live presentations may be most effective. Not only do live actors enhance the consequentiality and realism of a mock jury session, the “dress rehearsal” nature of mock-trials gives the attorney the opportunity to test their own trial preparedness. In a single live presentation session, jurors can provide feedback for the attorney that may enhance his or her in-court performance. Yet consultants may want to conduct multiple mock jury presentations, as their confidence in the predictive value of mock trial data will increase with convergent replications across jurors. Even with multiple replications, a note of caution is in order. There will also be nuances to the live presentation that differ from one presentation to the next, thus limiting experimental control.

What are the Practical Concerns of Mock Jury Deliberations? Although jurors enter the courtroom or the laboratory with a priori attitudes and beliefs that may affect their judgments (despite the case facts), deliberations can (and should) sway jurors. Generally, the outcome of mock juror deliberation correlates with the predeliberation majority decision (Tanford & Penrod, 1986), but jurors’ opinions can shift via deliberation (Diamond & Casper, 1992; Hastie, Schkade, & Payne, 1998; Zeisel & Diamond, 1978). Research that lacks deliberation sessions may thus miss an important trial component that affects “real” jurors. Another advantage of utilizing deliberations is that they yield valuable information other than a final verdict. While observing mock jury deliberations, consultants may recognize patterns of conversation (e.g., discussion of a particular source of confusion, concerns about the credibility of a star witness, etc.) that the attorney may want to address before trying the real case. Deliberations may also shape the number and type of postdeliberation questions that attorney want to ask mock jurors. Thus, consultants should allow jurors to deliberate following the presentation of a mock trial whenever doing so is logistically possible.

How Long Should I Let Mock Jurors Deliberate? In real trials, deliberations span from less than an hour to several days. Financial limitations and potential juror fatigue will inevitably lead consultants to impose a time limit for mock jury deliberations, though consultants can still gather crucial information even within limited deliberation time spans. One of the most important decisions a jusy can make, of course, is the verdict. Thus if the jury has not reached a unanimous verdict after the time limit, the consultant should request that the jurors come to a decision, though it is possible that deliberation session will end without a verdict. Consultants should also be aware, however, that mock jurors might reach a final decision before the suggested time limit ends. If the deliberations end too quickly, the consultant should be ready to prompt for further input during a postdeliberation question session.

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Deliberation length is a judgment call that depends upon affordability, case complexity, and the goals of the consultant. Using a mock trial procedure with videotaped trial stimuli, Schkade, Sunstein, and Kahneman (2000) allowed mock juries to deliberate for 45-min to determine liability and damage awards in a civil case involving punitive damages. 91% of the juries reached a unanimous liability verdict during the allotted time, while 82% reached a verdict on the dollar amount of damages. In a similar study, Hastie et al. (1998), allowed mock juries to deliberate freely without a time constraint. Juries reached unanimous verdicts within 5–99 min (median = 42 min). A consultant should always allow enough deliberation time to obtain pertinent information from the jurors, though how much time to allow will vary by case and by the length of postdeliberation questionnaires.

Observing Deliberations A second practical concern when utilizing mock jury deliberations concerns the observation of juror discussions. Consultants may observe jury deliberations live (e.g., sitting in the room as a spectator) or videotape the deliberations. Many consultants use both techniques. Filming the deliberation may be particularly beneficial, as it will give the consultant the opportunity to perform a content analysis of discussion topics (Hastie et  al., 1998). Because some jurors may be uncomfortable with filming, the consultant should inform potential mock jurors of the procedures associated with research before beginning the study. To ease concerns that jurors may “perform” for the camera or be otherwise distracted by its presence, it should be mounted inconspicuously (e.g., on the wall, through a one-way mirror). Regardless of the observation technique employed, deliberations provide useful information to the consultant and the trial team.

Part Four: When and What Kind of Participants Should I Use? Where Can I Find Mock Jurors? Representativeness Consultants should attempt to find mock jury members that have demographic characteristics similar to venire persons likely to serve on the actual jury. An experienced trial team can estimate the typical demographic characteristics of juries in the local venue, but utilizing census reports may provide a more accurate estimate. Such census reports are readily available on the internet for most jurisdictions in the USA. The consultant must also take care to assure that those who volunteer to serve on a mock jury have diverse socioeconomic/work backgrounds. This may involve working around obstacles that prevent some persons from serving on the mock jury panel. For instance, conducting a mock trial during a workday may exclude

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individuals with full time jobs from volunteering for the mock jury, though full-time workers often serve on actual juries. Thus, the consultant may suggest a weekend or evening session. Other suggestions include offering fair compensation for participants (e.g., minimum wage may not be enough to draw a representative sample!), advertising in multiple locations (e.g., newspapers, using fliers, churches, civic organizations, online classifieds, etc.), and asking volunteers to spread the word. These precautions will increase the likelihood of obtaining a diverse group of volunteers, which will increase the likelihood of a diverse (and representative) mock jury panel. Prescreening individuals interested in serving as mock jurors is another way that consultants can increase the likelihood of a representative sample. Jury decisionmaking researchers who recruit community members often prescreen potential mock jurors through phone interviews or online demographics questionnaires. Given a large pool of interested volunteers, the researcher can use a stratified sampling procedure to recruit a diverse panel that better matches the “strata” found in the community. Prescreening can also serve the same purpose as voir dire: weeding out some of the same individuals that cannot serve on the real jury panel, such as those who know the parties in a case, those who have a vested interest in the case, or media members who may leak confidential information about the case before a trial.

What Variables are Most Predictive in Influencing Jury Decisions? Demographics Diversity among mock juror members can also provide the consultant with useful predictive information regarding possible verdicts. The consultant who obtains detailed demographic information from mock jurors may notice relationships between certain characteristics and decisions (or attitudes). For instance, the consultant may note that members of a specific gender are more likely to vote to convict a defendant or spend more time during deliberation talking about how a company’s policy could hurt children. Recognizing such patterns may provide valuable insight into the juror’s decision-making. However, the consultant should use caution and not rely solely on demographic variables as predictors of jury decisions. More often than not, demographic variables have low predictive value in jury research. For example, utilizing a hypothetical murder case, Hepburn (1980) reported that nine demographic variables explained less than 10% of the variance in verdict decisions. Often the type of case mediates the relationship between demographic characteristics and decisions. Consider case type and gender. Although there are few gender differences in verdicts for general murder trials (Bray & Noble, 1978), women do tend to be more lenient to female murder defendants who claim they were battered by their husbands (Russell & Melillo, 2006). In rape cases, female participants are more

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likely to find a male defendant guilty than male participants (e.g., Ugwuegbu, 1979). Females are also more likely to find that the defendant sexually harassed the complainant in a sexual harassment case (Wiener & Hurt, 2000). Our recommendation is that consultants avoid overreaching when considering demographics as predictors of legal decisions, even if they feel a particular demographic characteristic is associated with a legal decision. In the majority of mock jury trials, the small sample size is rather small, and similar findings may not emerge with other jurors. For instance, if five female mock jurors side with a defendant, the consultant should not assume that gender is a reliable predictor of decision-making. A great deal of social psychological research shows that people are easily influenced by their peers, and a different set of women may look at the same trial information differently depending on the perspectives, biases, and memories of their peers. Groupthink research, for example, shows that group member’s need for agreement takes priority over their motivation to obtain accurate information or consider alternatives (Janis, 1982). As a result, women may agree on Option A in one jury because that is the option they recall best and the first one brought up in deliberations, while women may agree on Option B in a second jury for the same reasons. Neither group may raise the possibility of the other alternative, particularly if all of the other jurors in the room appear to support the chosen option. Holding multiple mock trials can alleviate some of these concerns, and they can help consultants identify the presence of attitude or behavior “outliers” that deviate from the normal attitudes and behaviors of different juries. Relying on demographics is also legally problematic. The consultant should be aware that laws prevent trial teams from dismissing jurors based on certain demographic characteristics, especially race (Batson v. Kentucky, 1986; United States v. Biaggi, 1988). Although trial teams may find other grounds to dismiss individuals whose demographic characteristics predict a negative outcome, this should not be the primary reason for using demographic characteristics in a mock trial. Instead, demographic information provides a useful tool to create a mock jury sample that is representative of the venire pool. Juror Attitudes Attitudes are at the heart of many empirical investigations, and a plethora of jury scales and questionnaires attempt to measure the impact such attitudes have on jury decisions. For example, the Pretrial Juror Attitude Questionnaire assesses conviction proneness, legal system confidence, cynicism towards the defense, racial bias, social justice, and innate criminality as predictors in jury sentencing (Lecci & Myers, 2008). In addition, there are various attitudes scales relevant to legal decision-making, such as the Modern Racism Scale (McConahay, 1986), the Homophobia Scale (Hudson & Ricketts, 1980), and Violence Attitudes Scale (Jackson et al., 1994), among others. The Revised Legal Attitudes Questionnaire (RLAQ) assesses legal biases with regard to legal authoritarianism (Kravitz, Cutler, & Brock, 1993). The RLAQ is directly relevant to the criminal domain, using an

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easy to administer 23-item scale that measures authoritarian beliefs (i.e., beliefs that emphasize the rights of the government with respect to legal issues) and civil libertarian beliefs (i.e., beliefs that emphasize the rights of the individual). The RLAQ may provide trial consultants with a shorthand means of assessing jury bias among potential jurors. This can be particularly useful for consultants, as those who score high on authoritarian beliefs tend to be more likely to convict. Another common attitude scale in the criminal domain is the Jury Bias Scale (Kassin & Wrightsman, 1983), which assesses whether jurors hold prodefense or proprosecution biases. The Jury Bias Scale relies on participants’ assessments of the probability that the defendant committed the crime in question (i.e., a suspect who runs from the police most probably committed the crime) weighed against each jurors’ conception of reasonable doubt (the threshold they need to convict the defendant, i.e., a defendant should be found guilty if only 11 out of 12 jurors vote guilty). Although trial consultants can easily provide such questionnaires to mock jurors and focus groups, it is also possible to give them to prospective criminal jurors during the voir dire process. For civil trials, jury simulation research focuses on attitudes suited specifically to civil litigation. This may include attitudes about the “civil litigation crisis” in which potential jurors, after hearing media reports, conclude that there are too many frivolous lawsuits (Hans & Lofquist, 1994). Jurors who perceive a litigation crisis tend to be more skeptical of plaintiffs and have the desire to hold down large jury awards (Greene & Bornstein, 2003). Trial consultants can strive to discover jurors’ attitudes about litigation during the voir dire stage of the trial, but this information can also be handy in mock jury and focus group simulations.

Part Five: What are the Dependent Variables in a Mock Trial? Utilizing Quantitative Data Mock trials can produce both quantitative and qualitative data. Quantitative data include data expressed numerically. Examples of quantitative data can include data as simple as counts (e.g., number of mock jurors who initially vote guilty) or damage awards, though consultants may also employ more complicated Likert-type scales (i.e., numerical scales tapping into participants’ opinions on a given matter). For instance, a researcher may ask participants to rate their level of agreement with certain statements (e.g., “The expert witness’ testimony was easy to understand”) using a five-point scale with numbers representing a level of agreement (e.g., 1 = “strongly disagree” 3 = “neither agree nor disagree” 5 = “strongly agree”). Likert-type scales can supplement other data, such as verdicts (e.g., guilty or not guilty). In conjunction with verdicts, the consultant may ask mock jurors to rate their levels of confidence in that decision on a percentage scale (e.g., 50, 60, 100% confident in the verdict). The predictive value of quantitative data increases with larger sample sizes, as larger

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sample sizes are more resistant to the effects of outliers (i.e., data points that stray numerically from the bulk of the data). We recommend that consultants be familiar with these scales and the necessary skills for analyzing quantitative data before employing them in a mock jury or focus group study.

Utilizing Qualitative Variables Qualitative data include data that are not numerical, but rather provide descriptive elements of the data that consultants may find especially useful. In fact, trial consultants often deal with qualitative data when conducting mock trials or focus groups. Consider deliberation observations. Topics discussed by jurors during deliberation provide a rich source of qualitative data that the consultant should record. For example, consults can review the deliberations and extract themes that the jurors developed after listening to the trial testimony (e.g., how they pieced together the case facts into a narrative framework, or their impressions of the plaintiff, defendant, victim, attorneys, etc). If consultants choose to interview mock jurors after deliberation, many of their questions will lead to qualitative data (e.g., “what evidence did you find most convincing”). Although a great deal of empirical research on jury decision making involves quantitative data (Likert-type scales, damage award amounts), the qualitative data may elicit more detailed information about specific variables of interest. For instance, in addition to asking a juror to rate his or her confidence in a verdict, a follow-up question can ask the mock juror what factors influenced their confidence rating.

Selecting Dependent Variables Verdict Options and Including Lesser Charges Mock jurors in criminal cases will generally return a guilt verdict (i.e., guilty or not guilty), but the consultant must consider whether to include lesser charges on the verdict form (e.g., a first-degree murder case may also involve a manslaughter charge). Most criminal jurisdictions allow the inclusion of lesser charges in the case as long as the elements of the lesser charges are included in the greater charge (Koch & Devine, 1999). If these lesser charges are possible in a criminal case, the consultant must consider whether to include these charges in the mock trial. Although including lesser charges enhances the ecological validity of the mock trial, their inclusion may complicate an already complex mock trial proceeding. The choice to include lesser charges often depends on the defense’s goals, particularly in criminal trials that include lesser charges (e.g., manslaughter as a lesser charge of second-degree murder). Including lesser charges during a mock

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trial does influence the jury’s decisions. Charges that are more serious are generally more likely to result in acquittals (Kaplan & Simon, 1972; Vidmar, 1972), especially when lesser charges are included (Vidmar, 1972). Koch and Devine (1999) demonstrated that defendants are more likely to receive guilty verdicts on the lesser-included charge of manslaughter when the mock trial included additional charges. Inclusion of lesser charges also interacts with the strength of evidence (Devine et al., 2001). Consultants should thus consider this literature when deciding which charges to include. However, including the lesser sentencing option promotes realism in a mock trial, and it provides valuable insight into alternative verdicts mock jurors may choose. This may be beneficial in plea-bargain negotiations.

Civil Trial Variables Civil mock trials parallel many features of criminal mock trials (e.g., arguments, evidence), though consultants will consider different dependent variables in the civil law domain. When conducting mock trials with civil juries, a trial team may wish to explore juries’ decisions concerning both liability and damage awards. After the trial, the jury should deliberate on liability using standard jury instructions similar to the instructions used in the client’s jurisdiction. Although the trial consultant may wish to focus on simple decisions of negligence (i.e., the jury will return a verdict finding the defendant liable or not liable), specific details of the tort case may require more complex verdict forms. For instance, the defendant may argue that the plaintiff is partially to blame for a particular injury (i.e., comparative negligence). Depending on state law, if a jury finds the plaintiff to be partially responsible for the injuries caused by the negligence of the defense, then the plaintiff may receive reduced damages, or no damages (see Greene & Bornstein, 2003). If a trial consultant is working on a civil case involving the potential for comparative negligence, then the consultant should adjust the verdict sheet to include other verdict options, such as assigning a percentage of fault to each party. Other issues that often require complex verdict forms in civil courts include countersuits filed by the defendant, injunctive relief items, and multiple party litigation. If the mock jury finds the defendant liable, the consultant will also want to assess damage award decisions. During deliberation, consultants can observe what information jurors utilize to determine damage awards. The trial team should take special note when jurors discuss factors that should not legally influence damage awards (e.g., whether the damages are taxable, the amount of the attorney’s fees, etc.). Controlling deliberations in an actual trial is not possible, of course, but the trial team may want to prevent irrelevant pieces of information from swaying damage award decisions by requesting special jury instructions. The consultant may also request that the jury report the methods they used to calculate damage awards. While the consultant may wish to use an open-ended

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question asking mock jurors to explain the procedure they utilized to calculate damage awards, other measures may prompt the jurors. Some common methods jurors use to calculate damages in mock jurors simulation studies include following the recommendation of the plaintiff’s attorney (i.e., the ad damnum), picking an amount that “seems fair,” or relying on mathematical calculations from evidentiary material (e.g., bills, expert testimony, etc.). A mock jury verdict form may specifically request that jurors report a dollar amount for various components of damage awards (e.g., actual damages, pain and suffering, etc.). This pretrial tool is useful to explore which factors influence the size of the damage award, though actual jury trials rarely use such worksheets. Consultants should use caution when interpreting damage awards as simulation studies demonstrate that these awards typically are positively skewed and can be quite variable (e.g., Hart, Evans, Wissler, Feehan, & Saks, 1997). Thus, even after conducting multiple mock trials, mock jurors’ damage award verdicts may not be high in predictive value.

Testing the Effectiveness of Props and Evidence Mock trial sessions can be very useful for testing the effectiveness of props and trial evidence, especially if such evidence is controversial or a “key” to the outcome of the case. The methods for testing such effectiveness depend on the circumstances. The easiest way to determine how key pieces of evidence influence juror decisions is to ask whether certain pieces of evidence “stood out” or were “essential” in helping them reach a decision. Consultants can supplement this open-ended qualitative question with a quantitative questionnaire that lists all of the trial evidence and asks mock jurors to rate the importance of each piece in reaching a verdict. Mock jurors can also provide input about evidence that was lacking or confusing. For instance, the consultant should ask jurors if there was any evidence that the attorneys could better clarify with props, diagrams, or some other type of presentation.

Deliberation and Content Analysis When the jury discusses information during deliberation or during any follow-up interviews (e.g., a postdeliberation focus group session), the consultant receives a substantial amount of qualitative data. During deliberation, jurors may discuss witnesses, evidence, attorney statements, confusion about the law, and many other factors. This is a rich source of data for the consultant, and a content analysis is a useful tool for making sense of the data. To conduct a content analysis, the consultant should consider broad variables of interest (e.g., witness credibility discussion; discussion about legal issues). Next, the consultant will code these variables while viewing a video or other record of deliberation. Consultant may wish to examine the frequency with which jurors discuss important pieces of evidence (e.g., the number of references the jury makes to the defendant’s alibi), but consultants

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can also use more complex analyses (e.g., how many favorable vs. unfavorable comments a jury makes about a particular witness). A detailed explanation content analysis in deliberation is beyond the scope of this chapter, but the consultant will use this methodology often. Multiple books provide general information about utilizing content analyses (e.g., Krippendorff, 2004; Weber, 1990). Additionally, several research articles demonstrate the methodology applied specifically to jury decision-making (see e.g., Kaplan & Miller, 1987; Kramer, Kerr, & Carroll, 1990; Tanford & Penrod, 1986). Supplementing quantitative data with qualitative data will provide the consultant with a plethora of useful data.

Part Six: What Ethical Issues Should the Consultant Be Aware of When Conducting Mock Trials? Currently, there are few laws governing trial consultants (See Stolle, Studebaker, & Inskeep, in this volume). The American Society of Trial Consultants, however, does provide ethical guidelines in their Professional Code. The code includes a specific section on guidelines for conducting small group research (Small Group Research, 2008). The current version of the ASTC guidelines is available on their website http://astcweb.org/content/File/AboutUs/ASTC_Code_SGR.pdf. The guidelines suggest that the trial consultant holds a duty both to clients and to participants (e.g., mock jurors, focus group members). While all who practice trial consulting may wish to familiarize themselves with these guidelines, members of the ASTC should read the full version. The general duties to clients involve issues of confidentiality and privacy. In particular, consultants should take care to prevent disclosure of findings or case facts. Consultants’ duties to participants are similar to duties suggested by other organizations (e.g., APA, ASA) concerning treatment of human research subjects, such as assuring the participant’s involvement is voluntary and keeping data confidential. Consultants may wish to inform participants about who will have access to data, videos, and other information involving participation before beginning with the trial. The consultants should inform mock trial participants that they cannot serve on the actual jury (i.e., the jury if the case goes to trial) if they agree to participate in the mock trial. Consultants should direct participants to request a private conference with the judge if asked to serve on the jury, but the participants should not discuss the case with other perspective jurors. The court may also request a list of participants to crosscheck participants with those names on the venire list. The ASTC suggests that consultants ask to compare lists in camera or to offer to submit a sworn affidavit regarding the presence of participants in the venire. Attorneys may also seek the names of participants in mock trials through discovery, though the ASTC advises consultants to protect the anonymity of participants by suggesting that clients use privileges to protect against discovery.

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Conclusions In writing this chapter, we attempted to address the questions that trial consultants may have about mock jury research, including questions about jury methodology, the best means for presenting information to jurors, the best means for obtaining information from jurors, and analyzing mock jury data. Although research continues to grow with regard to the jury, research to date points to several recommendations for jury consultants. First, jury consultants should be familiar with the types of research methodologies available, especially: community surveys, posttrial interviews, shadow juries, focus groups, or full mock-jury research designs. Each can provide valuable insight into the manner in which jurors think. Whether the consultant should use small focus groups rather than full-scale mock jury studies is a decision often constrained by the consultant’s goals and budget, though a combination of methodologies may provide the most insight into how groups of representative mock jurors think about a particular case. Second, the information gleaned from mock jury and focus group sessions can be highly effective in plea-bargaining and settlement negotiations, where the consultant and attorney – armed with data supporting their case – can negotiate a better deal for their client. Consulting fees are relatively low for smaller trials, and attorneys may wish to take advantage of these surveys to provide some solid numbers about potential jury outcomes. As the complexity of the case increases, consulting becomes more important. Research can help attorneys and consultants devise ways to present the best possible case to jurors, particularly with regard to the format of opening statements, the questioning of expert witnesses, and the creation of trial props. Third, we recommend that consultants and attorneys use live presentations when possible, particularly when a budget and time limitations constrain the available options. Although several large-scale jury studies provide insight into the minds of jurors and juries, the average consultant will likely be concerned with a specific case that has specific parameters to explore. Through focus group questions and mock jury manipulations, consultants can better discover how jurors are likely to react to the information about the case, and they can assist the attorneys in constructing the most effective arguments for that case. Presentations in front of a mock jury panel also allow the attorney a chance for a full dress rehearsal, which can improve the attorney’s overall performance while simultaneously addressing any concerns jurors may have had over trial material. Fourth, although we realize that many attorneys have their own predilections about the ideal juror, we recommend caution when considering demographic predictors of decisions, as these variables may have little impact on decisions and use of them can raise Batson concerns. More important than demographics are the attitudes and biases that jurors from all backgrounds bring to the case. Consultants should be equally cautious about drawing the wrong conclusions from their data and avoid making hasty generalizations.

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Fifth, consultants should become familiar with the kinds of variables that make up the academic literature. Whether mock jurors provide qualitative or quantitative answers, the consultant should know how to analyze these responses and how to ­present them to the attorney in an easy-to-understand manner. Finally, consultants should treat mock jurors with the dignity and respect these paid volunteers deserve. Mock jurors could easily become real jurors, and the experiences they have with the consultant and attorneys may having a lasting impact on their views of the legal system. The American Society of Trial Consulting provides some ethical guidelines and professional codes for interacting with mock jurors, guidelines that protect human participants from undue harm in the course of their participation. Psycho­ logists must follow even stricter codes, conforming to the research guidelines of the American Psychological Association that acknowledge respect for participants in accordance with beneficence (maximizing participants’ benefits while minimizing their harm).

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Chapter 5

The Use of Survey Research in Trial Consulting Twila Wingrove, Angela Korpas, and Robert F. Belli

Survey research is among the oldest tools used by trial consultants. When the field first emerged in the early 1970s, assistance with jury selection was the only reason to hire a trial consultant (Barber, 1994; Lane, 1999). In fact, at that time, trial consultants were more likely to be called “jury selection experts” (Fulero & Penrod, 1990), and the principle methodology used to inform jury selection was community surveys, in which members of a community were asked about their views on relevant topics. Today, trial consultants offer a range of services beyond jury selection. As the range of services has grown, so have the contexts in which survey research is used. While surveys remain important in jury selection, trial consultants now use them at every phase of litigation. For example, they conduct surveys to support a change of venue motion, to test trial themes (strategic messages used to tie a case together or make an emotional impact), or to provide evidentiary support for the case itself. Whereas many people will think of surveys as paper-and-pencil instruments, trial consultants actually use an array of survey modes to achieve their objectives. In fact, self-administered paper-and-pencil questionnaires are not even the predominant mode used by trial consultants when conducting surveys. Instead, consultants often rely on interviewer-administered questionnaires – either via telephone or in person – to gather information. In addition, self-administered web-based designs are increasingly popular. Therefore, a skilled professional needs to be adept at designing, executing, and analyzing all forms of questionnaires. The purpose of this chapter is to review the varied contexts in which trial consultants use survey research, introducing relevant legal and methodological points of consideration in developing such surveys along the way. Accordingly, the chapter is divided into two broad sections: (1) the many contexts of survey research in trial consulting and (2) methodological considerations.

T. Wingrove (*) Department of Psychology, Appalachian State University, Boone, NC 28608, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_5, © Springer Science+Business Media, LLC 2011

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The Many Contexts of Survey Research in Trial Consulting This section introduces the most common purposes of survey research in trial consulting, organized by the phase of litigation for which they are used – pretrial, trial, and post-trial. Before embarking on this discussion, it should be noted that community surveys remain among the most common expectations of the hiring attorney. A community survey measures features of the community, including demographics, personal beliefs and attitudes, and behaviors, and tests for relationships between these features and attitudes toward the case that the attorney is trying. The community survey can cover a number of topics and serve a range of purposes, depending on the attorney’s instruction. Importantly, community surveys can be and are used at all stages of litigation. Therefore, discussion of community surveys will occur throughout this section.

Surveys to Aid Pretrial Strategy Attorneys often hire trial consultants well before the trial begins. By hiring the consultant early, the attorney can get assistance to inform a variety of aspects of pretrial strategy. This section introduces the most common pretrial uses of surveys. Change of Venue Surveys A “change of venue” refers to a change in the location where the trial is held. Legal practices and procedures for changes of venue vary greatly, and a detailed legal introduction is beyond the scope of this chapter, especially given that any hiring attorney should explain the relevant rules for changes of venue to the hired consultant. However, a brief introduction will serve as a foundation for introducing the use of survey research to support a motion for a change of venue. First, consultants should be aware that there exist some differences in who can request a change of venue, and these differences vary for civil and criminal cases. In civil cases, the plaintiff generally has the right to choose the trial venue from among a range of legitimate options. This right is conferred by statute and the legitimate options are generally determined based on where the actions that formed the basis of the claims took place. After the plaintiff files the case, a defendant can make a motion to change the venue if the defendant can show that a fair trial could not be had in that venue. The legal standard is often stated as allowing a change of venue if the defendant “cannot obtain a fair and impartial trial because of the undue influence of an adverse party, prejudice existing in the public mind, or some other sufficient cause” (Trahan v. Phoenix Ins. Co., 1967, p. 118). As with civil cases, defendants in criminal cases are most likely to motion for change of venue. A criminal defendant has a constitutional right under the Sixth Amendment to be tried in the district where the offense was committed. Defendants

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can waive this right by seeking to change the venue. However, prosecutors can only infringe on this right in very limited circumstances. For this reason, prosecutors rarely bring motions to change venue, and when they do, such motions are scrutinized more closely by the court (Blum et al., 2009). The legal standard for a change of venue in criminal cases is similar to the standard in civil cases. As with civil cases, the defense must demonstrate that the defendant could not receive a fair and impartial trial in the venue where the case was originally filed. In both civil and criminal cases, the two most common bases for seeking a change of venue are local prejudice and judicial conflict of interest or bias (Blum et al., 2009; Payne, 2009). The latter basis is an entirely legal argument, thus trial consultants are rarely brought in to assist with this kind of motion. By contrast, trial consultants are often asked to conduct community polls to demonstrate local prejudice. The standard for demonstrating prejudice has been described as “whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and the accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom” (Brooks v. State, 2005). Survey research is central to building a case that the community is prejudiced against the defendant. Shahani (2005) has concluded that public opinion polls are among the most persuasive evidence considered by judges when deciding whether to grant a change of venue. In many cases, both attorneys will present their own community attitude data to support their arguments for or against a change of venue. The court will then have to balance the results against each other to make its decision. To succeed in a motion for change of venue due to local prejudice, the attorney must demonstrate that actual prejudice exists in the community (Guthrie, 2009). In other words, it is generally insufficient to show that publicity was widespread or that community members were aware of that publicity. Instead, the attorney must prove that a large portion of the community was so affected by the widespread publicity that it is prejudiced against the defendant and the defendant cannot receive a fair trial in that venue because of this prejudice. For example, a court in Delaware denied a motion partially based on its conclusion that the survey did not prove the level of prejudice required to justify a change of venue (State v. Cooke, 2006). In that case, the defense presented the results of a survey in which 60% of the respondents indicated never having heard of the victim and 67% said they had never heard of the defendant. Moreover, more than 60% of respondents said that they were unsure that the defendant was guilty, and 46% said that they had not formed an opinion about the case. The court concluded that these figures did not demonstrate a high level of prejudice against the defendant and denied the motion. The change of venue motion must address the nature and extent of publicity and public attitudes toward the case. Usually, this is done by a combination of objective analyses of media coverage (i.e., content analysis) and survey research (Studebaker, Robbennolt, Pathak-Sharma, & Penrod, 2000). The survey instrument can measure public awareness of media coverage, awareness of the case, and general attitudes about the case. An effective survey will address not only attitudes toward the defendant but also attitudes toward other parties involved in the case, like the victim

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(Shahani, 2005). The reason is that prejudice against other parties to the case might interfere with the requesting party’s ability to receive a fair trial just as prejudice against the requesting party might have that effect. Proper sampling is also important to the success of a change of venue survey. Courts have looked unfavorably upon community surveys that inadequately sample the community of interest. For example, returning to the Delaware case, the court noted that the community survey sampled only 100 out of the more than 400,000 jury-eligible residents in that county (State v. Cooke, 2006). It should be noted, however, that the court did not use this fact to conclude that the survey was methodologically unsound. Instead, the court used this fact to argue that the community was large enough that it would be fairly easy to find a number of impartial residents to serve as jurors. An effective survey should assess not only the community in which the plaintiff or prosecutor filed the case but also nearby venues where the court could move the trial (Shahani, 2005). Studying nearby venues as well as the present one can serve at least two purposes. First, a comparison between the amounts of prejudice among multiple communities can demonstrate a high level of prejudice in the current venue. Second, if there is extensive bias in the current venue and in the nearby venue, then the judge would likely deny the motion for a change of venue, seeing it as a waste of resources to grant the change in venue. This will be especially likely in cases that received a high amount of pretrial publicity on a regional or national level. According to Shahani (2005), some courts and commentators have expressed skepticism toward the use of community attitude surveys in motions to change venue. In fact, there are innumerable cases where courts have rejected motions for changes of venue despite survey evidence supporting the change (e.g., State v. Davis, 2003; State v. Horton, 1998; State v. Sparks, 2004). This is not surprising, given a couple considerations. First, if both the defendant’s and plaintiff’s attorneys are presenting information collected from the same community which state different results, the judge will reasonably question the accuracy of both surveys. Judges are typically unfamiliar with social science methodology, so they may not have the skills to distinguish between a well-designed survey and a poorly designed one. For example, researchers have demonstrated that judges have difficulty identifying methodological flaws in scientific evidence (Kovera & McAuliff, 2000; Kovera, Russano, & McAuliff, 2002). Therefore, the two surveys may just end up canceling each other out. Second, the people conducting these surveys – trial consultants – are employees of the attorneys. It is natural to be skeptical of any data collected by someone hired by a party to the case, and some scholars have argued that this skepticism exists within the legal system (Champagne, Shuman, & Whitaker, 1996; Shuman, Whitaker, & Champagne, 1994). Even so, some courts have come to expect community attitude surveys in support of a change of venue motion, and their presence or absence has heavily influenced court decisions on these motions. For example, the North Dakota Supreme Court denied a change of venue motion largely because the defense did not present a community attitude survey into evidence (State v. Erickstad, 2000). Because of the wide variability in courts’ weight of community surveys to support changes of venue, the trial consultant must consult with the hiring attorney to find out about local judicial

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attitudes about surveys. The hiring attorney should be able to tell the trial consultant how receptive judges generally are toward community surveys used in this context, and also what kinds of information the local courts expect to see in such surveys. Regardless of how friendly the local court is to this kind of survey research, the consultant should always take great care to create as unbiased an instrument as possible and to assure that the sample of respondents is representative of the venues under investigation. It is the responsibility of the trial consultant to make it clear to the attorney that, while the attorney may be paying for the research, the researcher has no stake in the actual results obtained. In the end, both the attorney and the trial consultant will benefit. The appearance of impropriety can clearly damage the case, as well as the careers of the consultant and the attorney. The trial consultant should also be aware that the court has complete discretion to grant the change of venue motion, and the survey results are but one consideration the court will weigh. Another consideration is the potential for jury selection to effectively weed out biased jurors (Guthrie, 2009). It is not uncommon for a judge to continue a change of venue motion until after jury selection or to deny a motion altogether in favor of careful jury selection and instruction. In fact, if a change of venue is sought prior to jury selection, many courts will weigh the ability of jury selection to weed out biased jurors in reaching its decision on the motion (State v. Cooke, 2006; State v. Sparks, 2004). The reason for this practice is that the court wants to examine both the familiarity with the case and the extent of prejudice among actual potential jurors, rather than those represented in a survey of the larger community. The judge may believe that careful selection and instruction of jurors can eliminate some of the present bias. Jury Selection As mentioned in the introduction, the trial consulting profession began with providing assistance with jury selection, and from the beginning, survey research was a central component of systematic or scientific jury selection. While the methods of jury selection consultation have evolved over the past 30 years, survey research remains at the core (Barber, 1994). Survey research can assist attorneys at several stages of jury selection, from developing selection strategy to voir dire, which is the process during which judges and attorneys question jurors regarding their suitability to serve on juries. With the assistance of trial consultants, attorneys are better equipped to exercise their legal opportunities to prevent potential jurors from being selected to serve on the jury. By law, attorneys have two types of opportunities to remove potential jurors from the panel. First, attorneys may exercise “challenges for cause.” Challenges for cause are used when the attorney believes that a potential juror could not be a fair and impartial decision-maker in the case. Generally, challenges for cause must have a clear, explicit foundation for their use, and only a few circumstances merit removing jurors for cause. Attorneys can make as many challenges for cause as they see fit. However, the burden is high for justifying challenges for cause, so their use is rare.

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Trial consultants are more often used in assisting attorneys with making the second kind of challenges, which are called “peremptory challenges.” Peremptory challenges are limited in number, but the attorney has much wider discretion in executing them. With a peremptory challenge, an attorney can excuse a prospective juror without any stated reason. The only federal legal limitation on peremptory challenges is that a prospective juror cannot be removed on the basis of race/ethnicity (Batson v. Kentucky, 1986) or gender (J.E.B. v. Alabama, 1994). States may further limit the use of peremptory challenges. To help with jury selection, trial consultants may create three different types of surveys: community surveys, prospective juror questionnaires, and voir dire scripts. Community Surveys When hired in the early stages of case preparation, attorneys may ask trial consultants to conduct a community survey, sometimes called a “community attitude survey” in this context. The community attitude survey can discern the relationship between attitudes toward the case and individual characteristics. Usually, consultants will use this information to create “juror profiles,” which are lists of characteristics that the attorney should pay particular attention to during jury selection (Covington, 1985; Fahringer, 1980; Lane, 1999). The attorney will gauge prospective jurors in comparison to the juror profiles, and make decisions of exclusion based on this information. That is, the attorneys will know which individual characteristics are related to bias against their clients and may use their peremptory challenges to eliminate individuals with those characteristics. A community survey that aids with jury selection will need to, at a minimum, include a description of the particular issues of the case, assess respondents’ reactions to the case, and ask a range of demographic and background questions. As a general rule, jury selection surveys proceed in this fashion: the interviewer provides a synopsis of the case, asks the respondent to evaluate the case (render a verdict, give strength of confidence in the verdict, award damages, etc.), and then asks a long list of personal questions about the respondent (Loftus & Greene, 1984; Yarbrough, 2001). The depth of personal questions has increased over the years (Fulero & Penrod, 1990). Whereas earlier practice limited questions to demographic characteristics, today the personal questions go beyond a mere list of demographic factors to include attitudes and personal experiences that might affect perceptions of the particular case. In addition, if the parties to the case are well known to the community or the case has received a lot of media attention, the consultant may include questions aimed to measure community prejudice against the defendant. This way, the information from the survey could simultaneously aid jury selection and support a change of venue motion, should the attorney elect to pursue one. In addition to creating juror profiles, community surveys can inform voir dire in other ways. For example, attorneys could use the results of these surveys to identify prospective jurors who may not be answering questions in open voir dire honestly (Barber, 1994). The attorney can ask prospective jurors some of the same questions

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asked in the community survey. If the prospective juror answers the question with a response that very few people in the community offered, then the attorney might want to pursue with follow-up questions. The attorney can take the time to probe that prospective juror to try to gauge whether the prospective juror is being truthful. This approach is not a heuristic for weeding out prospective jurors, but rather is one of many tools the attorney can use to navigate through the voir dire process. As with any community survey, sampling is very important in this context. When the survey is intended to aid with jury selection, pains should be taken to ensure that those being included in the community sample are as representative of potential jurors as possible. One way to do this is by including selection criteria that mimic the jury pool. For example, if the jury pool in a particular jurisdiction consists of all persons with driver’s licenses, then the researcher should ask potential survey participants upfront if they have a local driver’s license and screen them out if they do not. Prospective Juror Questionnaires The process of jury selection is formally called voir dire. During voir dire, either the judge or the attorneys will ask prospective jurors a variety of questions to determine whether they are appropriate candidates to sit on the jury. It is during voir dire that the attorney utilizes the available peremptory challenges and challenges for cause. If unchallenged, a prospective juror will become a member of the jury. Traditionally, the attorney’s only chance of learning about prospective jurors is during the questioning at voir dire. Today, however, some jurisdictions allow attorneys to craft questionnaires for prospective jurors to complete before oral questioning. In conjunction with the community attitude survey, the prospective juror questionnaire can be a quite useful instrument in jury selection. Based on the community attitude survey, the attorney has a list of characteristics that were significantly related to bias against the case. Now, with the prospective juror questionnaire, the attorney has an opportunity to gauge where potential jurors fall on the juror profile. By studying their responses, the attorney can identify jurors to consider for exclusion. Answers to questions can also identify additional topics that that attorney should further explore during oral questioning (Yarbrough, 2001). For example, if a potential juror indicates familiarity with the case at hand in the prospective juror questionnaire, then the attorney can pursue this point by asking the juror detailed questions about the nature of that familiarity and whether it will impact the juror’s ability to be impartial. In this way, the attorney can individualize voir dire for each potential juror. Responses to prospective juror questionnaires have the power to suggest the manner in which would-be jurors will behave once on the jury. For example, Greeley (1995) discussed the questionnaire used in the O.J. Simpson trial. One question was, “Do you have the authority to hire and fire employees?” The belief was that people who answered “yes” would be more likely to be leaders on the jury panel. The questionnaire also asked prospective jurors to “name the person of whom you are a great fan.” According to Greeley (1995), the reason for including

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this item was that the litigation team believed that people who gave the name of a celebrity would more likely favor Simpson. However, one can question whether either of these questions was as effective as the consultants had intended. For example, with regard to the second question, using the word “fan” might trigger thoughts of celebrities more than presidents or historical figures. One is probably more likely to say they are a “fan” of a famous athlete than a past president. The point is that the wording of a question is crucial, and trial consultants should always be careful to choose appropriately. It is important to point out that attorneys often have very little time between receiving responses to the prospective juror questionnaire and oral voir dire (Covington, 1985). Time constraints require that consultants work quickly, comparing responses for multiple items to “ideal” responses, especially if the consultant is not present ­during voir dire. It is in the attorney’s best interest to be as familiar as possible with the trial consultant’s recommendations on which responses, or combinations of responses, are most important. Sometimes, trial consultants may create a system for the attorney to use during voir dire to better evaluate and rank each prospective juror (Barber, 1994; Covington, 1985; Jury Selection and Composition, 1997). Voir Dire Script Design The trial consultants’ skills in questionnaire design can prove very useful for the attorney during the in-person questioning that occurs at voir dire. Consultants can assist litigators by writing the script, or more likely an outline, for the litigator to use during oral voir dire (Becker, 2003; Covington, 1985). This can be helpful in a number of ways. First, as just discussed, the wording of questions can have an enormous impact on responses, as can the order in which the attorney asks the questions. Consultants can draft questions and place them in the order that will be less likely to lead to biased responses. This alone can lead to significant improvement in the effectiveness of questioning at voir dire. Second, if the consultant has also conducted community attitude surveys, then the consultant knows what attitudes or characteristics are most important to assess in prospective jurors. The consultant can help draft specific questions or topics that will attain the needed information. If the consultant was able to do research on individual jurors before the time of the voir dire, then that information can be used to create more individualized voir dire questions as appropriate. Again, all of this will assist the attorney by helping identify which jurors are more likely to be biased against the client, and therefore, should be excluded. Finally, the consultant can aid the attorney with creating a script that will successfully introduce trial themes to the jury panel (Becker, 2003). In formulating questions for prospective jurors, a skilled trial consultant can introduce themes that the attorney intends to present at trial. Themes are the threads that hold an attorney’s case together. A convincing trial theme ties different testimony and evidence together to create a message or story for the jury. For example, one classic trial theme is the clash between consumer greed and consumer safety (Nations & Singer, n.d.).

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Researchers have demonstrated that presenting trial information within the context of a coherent theme or story can have a significant impact on jury decisionmaking. According to the “story model,” jurors process evidence more easily and remember it better when it is presented in the context of a coherent story (Hastie, 2008; Hastie & Pennington, 2000; Hastie & Wittenbrink, 2006; Huntley & Costanzo, 2003). In addition, jurors tend to fill in gaps of missing information and make decisions about guilt with reference to their preferred story. Thus, an attorney who can effectively create a story that incorporates the evidence and is believable to the jury will have an advantage during decision-making. To the extent that a trial consultant can assist the attorney with crafting voir dire questions that begin introducing that story to the jury, the attorney’s case will benefit. Successful themes help the jury relate to the case on a personal level (Yarbrough, 2001). If the consultant has previously conducted a community attitude survey, he can use the results to inform which themes, messages, or stories are most relatable to jurors and should be introduced in the prospective juror questionnaire or during voir dire. Ethical Considerations There are some accusations in the field that it is inappropriate for trial consultants to help attorneys to “manipulate” the jury pool in their client’s favor. The counterargument is that trial consultants are not seeking to create a jury who especially favors their client, but merely trying to create a level playing field by excluding those who appear biased against their client (Barber, 1994). This is an important ethical debate for a couple reasons. First, an obvious extension of the argument that trial consultants assist attorneys in creating a biased jury is that trial consultants create an uneven playing field for the parties (Strier, 1999). The Sixth Amendment of the U.S. Constitution guarantees criminal defendants a right to an “impartial jury.” To the extent that trial consultants create a partial jury, they arguably interfere with that constitutional right. Second, there are legitimate concerns that any widespread perception that consultants are stacking juries will undermine overall respect for and faith in the legal system (Stolle, Robbennolt, & Wiener, 1996; Strier, 1999). There is some evidence to support the notion that unequal access to trial consultants leads people to perceive trials as less fair. In a survey study, Stolle et  al. (1996) found that people perceived trials as fairer when either both sides of the case had a trial consultant or both sides did not, as compared to only one side of the case having a trial consultant. These findings suggest that public perceptions of fairness might indeed be influenced by the presence of trial consultants. However, it is unclear whether these perceptions of unfairness globalize to a decreased respect for the legal system as an institution. Theory and research in procedural justice suggests that this globalized disrespect for the legal system is a potential consequence of widespread use of trial consultants (Tyler & Jost, 2007), but there is little empirical research to support this idea in the trial consulting context.

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Surveys Used for or at Trial Trial Strategy Just as trial consultants can use survey research to inform pretrial strategy, they can use surveys to inform strategy used during the trial itself. Specifically, consultants can use community attitude surveys to test themes, gauge attitudes toward parties and the case of the facts, and assess different methods of information presentation, all of which will inform the litigator as he is preparing to try his case. Perhaps most importantly, responses to community attitude surveys can inform the decision of whether to try the case at all (Yarbrough, 2001). Community attitude surveys typically include questions about verdicts, damages, and settlement amounts. The litigator can use that information to decide whether it is in the client’s best interests to settle or go forward. For example, if survey results indicated a good chance of winning, but the client would rather settle, the attorney can use the results to persuade the opposing party to offer a better settlement to avoid trial. Surveys as Evidence In addition to informing trial strategy, survey research can sometimes add ­supplementary evidence to bolster a case. Because this type of research is not commonly used, trial consultants rarely do it. In fact, it is unclear whether attorneys typically rely on trial consultants or whether they go to other sources or conduct the research in-house. In the case that a consultant is called upon to conduct this kind of research, the consultant should know upfront whether the information might be admitted as evidence. If so, the consultant should discuss with the attorney the relevant rules of evidence, and plan an approach to gather information that will be useful and admissible at trial. The last thing that either party wants is to spend a lot of time and money on a survey that the court refuses to admit at trial. Generally, the need for surveys as evidence is common in some very specific areas of law where the outcome of the case depends upon social fact. This next section discusses two such areas: trademark and obscenity law. Example 1: Trademark Law Survey research is widely used in trademark cases (Austin, 2004; Thornburg, 2005; Walker, 2002). There are four distinct areas of trademark law in which survey research is conducted: proving that a trademark has achieved a secondary meaning, to speak to whether a mark is considered generic, to prove consumer confusion in infringement cases, and in trademark dilution cases (Harris, 2002; Thornburg, 2005). As an introduction into the use of survey research in trademark law, we will review two of these areas: consumer confusion and trademark dilution.

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Consumer Confusion The oldest use of survey research is in trademark infringement cases, dating back to the 1960s. Infringement cases are also among the most common situations in which courts admit survey research as evidence at trial. In fact, the use of survey research in infringement cases has become so common that it is practically the norm (Lipton, 1988; Monahan & Walker, 2002). For example, Monahan and Walker (2002) described surveys as being “routinely employed” in these cases (p. 416). There is some empirical support for this proposition. In his review of cases decided between 1993 and 2003, Austin (2004) found that 57.4% of all published trademark infringement cases included survey research. The core element of trademark infringement is consumer confusion. The plaintiff must prove that people confuse the defendant’s mark with the plaintiff’s to be liable for trademark infringement, and this is exactly what surveys venture to do. In earlier cases, surveys designed to prove confusion were methodologically unsophisticated. For example, in one of the earliest cases, Zippo Manufacturing Co. v. Rogers Imports, Inc. (1972), the dispute was over two brands of cigarette lighters – Zippo and Rogers. In that case, the plaintiff conducted a survey in which the researcher visited 500 respondents at home, presented each with a Roger’s lighter, and asked who made it. In total, 35% of the participants thought that the Roger’s lighter was actually made by Zippo. The court found this convincing evidence of consumer confusion. Since then, the courts have raised the standards for survey research considerably. For example, in 1994, a federal appellate court considered surveys in the case of two football leagues fighting over the name “Colts” (Indianapolis Colts v. Metropolitan Baltimore Football, 1994). The Indianapolis Colts belonged to the National Football League (NFL) and were seeking an injunction against the Baltimore Colts, owned by the Canadian Football League (CFL) on the grounds that consumers were likely to think that the Baltimore team was a member of the NFL and somehow connected to the Indianapolis Colts. Both parties conducted surveys and presented them as evidence in court. The plaintiff’s study included a large sample with multiple test sites. The plaintiff’s researchers went to 24 malls across the country and asked respondents self-identified as football fans a range of questions about the trademark at issue: “Baltimore CFL Colts.” In addition, they asked a control group of respondents the same questions about a fictional team, “the Baltimore Horses,” to test whether the confusion surrounded the use of the name “Colts” or whether it was due to “Baltimore.” The defendant’s researcher, on the other hand, went to one mall in Baltimore and asked a group of respondents “three loaded questions,” as the court described (p. 415). For the consultant, what is important to note about this study is the court’s reaction to both researchers. The court scolded the defendant’s researcher for his poor methodology, giving the results little weight. By contrast, the court commended the plaintiff’s researcher. What, in particular, did the court find important? First, the plaintiff’s researcher identified the appropriate population – those who considered themselves fans of football and bought football merchandise – in other words, the consumers at the heart of the claim. Different courts hearing different cases have

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strongly endorsed this concern over proper sampling. As the court in Amstar Corporation v. Domino’s Pizza (1980) said, the “appropriate universe should include a fair sampling of those purchasers most likely to partake of the alleged infringer’s goods or services” (p. 264). Second, the Indianapolis Colts v. Metropolitan Baltimore Football Court recognized the plaintiff’s use of a control group as indicative of a higher quality survey, although it acknowledged that using the name “Baltimore Horses” was not the most realistic of comparisons. The two cases presented here are but one of many infringement cases in which litigants have successfully used surveys they are intended to illustrate the varied methodologies employed by researchers to investigate the extent of consumer confusion. The methodologies that researchers use in these types of cases vary extensively. Harris (2002) identified three formats that consumer confusion surveys typically follow. The first is the format employed in both Zippo and Indianapolis Colts: Respondents view a product and identify the producer, owner, or marketer of product. Later, the researcher probes the respondents asking them to describe why they answered the way they did. It is important to note that while Harris’s categorization applies to both of the cases above; the surveys nonetheless vary widely in methodological quality. Given current standards on admissibility of scientific evidence in general, and specifically, courts’ familiarity with survey research to prove consumer confusion, the survey researcher would be wise to include multiple test sites, a large sample of the consumer in question, a control group, and all the other components of well-designed studies. Harris’ (2002) second category is surveys in which participants are shown both products and asked if they are made by the same or different companies. The author refers to this as a “product lineup format.” Finally, surveys may investigate whether respondents associate two products with each other based on the similarities between the trademarks. Each of these three formats have their strengths and weaknesses, and the choice of which format is appropriate will vary depending on the jurisdiction, the researcher’s preference, and the particular facts of the case. Trademark Dilution In 1995, Congress passed the Federal Trademark Dilution Act (1995), which protects famous trademarks from dilution by use of another trademark. Dilution can occur via several paths. Shanti (2001) divided types of dilution into three categories: blurring, tarnishment, and alteration. Blurring occurs when a similar trademark is used for a product that is dissimilar to those associated with the more well-known trademark, thereby, theoretically at least, altering perceptions of the more familiar trademark. For example, Bible (1999) used the hypothetical of a company introducing Black and Decker baby food into the market. Black and Decker is widely known for making tools and is not in any way associated with baby food. However, once baby food is introduced with the same name, the argument would be that the “Black & Decker mark’s equity would begin to blur from tough to tender and from durable to delicate” (p. 328). Tarnishment occurs when the junior trademark is used for a lower-quality or somehow disreputable product, detracting from the reputation of the famous mark. Alteration occurs in ­comparative

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advertising when the junior company alters the more familiar trademark and presents it to customers in the altered format. This area of law is still relatively new, and so, the use of survey research is not as well-established as it is in trademark infringement. However, courts and scholars both have addressed the use of surveys in dilution cases. In Moseley v. V. Secret Catalogue, Inc. (2003), the Supreme Court addressed the use of surveys in dilution cases. In holding that the plaintiff must prove actual dilution, rather than a likelihood of dilution, the Court implicitly acknowledged that survey research may be used to prove actual dilution, while noting that survey research will not be necessary if actual dilution can be proved by other means, such as proving loss of sales or profits due to the presence of the competing trademark. Scholars’ reactions to Moseley and to the use of surveys in dilution cases in general have been somewhat mixed, although the trend seems to be favoring the use of surveys. In fact, many scholars are advocating the use of surveys in dilution cases in two particular ways: to speak to whether actual dilution exists (Bunker, Stovall, & Cotter, 2004; Mermin, 2001) and to prove that a trademark is famous (Bunker et al., 2004; Shanti, 2001). With regard to actual cases, it seems that consultants have used surveys more commonly for the former purpose. In Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Dev. (1999), the Fourth Circuit admitted evidence of a survey intended to prove dilution. In this case, the state of Utah had begun using the slogan “The greatest snow on earth” in its tourism campaigns. The plaintiff was suing for dilution because of the slogan’s similarity to the Ringling Bros. famous slogan, “the greatest show on earth.” The plaintiff presented participants with the phrase, “The greatest _______ on earth,” and asked them to complete the phrase. The researchers conducted the survey both within and outside of Utah and found that within Utah, roughly one-quarter of the sample said “show” first and one-quarter said “snow” first. Outside, 41% of the participants answered with “show.” The court was not satisfied that this proved dilution, but did not dismiss the use of surveys overall. It reasoned that a “skillfully constructed consumer survey designed not just to demonstrate mental association of the marks in isolation, but further consumer impressions from which actual harm and cause might rationally be inferred” (p. 465) would be an acceptable method of proof. In other words, the survey must demonstrate that introduction of the junior mark has somehow diminished the distinctiveness of the famous mark. Mermin (2001) proposed three different ways in which survey research might demonstrate blurring. The first method has the strength of being methodologically sound, but it requires foresight and anticipation of possible litigation. That is, a party could measure consumers’ perceptions of the famous trademark before the junior trademark appears in commerce to obtain a baseline, then again, after introduction of the defendant’s trademark. Bunker et al. (2004) recommend that companies be proactive and measure baseline perceptions before legal problems arise. While this may seem like a costly strategy, remember that these trademarks are necessarily famous, and so the companies do have the resources that other companies may not have. Furthermore, in the end, the presentation of this information could promote settlement and prevent litigation, thereby avoiding the expenditures associated with lengthy trials.

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The second approach recommended by Mermin (2001) would be appropriate in situations where the junior trademark is only available in a limited geographical area. In these kinds of cases, researchers could survey people inside and outside of the defendant’s geographic area to test whether perceptions of the famous trademark are different for these different areas. The plaintiff used this approach in Ringling Bros (described above). The third possible approach would be to compare perceptions of the plaintiff’s mark between those familiar with the defendant’s mark and unfamiliar with it. If perceptions or identification of the famous trademark are different between samples, then that is good evidence of blurring. In addition to providing evidence of blurring, survey research could also be helpful in dilution cases by proving famousness. The Federal Trademark Dilution Act only protects trademarks that are famous and distinctive, so if the defendant could prove that the plaintiff’s mark is not famous, then the case would not even get to the dilution evidence. To date, famousness has not been an issue of debate in dilution cases. However, as time goes on, the question of whether or not a trademark is actually famous is bound to become increasingly contested. In recognizing this, Shanti (2001) proposed factors that courts should consider in determining famousness, one of which was public recognition, which could undoubtedly be demonstrated through survey research. For example, surveys could measure trademark recognition in the relevant consumer community. Example 2: Obscenity Law There is a history of using survey research in obscenity litigation. In such cases, the court charges the jury with the responsibility of determining whether the material in question is, in fact, legally obscene. To do so requires application of the Miller test, named for the Supreme Court case that detailed the legal standard (Miller v. California, 1973). While the case is over 30 years old, the legal standard remains the same. There are three prongs to the Miller test, all three of which must be satisfied. The first question is “whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest” (p. 15). The second question is “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law” (p. 15). Finally, the jury must decide “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (p. 15). The first two prongs, often called the “prurient interest” and “patent offensiveness” requirements, are the ones most often addressed in surveys. Note that this element requires that the trier of fact apply contemporary community standards, not their own personal opinions, of the material in question. While the language of the patent offensiveness requirement does not specifically reference the contemporary community standards, the Supreme Court has subsequently made it clear that ­community standards are applicable here as well. In Pope v. Illinois (1987), the Supreme Court restated its position that both prongs require application of the ­contemporary community standard.

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Thus, researchers use surveys to identify and define the community standard that jurors should apply. One of the first issues is how to define the “community.” Fortunately, the Supreme Court in Hamling v. US (1974) clarified that the geographical boundaries of the community, for these purposes, are the territorial jurisdiction of the particular court in which the case is being tried. Therefore, the community standard should represent the views of the geographic region where the court is located. While the geographical boundaries of the applicable community are clear, the concern with obtaining an acceptable sample does not end there. If the survey does not accurately represent the appropriate community, the court will surely exclude it from evidence. Clark (1993), a Common Pleas Court Judge in Ohio, urged researchers to collect data from a stratified sample. He argued that the survey sample should represent the community on several demographics, including age, race, gender, marital status, educational level, and socioeconomic status. Even when the sample is demographically representative of the target population, the trial judge may still exclude a survey because it lacks representativeness. For example, in St. John v. State of North Carolina Parole Commission (1991), the appellate court affirmed the lower court’s decision to exclude a survey, in part, due to “serious questions regarding whether those selected to participate in the study were ‘average’ members of the community” (p. 412). The survey in question involved adult residents of the county in which the court sat. The researcher randomly selected, called, and invited participants to come to the study site to watch a film – either an X-rated or a control film. Despite using what is generally considered sound methodology to obtain a representative sample – random digit-dialing of local residents – the court was concerned that, given the nature of the survey, the pool of people who agreed to participate by agreeing to watch lewd material would be inherently skewed toward finding the material acceptable. It is unclear to what extent this is true, and if it is, how one could avoid it. One possibility is to avoid creating an instrument that involves actual viewing of the explicit material. However, that runs the risk of raising irrelevancy objections, and thus, being inadmissible. This example illustrates that the researcher must strike an important balance between representation and relevance. Relevance is equally important when it comes to the admissibility of survey research in obscenity cases. Indeed, courts have set a high standard for relevance in these cases. Numerous cases have excluded survey research (maybe more than have admitted them) because they found the questions to be irrelevant to the subject at hand. Perhaps the most important point is that the questions in the survey must be as specific as possible to the material in question (see, e.g., State v. Anderson, 1988; State v. Caudill, 1991; State v. Midwest Pride IV, Inc., 1998). In County of Kenosha v. C & S Management, Inc. (1999), the court made clear that a survey asking respondents “to opine about sexually explicit material in the abstract” is “not relevant to the determination of obscenity in a particular instance” (p. 410). (It should be noted that not all courts have excluded a survey that gauged general opinions. See, e.g., State ex rel Pizza v. Strope, 1989.) Even if the survey questions describe the specific material accurately or satisfactorily, the judge may still exclude the survey as irrelevant if

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the court believes that the questions are “inadequate to capture the graphic display of sexual acts” displayed in the material (Toro v. Norfolk, 1992; US v. Pryba, 1988). Clearly, admission of a survey of community standards is not a sure thing. However, awareness of the varied reasons for exclusion should aid the researcher in designing a stronger instrument. To further improve the chances of designing a legally relevant survey, the researcher should review cases in that particular jurisdiction to determine if surveys have been admitted in the past. Frequently, the court opinions will cite examples of questions included in surveys, and it may be a wise decision for the researcher to use those exact phrases, to whatever extent possible. While it is not possible to list all questions that courts have found admissible, it may be helpful to provide a few examples. In Asaff v. State (1990), the Court of Appeals of Texas concluded that the trial court’s admission of the following questions was acceptable (p. 331): • Do you think standards have changed in Texas so that the showing of nudity and sexual activities in such video cassettes, movies and magazines, available to adults only, is more or less acceptable today than in recent years? • Do you think it is or is not tolerated in Texas for the average adult to obtain and see adult video cassettes, movies and magazines showing nudity and sex if they should want to? • Do you believe you should or should not be able to see any showing of actual sex acts between adults in X-rated video cassettes, or adult movies and magazines if you should want to? • Many neighborhood video stores in Texas have video cassettes some of which are X-rated with adult performers and show nudity and sex. Is it or is it not tolerated in Texas for these establishments to rent and/or sell X-rated videos to adults requesting such material? • Most adult video cassettes, movies and magazines show actual sex acts in great detail and with close-ups of the sexual organs. Would viewing this type of material cause you to have an unhealthy, shameful or morbid interest in sex? In Saliba v. State (1985), the Court of Appeals of Indiana reversed the lower court’s decision to exclude the following questions (p. 1191): • Do you personally think it is acceptable or not acceptable for the average adult to see any depiction of actual or pretended sexual activities shown in movies and publications that he or she wants to? • In your opinion, is it now all right or not all right in the state of Indiana for –– Adults who want to view them, to purchase magazines that show nudity and actual or pretended sexual activities? –– Movie theaters, restricting attendance to adults only, to show films that depict nudity and actual or pretended sexual activities for adults who want to attend? –– Bookstores that restrict admittance to adults to sell publications and movies depicting nudity and actual or pretended sexual activities for adults who want to go inside and buy them?

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–– Arcades that restrict admittance to adults only to show films that depict nudity and actual or pretended sexual activities? • Finally, we have used the phrases “nudity” and “sexual activities” in the interview. What we mean by these terms is total male and/or female nudity, and sexual intercourse including all kinds of sexual variation. Is that what you understood we meant, or did you think we meant something else? In more general terms, Clark (1993) has offered technical advice in creating a community standards survey that will pass standards of admissibility. He stresses the importance of balancing the need for language that mirrors the Miller test with the need to create questions that will be easy to understand by the average community resident. He recommends using the Criminal Pattern Jury Instructions as a starting point, and altering them as little as possible. These are instructions that jurors will receive, and thus, explain the legal standard in the exact terms that the jury will hear. The instructions follow Miller almost word-for-word (pp. 51–52): 1. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photographs] appeal mainly to a morbid, degrading, or unhealthy interest in sex? 2. Would the average person, applying current community standards and viewing the [photographs] as a whole, find that the [photographs] show or describe sexual conduct in an obviously offensive way? 3. Would a reasonable person, viewing the [photographs] as a whole, find that they lack serious literary, artistic, political, or scientific value? In sum, creating a methodologically sound survey is difficult in itself, but in the area of obscenity law, the designer will have to pay particular attention to certain aspects to improve the chances of admissibility. First is the issue of representativeness. A sound survey, by definition, must contain a sample that represents the target population. When creating the community attitude survey, researchers should be particularly sensitive to the issue. Courts have repeatedly excluded surveys because the sample did not adequately represent that particular community. The target population will always be the territory of the court where the case will be tried. Beyond this, the researcher should take care that the sample is stratified to represent the community on a variety of demographics. The second issue is one of relevance. Again, for any evidence to be admissible, it must be relevant to the issue. However, courts have appeared particularly stringent when deciding relevance in obscenity cases. The researcher must write questions that are both specific to the material and mirror the language of the legal standards to the greatest extent possible. Summary Remarks The purpose of this section was to provide an introduction of the use of survey research at trial. Consultants may use surveys both to prepare trial strategy and to present as evidence to prove elements of the case. In the former, community attitude surveys may

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be used to help the attorney decide whether to settle, to determine what damages are likely, or to test trial themes and arguments. In the latter, surveys are frequently used in certain areas of the law. The two examples provided here – trademark and obscenity – introduce some of the key issues that researchers face when constructing surveys for either purpose. By now, it should be clear that some of the themes overlap. Specifically, regardless of which particular area of the law, surveys must always meet minimum methodological expectations in order to pass admissibility standards. Of particular concern to the researcher should be identifying the appropriate sample and making sure the questions are phrased in a way that is legally relevant. As mentioned in the introduction of this section, the use of surveys as evidence is common in only very specific areas of law. This section provided a close look at two such areas. However, commentators are promoting an increased use of survey research in other areas. For example, Keyes (2004) promotes the use of surveys in music copyright infringement cases, analogizing to consumer confusion. Similarly, Cramm, Hartz, and Green (2002) proposed surveying relevant physicians to establish the appropriate standard of care in medical malpractice cases. It remains an unanswered question as to whether the use of surveys in litigation will increase, but as courts become more familiar with survey research and more accepting of the use of surveys in certain areas of the law, this acceptance may generalize to other areas.

Post-Trial Interviews Even after the trial has ended and the jury renders a verdict, an attorney may call on the consultant to conduct post-trial interviews. The purpose of these interviews will be to gain an understanding of why the jury reached its verdict – what about the strategy worked and what did not work. In essence, these interviews are an opportunity for attorneys to get useful feedback on their work. Jurors evaluate the attorney’s demeanor, the effect of the witnesses, and the strength of different arguments used during the trial. Based on this information, the attorney can make effective changes for the next trial. Post-trial interviews typically occur over the phone and can widely vary in length.

Methodological Considerations for Trial Consulting Surveys Any chapter on survey research would be remiss if it did not provide at least an overview of methodological considerations. The purpose of this section is to provide just that – a brief introduction to methodological points that are particularly relevant to trial consultants. Because most surveys conducted by trial consultants are community attitude surveys, this section is written with that kind of research in mind. Nonetheless, many of the points also apply to smaller scale surveys, like prospective juror questionnaires.

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While procedures for conducting community attitude surveys may vary slightly, the process has become routine. Typical sample sizes are several hundred (Becker, 2003; Jones, 2004; Yarbrough, 2001), and most trial consultants use random sampling techniques, such as random digit dialing (Covington, 1985; Starr, 1996). Having a random sample is important; however, one should also do their best to assure that the sample represents the population of interest, which will usually be limited, at least, to jury-eligible residents of the community where the trial will take place. Obtaining a survey sample that represents the proper population is extremely important, especially in trial consulting. We return to this point later in this section. Perhaps the most important methodological decision for the trial consultant is what mode to adopt for a particular survey. Surveys conducted for the purposes of trial consulting can take a variety of formats. Today, it seems the most common mode is the interview-administered questionnaire, conducted either via telephone or in person (Becker, 2003; Covington, 1985; Jones, 2004; Lane, 1999; Yarbrough, 2001). However, consultants may also conduct paper-and-pencil instruments or group interviews (Becker, 2003). More recently, some consulting firms have begun offering the option of web-based surveys. Each mode has advantages and disadvantages. This section highlights the most important considerations when deciding which survey format to use. The considerations are grouped into three broad categories: concerns about the respondents, concerns stemming from the responses, and consultants’ concerns.

Respondent Considerations The first set of demands to weigh when selecting an appropriate survey format was issues regarding the respondents being sought, in other words, the survey sample. Two such demands will frequently confront the trial consultant: social desirability and the need for representativeness. Social Desirability Ideally, trial consultants seek to select a mode that minimizes response bias due to social desirability and maximizes the representativeness of the sample. “Social desirability bias” refers to the risk that survey respondents will alter their responses to certain questions so that the responses will reflect socially acceptable attitudes or behaviors (Fowler, 1995). In the trial consulting context, the most frequently cited example of questions that run the risk of a social desirability response bias are those that aim to identify the community sentiment toward one of the parties in the case. For example, Barber (1994) notes that respondents to paper surveys are more likely to admit bigotry than respondents to personal interviews. Similarly, Covington (1985) reported an example from her own work: A community survey

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suggested that 86% of jury-eligible citizens had an opinion about the defendant’s guilt, whereas less than 20% of the jury panel admitted having formed such an opinion. One can conceive of many categories of questions that people may be reluctant to answer honestly, including questions about racist or sexist attitudes or illegal behaviors (Sudman & Bradburn, 1982). Trial consultants can minimize this risk by adopting a mode that minimizes social desirability biases as much as possible. Selfadministered (either web-based or paper-and-pencil) instruments have the advantage of providing a sense of anonymity, which may increase the chances of obtaining accurate responses to certain personal questions (Fowler, 1995; Sudman & Bradburn, 1982). When an interviewer is present, there is a greater tendency to be more sensitive to social desirability concerns, and respondents may modify their answers in order to avoid any perceived disapproval on the part of the interviewer. While a well-trained interviewer will be skilled at creating a comfortable atmosphere and asking questions in a nonthreatening way (Sudman & Bradburn, 1982), which can improve the likelihood of getting honest responses, self-administered instruments probably offer the best guard against social desirability bias. Therefore, if the survey will include personal questions, then the consultant may want to consider using a self-administered mode. Trial consultants who are concerned about a social desirability bias should also consider incorporating some form of a social desirability scale (SDS) into their survey. SDSs seek to identify respondents who are particularly prone to provide what they perceive as socially desirable responses. The Marlowe–Crowne SDS (Crowne & Marlowe, 1960) is perhaps the most widely used, although certainly not the only instrument of this kind available. Today, several shorter versions of the SDS are available (Andrews & Meyer, 2003; Loo & Loewen, 2004; Strahan, 2007) and widely used in social psychological research (e.g., Aosved & Long, 2006; Thompson & Phua, 2005; Tyer-Viola, 2007; Wade & Walsh, 2008). Representativeness Obtaining a representative survey sample is a crucial task for any trial consultant. The ultimate goal of conducting a survey of a selected sample is to draw inferences about the population as a whole. To the extent that the sample represents the population well, these inferences are valid. To the extent that there are discrepancies between the sample and the population, the inferences become questionable. As a rule, the larger the sample, the more representative it is. A sample of 10 from a population of 100 is not as representative as a sample of 99 out of the same population, because more of the population is represented in the larger sample. In many cases, randomly sampling a proportion of all adults in the community may do a decent job of obtaining a representative sample that accurately represents its population. However, if the trial consultant is particularly interested in measuring the views of certain demographic groups, then he or she should consider stratifying

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the sample by race, sex, or other demographic characteristics of interest to increase the sample size for each of those subgroups. One important factor that impacts the representativeness of the information collected from a survey is the obtained response rate, that is, the percentage of sampled persons who provide responses to the questionnaire. Lower response rates run a greater risk that respondents with certain characteristics will not be as fully represented had a higher response rate been obtained. The mode of the community survey can strongly influence the response rate in that self-administered questionnaires via conventional mail or the web will usually yield lower response rates compared to interviewer-administered questionnaires, whether by phone or face-toface (Lozar Manfreda, Bosnjak, Berzelak, Haas, & Vehovar, 2008). When considering the choice between conventional mail or web-based surveys, trial consultants must be aware that a web-based survey runs the risk that the sample will under-include respondents with certain characteristics, while over-including respondents with other characteristics. People who frequently use the internet tend to be younger, more educated, and wealthier than those who do not (Hargittai, 2008; Lenhart, 2000). Therefore, results of a web-based survey especially run the risk of not being as representative of the community in comparison to other modes. This risk is minimized when the identification of persons in the sample for a web-based questionnaire is based on methods, such as random-digit dialing and free-access to the internet that are implemented with the intention of overcoming problems associated with coverage and response rates (Fricker, 2008).

Response Considerations In addition to respondent considerations, trial consultants must also weigh response considerations when selecting a survey mode. Response considerations are expectations about the content or format of the questions and answers themselves. Sometimes content requirements restrict the options for the survey mode. For example, if a survey must include visual information, then the consultant must adopt a format that allows participants to see this visual information. In complex cases, attorneys may want to present information graphically. In criminal cases, attorneys may want to present photographs. Survey research can test reactions to different methods of presentation (Becker, 2003; Jones, 2004). To be an effective evaluation tool, the method of presentation used in the survey should mirror the method of presentation the attorneys plan to use at trial. An advantage of computer-assisted questionnaires, either web-based self-administered or face-to-face interviewer-administered, is that they can be used to test advanced methods of presentation, like PowerPoint slides. On the other hand, if the attorney is planning to show black-and-white photographs or simple graphs or tables, then displaying this in a paper-and-pencil format may be appropriate. Clearly, telephone interviewer-administered surveys are the least conducive to this type of work.

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Another response consideration is item-response, or answer, formats. Any administration mode will facilitate the use of questions that respondents answer with a closed-format, such as a Likert-type scale. If the attorney is seeking a richer level of information, then open-ended formats might be preferred. However, in selfadministered instruments, respondents tend to leave open-ended questions unanswered or answer them superficially (Sudman & Bradburn, 1982). Thus, interviews may be preferred when open-ended questions are used, as a skilled and well-trained interviewer can obtain a more detailed response by following up with probe questions, as necessary. In addition, well-trained interviewers are also more likely to obtain entirely completed surveys. That is, a skilled interviewer can motivate respondents to participate in the survey and to continue their participation throughout the interview. In contrast, there is no similar human element to motivate respondents to complete and return a self-administered questionnaire. While interview-administered surveys might present advantages in terms of presentation options and completion rates, trial consultants must balance these advantages against the convenience of self-administered surveys. With paper-andpencil or web surveys, participants are able to complete the instruments at their own pace, wherever and whenever they prefer. This is not true for either telephone or face-to-face questionnaires. And, the consultant can compensate for some of the disadvantages to self-administered surveys by facilitating both intrinsic and extrinsic motivation to complete the survey. Intrinsically, clean formats with ­graphics that notify respondents about how much of the survey has been completed and move them quickly and easily through skip patterns have been argued to increase the likelihood of completion. Extrinsically, the risk of under-response by self-administered surveys can be overcome by offering participants incentives, like monetary compensation.

Consultant Considerations The final set of considerations in selecting the best survey format concerns the resources available to the consultant. First, trial consultants must work within the pace of the case itself. The timing of the legal process will necessitate that the trial consultant complete certain tasks within a specific amount of time, often a quite narrow one. Therefore, the consultant is often forced to select a mode that can be administered quickly. Second, the consultant is limited by the amount of resources available, including funding, technology and equipment, and space needs. Self-administered paper-and-pencil surveys are generally the least costly to conduct. In terms of resources, self-administered instruments do not require the cost and time of hiring and training interviewers, not to mention the time taken to conduct the individual interviews. However, it is worth noting that consultants could conduct interviewer-administered surveys in ways that minimize data collection and data entry costs. Specifically, consultants can conduct interviewer-administered

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surveys, both face-to-face and via telephone, with the use of a computer, which means that researchers enter the data directly into a database as the respondent answers the questions. Similarly, web-based surveys save the expenses associated with data entry, because the data automatically flows into a database when the respondent submits answers to the questions. Depending on how quickly participants respond to recruitment efforts, web-based surveys may also have the advantage of speedier data collection. The expenses associated with programming the website may outweigh these advantages. However, these days, a number of services exist to provide easy, quick, and fairly cheap mechanisms for creating basic webbased surveys. In the end, the survey mode that a consultant selects will likely reflect a balancing of the available resources and the attorney’s objectives. Interviewer-administered questionnaires usually involve more financial resources in comparison to selfadministered instruments. Self-administered surveys or computer-assisted face-toface interviews would be most appropriate if the goal is to gauge reactions to visual presentations of information. If resources are not a problem, and the attorney is hoping to gather detailed responses to hone case strategy or prepare for jury selection, then an interviewer-administered questionnaire might be the most useful tool.

Conclusion Trial consultants rely on survey research to provide a wide range of services. The purpose of this chapter was to review the main contexts in which consultants use surveys and to provide some general methodological and legal background material. Consultants may need to use surveys at any point in the life of a case, to aid in the development of pretrial and trial strategy, to present as evidence, and even posttrial. Generally speaking, all of the qualifications that make a survey scientifically sound for academic research will also make the survey sound in the trial consulting domain. However, the trial consultant will need to go beyond building a strong research instrument to accommodate the realities of the real world and the law. This means the consultant should be aware of standards of admissibility, when applicable, as well as the treatment of survey research in general in a particular jurisdiction. In as much as this chapter discussed survey methodology and standards of ­evidence, it was only an introduction. The authors attempted to provide a general discussion of key methodological considerations, and overview of relevant legal considerations. For readers interested in reading more on survey methodology in general or the use of surveys as evidence, a list of recommended readings appears below. Acknowledgments  The authors thank Mario Callegaro, Ph.D. for his constructive comments during the preparation of this chapter.

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Recommended Readings Becker, S. J. (1991). Public opinion polls and surveys as evidence: Suggestions for resolving confusing and conflicting standards governing weight and admissibility. Oregon Law Review, 70, 463–522. Converse, J. M., & Presser, S. (1986). Survey questions: Handcrafting the standardized questionnaire. Newbury Park, CA: Sage Publications. Diamond, Shari S. (2000). Reference guide on survey research. In Federal Judicial Center, Reference manual on scientific evidence (2nd ed., pp. 229–276). Retrieved August 4, 2005, from http://www.fjc.gov/public/pdf.nsf/lookup/sciman04.pdf/$file/sciman04.pdf. Fowler, F. J. (1995). Improving survey questions: Design and evaluation. Thousand Oaks, CA: Sage Publications. Smith, K. H. (1993). External validity: Representativeness and projectability in the probative value of sample surveys. Wayne Law Review, 39, 1433–1505. Sudman, S. & Bradburn, N. M. (1982). Asking questions: A practical guide to questionnaire design. San Francisco: Jossey-Bass.

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Sudman, S., & Bradburn, N. M. (1982). Asking questions: A practical guide to questionnaire design. San Francisco: Jossey-Bass. Thompson, E., & Phua, F. (2005). Reliability among senior managers of the Marlowe-Crowne short-form social desirability scale. Journal of Business and Psychology, 19(4), 541–554. Thornburg, R. H. (2005). Trademark survey evidence: Review of current trends in the ninth circuit. Santa Clara Computer & High Technology Law Journal, 21, 715–743. Toro v. Norfolk, 416 S.E.2d 29 (Va. Ct. App. 1992). Trahan v. Phoenix Ins. Co., 200 So.2d 118 (La. Ct. App. 1st Cir. 1967). Tyer-Viola, L. (2007). Obstetric nurses’ attitudes and nursing care intentions regarding care of HIV-positive pregnant women. Journal of Obstetric, Gynecologic, & Neonatal Nursing: Clinical Scholarship for the Care of Women, Childbearing Families, & Newborns, 36(5), 398–409. Tyler, T., & Jost, J. (2007). Psychology and the law: Reconciling normative and descriptive accounts of social justice and system legitimacy. In A. W. Kruglanski & E. T. Higgins (Eds.), Social psychology: Handbook of basic principles (2nd ed., pp. 807–825). New York: Guilford Press. United States v. Pryba, 678 F.Supp. 1225 (E.D. Va. 1988). Wade, T., & Walsh, H. (2008). Does the Big-5 relate to jealousy, or infidelity reactions? Journal of Social, Evolutionary, and Cultural Psychology, 2(3), 133–143. Walker, L. (2002). A model plan to resolve federal class action cases by jury trial. Virginia Law Review, 88, 405–445. Yarbrough, S. L. (2001). The jury consultant – friend or foe of justice? Southern Methodist University Law Review, 54, 1885–1900. Zippo Manufacturing Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1972).

Chapter 6

Misconceptions About Statistics and Statistical Evidence Jonathan J. Koehler

Thanks in large part to advances in computing and information technology, statistics are everywhere. Whether the information concerns business, health, politics, sports, or nearly anything else, it is likely to appear in statistical form. The front page of the country’s highest circulation daily newspaper (USA Today) is littered with descriptive statistics and graphical depictions of those statistics. The star of a popular prime-time television show called Numbers solves fictional legal cases each week through the innovative use of statistics and statistical reasoning. And so, it is no surprise that statistics and statistical arguments find their way into the American courtroom at an unprecedented rate. Fienberg (1989) reported “dramatic growth” in the use of statistical evidence from the 1960s through the 1980s. He noted that the terms “statistic” or “statistical” appeared in thousands of reported district court opinions (p. 7). I performed a Westlaw search on these terms and found a 56% increase in the use of these terms in the Federal Cases database from 1990 to 2004. I also found that the phrase “statistical analysis” appeared 94% more often in 2004 than in 1990; “regression analysis” appeared 95% more often. In most cases, expert witnesses are responsible for introducing statistical evidence in the courtroom. Many of these experts have graduate-level training in quantitative fields and speak easily about correlation coefficients, p values, regression coefficients, and random match probabilities. However, there is scant reason to believe that fact finders can interpret this information properly. The courts do not screen jurors for their quantitative reasoning skills prior to seating them on jury panels in cases in which key evidence is statistical or probabilistic. Nor do attorneys, judges, or consultants teach them how to think about beta coefficients and likelihood ratios, once this evidence is presented. When John Allen Paulos (1988) speaks of the crippling “innumeracy” (or mathematical illiteracy) that permeates American culture, the legal profession should take special notice. Paulos argues persuasively that otherwise intelligent laymen are confused by numbers, probabilities, and elementary

J.J. Koehler (*) Northwestern University School of Law, Chicago, IL 60611-3069, USA e-mail: [email protected]

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statistical principles. If true – and the evidence suggests that it is – then jurors may misweigh the statistical evidence they hear and render unjust verdicts. Trial consultants need to be aware of the documented problems that jurors and others have been working with statistical evidence and arguments (for reviews, see Arkes, Connolly, & Hammond, 2000; Kahneman, Slovic, & Tversky, 1982; Saks & Kidd, 1980–1981; Thompson & Schumann, 1987). They also should be prepared to provide the conceptual background information to attorneys, judges, and jurors that will help them understand and reason with case-specific quantitative evidence. This chapter identifies nine misconceptions surrounding statistical evidence and arguments at trial. These are not the only misconceptions, but they are important for two reasons. First, each misconception arises with some regularity in trials, particularly criminal trials. Second, many talented judges, attorneys, and experts will insist that some of these misconceptions are not misconceptions at all. Such insistence should not be regarded as mere difference of opinion with the perspective offered here. Instead, it is a testament to the difficulty of reasoning with and about statistics.

Misconception #1: Jurors Overweigh Statistics A famous law review paper by Harvard Law Professor Lawrence Tribe argued that statistical evidence has no place in the courtroom because jurors will overweigh this type of evidence. He wrote: The problem of the overpowering number, that one hard piece of information, is that it may dwarf all efforts to put it into perspective with more impressionistic sorts of evidence. . . . The syndrome is a familiar one: If you can’t count it, it doesn’t exist. . . . [E]ven the most sophisticated user is subject to an overwhelming temptation to feed his pet the food it can most comfortably digest. Readily quantifiable facts are easier to process–and hence more likely to be recognized and then reflected in the outcome–than are factors that resist ready quantification (Tribe, 1971, pp. 1360–1362).

At first blush, the argument seems persuasive. When confronted with, say, a 0.01% chance that semen found in a rape victim would match an innocent suspect by sheer chance, it would seem that jurors might not give much weight less to quantifiable evidence that the defendant might offer in support of his innocence. However, a large body of literature suggests that the opposite is true (Kaye & Koehler, 1991; Schklar & Diamond, 1999; Thompson, 1989). Far from being blinded and hoodwinked by statistical evidence, studies indicate that jurors and other decision makers attach too little weight to this evidence. In my own mock jury studies, I found that about half of jurors are unwilling to vote for conviction in the face of a DNA match, even when they are told that the chances that the match is merely coincidental is less than one in a billion (see e.g., Koehler, Chia, & Lindsey, 1995). Explanations for the relative underweighting of statistics include their complexity, their abstractness (Nisbett & Ross, 1980), their causal insufficiency (Bar-Hillel, 1980), and their tendency to speak more to generalities than to specific instances. Regardless of the

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sufficiency of these explanations, there is no evidence that people overweigh statistical evidence when confronted with evidence of a more qualitative sort such as eyewitness testimony or alibi evidence.

Misconception #2: Small Samples Are Not Informative Suppose that the defendant in a medical malpractice case introduces a study in support of his decision to treat the plaintiff with drug B rather than drug A. In this study, the researcher assigned drugs A and B at random to each of eight patients. The dependent measure of interest was the amount of time it takes for the ­hospital to discharge each patient. Hypothetical data in Table 6.1 show that the four patients who received drug A were discharged in an average of 3 days and the four patients who received drug B were discharged in an average of 6½ days. A statistical test, called an independent samples t-test, indicates that this difference is ­statistically significant (t = 4.58, d.f. = 6, p < .01). On cross-examination, the plaintiff argues that the study is worthless because of the small sample size. Does the plaintiff have a point? Not really. If the study is well designed (e.g., double-blind, random assignment to treatment conditions, etc.), the fact that the treatment groups differed significantly on the dependent variable in a small study speaks to the probable magnitude of the difference between the two treatments. On the contrary, if a small, well-designed study did not reveal significant differences between the two treatment groups, the study would not deserve much attention. The reason is that a small study may not have sufficient power to detect differences between treatment groups that actually are different. A related point of confusion is whether the results of a sample of, say, 1,000 respondents in a survey can adequately represent the views of a broader population of millions of people. Counterintuitive though it may be, one need not survey a large proportion of a population to represent it. The reliability of a survey (often described as a margin of error) has nothing to do with the size of the population that the survey seeks to describe. A more critical consideration is the extent to which members of the sample were selected at random from the population of interest.

Table 6.1  Hypothetical data: amount of time until patient is discharged

Patient 1 2 3 4 5 6 7 8

Drug received A A A A A B B B

Days to discharge 2 3 3 4 5 6 7 8

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Trial consultants should be prepared to discuss this issue when presenting survey data to guard against the false intuition that a sample cannot predict the views of a much larger population.

Misconception #3: p < .05 = Important; p >.05 = Unimportant Suppose that a grand jury that is comprised of a list of registered voters in a community indicts a defendant. However, the defendant argues that there was discrimination in the selection of the grand jurors. As proof, he offers uncontroverted evidence that the proportion of registered minority voters in the community is 10%, but that there were no minority grand jurors on the broader panel from which his grand jury was chosen. Holding aside issues of intent, is this compelling proof of discrimination? The answer may well turn on whether the difference between 10 and 0% is “statistically significant.” The phrase “statistically significant” is frequently uttered, but the word “significant” has a specialized meaning that does not correspond with what jurors and other laymen may associate with it. Many and perhaps most laymen would think that the exclusion of minority voters from a grand jury panel is a significant indicator of discrimination – provided that the grand jury panel was reasonably large. But how large? If the panel included just ten people, then it would only be mildly surprising if there were no minorities. If the panel included 1,000 people, then the lack of minorities would be extremely surprising. This is where statistical analyses – and determinations of statistical significance – come in. The difference between the observed (0%) and expected (10%) proportion of minorities on the grand jury panel is statistically significant if the probability of observing so few minorities by chance alone – the so-called “p value” – is less than 5%. If the panel included just ten people, the p value would be much greater than 5%, a result that falls short of statistical significance. This means that the lack of minorities on this panel is not a strong evidence of discrimination. Statistical novices often assume that a nonsignificant p value proves that the observed disparity arose by chance alone. Some will think that the p value identifies the probability that there was no discrimination and that 1 − p is the probability of discrimination. These interpretations are not correct. In our example, the p value identifies the probability that a disparity as large (or larger) than that observed would occur if, in fact, the selection of grand jurors was made at random (i.e., without regard for minority status). This probability, P(No Minorities | No Discrimination), is helpful for determining whether discrimination occurred, but it does not identify the probability of interest, which is P(No Discrimination | No Minorities). This point receives more consideration in Misconception #7. Statistical novices also mistakenly assume that statistically significant differences are practically important and that statistically insignificant differences are practically unimportant. However, it is important to distinguish between these two types of significance. Sample size plays a central role in determining whether a difference is statistically significant. Large sample sizes are more likely to yield

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statistically significant differences. But sample size plays no role at all in determining whether a difference is practically significant. A salary disparity of $1,000 between two groups of employees may not be statistically significant, but this does not mean that the $1,000 difference has no practical significance. Similarly, a statistical analysis of the chip speed of two personal computers may show that chip A is significantly faster than chip B, but this difference may not have any noticeable or practical significance to the user. Although statistics alone cannot tell us whether a significant effect is practically important or not, an “effect size” analysis can provide insight into whether a statistically significant effect is large or small. Suppose, for example, that a researcher testifies that patients in a randomized study who took drug A had significantly fewer heart attacks than patients who took a placebo (p < .05). Whereas the p-value provides some reason to believe that the observed difference is unlikely to be the result of chance alone, an effect size analysis – such as given by Cohen’s d statistic – can tell us something about the magnitude of the observed drug effect. An effect size is the standardized difference between two groups. It is computed as the difference between the mean values of two groups divided by the standard deviation. As a rough rule of thumb, effects sizes of 0.2 are small, 0.5 are medium, and 0.8 are large (Cohen, 1988). In sum, trial consultants should have a thorough understanding of what p values are and what they are not. They should also be prepared to educate the courts on the role that sample size places in the production of p values. Finally, consultants should consider educating the courts about subtler measures of the importance of statistical results such as effect sizes.

Misconception #4: Correlation Implies Causation One of the takeaway principles in Statistics 101 is “correlation does not imply causation.” This means that if two variables are correlated or associated with one another, one may not necessarily conclude that one of the variables caused the other. A lurking third variable may well be the causal agent. There is a strong correlation between amount of ice cream consumed at the beach and the number of drownings. However, this does not mean that the ice cream consumption caused the drownings. The weather is a more likely causal agent for changes in both variables. Although the idea that correlation does not imply causation is well known, people rely on correlation as a primary indicator of causality (Einhorn & Hogarth, 1986). When the causal connection is intuitively plausible, people may equate degree of correlation with degree of causal strength. Public health information is a prime example. Every week seems to bring the results of yet another correlational study that finds an association between a plausible-sounding cause (e.g., diet, stress level, temperament, etc.) and an important effect (e.g., illness, longevity, etc.). Nevertheless, because most of these studies are observational rather than experimental (in which treatment levels are assigned at random), the correlation provides scant grounds for the causal claim.

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One way to make jurors think twice before inferring causality from causal claims is to give them a reason to believe that a third (or fourth or fifth) variable may be the lurking causal force. This is particularly important in cases involving multiple regression analyses. Multiple regression analyses are useful for measuring the amount of variability in an outcome variable (e.g., cancer) that is explained or predicted by variability in two or more predictor variables (e.g., family history, exposure to toxins, etc.). Although consultants routinely offer such analyses in legal cases to establish causal relationships, regression analysis only identifies correlations among variables (controlling for the influence of other variables in the regression model) that may or may not have causal significance. Moreover, some correlations that are statistically significant in one regression model may become insignificant as predictor variables are added to or subtracted from the model. For example, a strong association between the predictor variable “age” and the outcome variable “salary” might disappear once the researcher adds the predictor variable “years of job experience” into the model. Consequently, it would be hasty to conclude that significant associations identified by a regression model demonstrate causal relationships. This is not to say that regression analyses cannot provide any relevant information about casual claims. To the extent that (a) the many assumptions that underlie multiple regression models are met, (b) the analyses control for all plausible lurking variables that could explain a significant association, and (c) the data are replicated by other high-quality studies, a causal inference may be more reasonable. Still, such an inference is just: an inference that reaches beyond the ­correlational data.

Misconception #5: Base Rates Don’t Matter One of the most important and pervasive misconceptions about probabilistic evidence is that background probabilities – or base rates – are irrelevant for casespecific judgments and decisions. Consider, for example, a person who wants to estimate the chance that a randomly selected couple will get divorced. On one hand, the fact that 40–50% of US marriages end in divorce indicates that there is a substantial chance that the selected couple will divorce. On the other hand, those who know the couple are likely to assign little, if any, weight to the base rate. Instead, they are likely to focus on such individuating features of the couple such as whether they share common interests, appear to be in love, are committed to religious values, etc. Although such individuating features might be informative, the base rate also provides relevant information. After all, if the divorce rate in a subpopulation is 99%, then 99 out of 100 randomly selected couples will, on average, get divorced. A random couple in this subpopulation that shares many interests, appears to be in love, and practices a religion that does not tolerate divorce is still quite likely to be divorced, though this probability may be less than 99%. The same principle applies to probability estimates in the legal domain. If most heroin in the

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USA is illegally imported, then this fact is relevant for estimating the chance that the drug dealer’s heroin has been illegally imported.1 Though base-rate evidence sometimes “feels” different from other types of evidence, it is no more or less inherently probative than individuating or direct evidence. An 80% probability of guilt based entirely on a base rate carries with it the same 20% chance of a false conviction as an 80% probability of guilt based on, say, the somewhat unreliable testimony of an eyewitness. Nevertheless, higher courts frequently reject general base-rate evidence in cases that should include more individuating sorts of evidence. For example, the Wyoming Supreme Court ruled that testimony that “eighty to eighty-five percent of child sexual abuse is committed by a close relative of the child” was irrelevant in a sexual abuse case. The court wrote, “It is difficult, however, to understand how statistical information would assist a trier of fact in reaching a determination as to guilt in an individual case.”2 However, when base rates are closely linked to the particulars of a case, courts may be more willing to admit them. For example, an Ohio appellate court saw nothing untoward about admitting the base rate for multiple gunshot wound suicides (0.4%) when it was offered for the purpose of rebutting the defense’s theory that the decedent’s gunshot wounds resulted from a suicide (State v. Sage, 1983). Base-rate evidence proponents are likely to face resistance in the courts. However, parties that wish to introduce such an evidence may be able to do so if they can convince courts that the evidence could rebut a claim or is otherwise probative in the instant case.3

Misconception #6: A Small Match Probability Implies Source Identification In many television courtroom dramas, there comes a time when an expert or attorney reveals that the blood found on the murder weapon belongs to Jones, or the fiber recovered from the victim’s clothing came from the carpet in Smith’s bedroom. At least in television dramas, attorneys present such evidence as irrefutable, and it often seals a suspect’s fate. In reality, forensic science evidence is probabilistic at best. Courtroom claims notwithstanding, forensic scientists cannot establish source identity.  Relevant evidence may be excluded in court if the trial judge determines that its potential for unfairly prejudicing fact finders exceeds its probative value. Because base-rate evidence is often perceived to be prejudicial, judges must understand its probative value before ruling on its admissibility. 2  Id. at 64. 3  Koehler (2002) identifies a host of other factors that predict when courts are more and less likely to find base rates relevant. These include cases that have a statistical case structure, and those in which the base rates (a) rebut a “chance” hypothesis, (b) are derived from sufficiently refined reference classes, or (c) are offered when individuating proof is in short supply due to the nature of the dispute. 1

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They cannot establish that a particular object created a particular marking. Instead, forensic scientists who have access to large, well-constructed databases can estimate the frequency with which people or objects that have various characteristics exist in the population. When forensic scientists find a “match” between, say, genetic material left at a crime scene and a set of genetic markers from a suspect, they can help fact finders understand the significance of that match by estimating the frequency with which such matches would occur in the population. If the match is relatively common (e.g., if 50% of people would match), then the evidence has little probative value. If the match is rare, then the evidence has much more probative value. If the match is extremely rare – e.g., if a set of genetic markers has an estimated frequency less than one in every 6.5 billion people (the approximate number of people on the planet) – the forensic scientist will often assert that the matchee is the source of the genetic material. On first consideration, such an assertion may seem reasonable. After all, if the match is rarer than the number of people on earth (e.g., 1 in 10 billion), there could not be a second person who matches as well, right? Wrong. The probability that at least one of the untested people in a population of 6.5 billion will match a set of genetic markers that occurs just one time in 10 billion is about 79%.4 The point is that even very small match probabilities cannot establish that this bullet came from that gun, that this fiber came from that carpet, or even that this fingerprint came from that suspect. On the contrary, the fact that one or more guns, carpets, or fingers may share a rare profile does not mean that the match lacks probative force. Quite the contrary, even a profile that occurs hundreds of times in a large population may provide compelling proof that a particular suspect is the source of the genetic material. Suppose that, prior to DNA testing, police believe that the chance that Mr. Patel is the source of a bloodstain recovered from the scene of a violent crime is only about one in one thousand (0.1%). Now, suppose that a DNA test shows that Mr. Patel is one of about 500 people in the USA whose DNA profile matches the profile of the bloodstain. Assuming that there are 300,000,000 people in the USA, a mathematical formula known as Bayes’ theorem shows that the police should now believe that the chance that Mr. Patel is the source of the bloodstain is greater than 99%.5 My point is that even there are hundreds of others whose DNA profile matches the bloodstain DNA, the fact that Mr. Patel did match shifts the subjective probability that he is the source of that stain from 0.1% (prior to the DNA test) to more than 99% (after the DNA test).

4

æ 6, 499, 999, 999 ö 10,000,000,000 è 6, 500, 000, 000 ÷ø

P (at least one match) = 1 - P( no matches ) = 1 - ç

= 1 - 0.2145 = 0.7855.  The Bayesian computation, in odds form, for these data is as follows: 0.001 1 1 100, 000, 000 100, 000, 000 599.40 X = X = = . 0.999 0.00000167 999 167 166,833 1 In words, the chances are about 599:1 (i.e., 99.83%) that Mr. Patel is the source of the recovered bloodstain. Importantly, this computation assumes a zero error rate. 5

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Thus, a DNA match – or any forensic match for that matter (e.g., toolmark, fingerprint, shoeprint, etc.) – may be highly source probative even when the characteristic features are not unique (or even close to being unique) in the general population.

Misconception #7: The Match Probability Identifies the Chance of Innocence In many criminal cases, the police identify a genetic match between a suspect and trace evidence recovered from the crime scene. An estimate of the frequency with which the genetic profile occurs in one or more populations commonly accompanies the reported match. In the language of conditional probability, this frequency is approximately equal to the probability of finding a match with a person who is not the source of the trace evidence, i.e., P (Match | Source) . This probability is easily confused with its inverse, P (| Source | Match) , which is of much greater interest to jurors. This mean that jurors do not really want to know how likely a match would be if someone were not the source of the blood stains. The more central question for them is “how likely is it that the person who matched those blood stains is (or is not) the source?” However, research shows that experts, attorneys, judges, and jurors alike confuse P (| Source | Match) with P (Match | Source) and thereby commit the “source probability error” (Koehler, 1993). A more extreme form of this “inverse error” (Kaye & Koehler, 1991) is the “prosecutor’s fallacy” (Thompson & Schumann, 1987). Those who commit this error treat the match probability as a statement about the probability that the suspect is innocent. Although the match probability provides information about the strength of the forensic science match (up to a point), it does not translate into a probability that describes the chance that a defendant is (or is not) the source of the trace evidence, or the chance that he is (or is not) guilty of the crime. More information than a forensic scientist can supply is needed to make these assessments. An example clarifies the point. Suppose that a defendant matches genetic material recovered from a rape. Suppose further that the match probability is 1 in 10,000. This means that the approximate probability that a man who is not the rapist (assuming that the material was left by the rapist) will match by sheer coincidence is about 1 in 10,000. In a large city, many men will match a 1 in 10,000 genetic profile. It would, therefore, be ludicrous to suggest that each of these matching men has only a 1 in 10,000 chance of not being the rapist because this implies that each has a 9,999 in 10,000 (i.e., 99.99%) chance to be the rapist. It would be more accurate to say that, based on the genetic evidence alone, each matchee has only a 1/n chance to be the rapist where n is the estimated number of matchees. This error detailed above is so subtle and tempting that the entire field of paternity testing appears to have fallen victim to it (Kaye, 1989). In paternity testing, forensic scientists typically identify the probability that a man who is not the father of a particular child would have a genetic profile that is consistent with paternity. In other words, the test identifies P (Match | Father) . In court, however, the forensic

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scientists commonly claim that the test identifies P (Father | Match) . This is the inverse error: the conditional probability P(Father | Match) cannot be identified from a paternity test, and it is certainly not the same as P (Match | Father) . However, once this error is made, many experts then subtract this value from one to obtain P (Father | Match) . This latter probability describes the chance that a person whose genetic profile is consistent with paternity is, in fact, the father of the child. In other words, it is the central issue that jurors must decide in a paternity case, and forensic scientists who testify about it have committed a blunder that effectively usurps the function of the jury. Consultants should familiarize themselves with these inverse errors and, at a general level, be prepared to explain why the conditional probability P(A | B) is different from P(B | A).

Misconception #8: Error Rates: Nice to Have But Not Essential When DNA evidence burst into US courtrooms in the late 1980s and early 1990s, jurors were exposed to match probability estimates on the order of one in millions, billions, and trillions. These numbers had defense attorneys scrambling for cover. Maybe the computations were wrong. Maybe the statistical databases were incomplete. Maybe the experts were unqualified. Or maybe the analyst made a mistake and called a match where there was not one. This last possibility is critical: if the chance that the analyst made a mistake is several orders of magnitude larger than the match probability (e.g., 0.001 vs. 0.00001), then the diagnostic value of the match probability turns upon the chance that the analyst made a mistake, that is, if the chance that the analyst called match on a nonmatch is 0.001, and the chance that the match is merely coincidental is 0.000001, then the 0.001 value rather than the 0.000001 value is the key to understanding the value of the match report. In many cases involving matching evidence, jurors are provided with very small match probabilities but they are not provided with probabilities that will help them identify key error rates, such as the rate at which nonmatches are identified as matches. As a result, they are in a poor position to assess the probative strength of the reported match evidence. When appellate courts have considered this problem, they generally conclude that failure to provide error rate data is insufficient grounds for overturning a conviction, even if the match evidence played an important role in securing that conviction. As one California court reasoned: We believe the issue of whether laboratory error rates should have been presented to the Jury in addition to the profile frequency is not one that goes to the very integrity or reliability of the DNA results.…Whether calculation and presentation of laboratory error rates could have improved the FBI’s scientific procedure went to the weight of the evidence, not its admissibility (People v. Pizarro, 2002).

Such reasoning poses a challenge to trial consultants and others who wish to help courts make informed judgments about scientific information. Courts need help

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understanding that the absence of error rate guidance in cases that include very small match probabilities leaves jurors with a misleading perspective on the importance of the match evidence. In such cases, error rates provide an upper boundary on the probative value of a reported match. Even among judges who understand this point, there is still the problem of persuading them that general error rate data are sufficiently relevant to the instant case. Though courts have been slow to appreciate the significance of error rates in cases involving DNA evidence, recent attacks on the scientific foundation of fingerprint analysis have convinced at least a few judges to take a closer look at the error rate issue in this domain. For example, one trial judge rejected a prosecution expert’s claim that the fingerprint methodology (known as ACE-V) is infallible stating that “[a]n error rate, or lack thereof, must be demonstrated by reliable scientific studies, not by assumption” (State v. Rose, 2007, p. 28). This judge ultimately excluded the State’s fingerprint evidence altogether largely because the State failed to produce evidence of “impartial scientific testing” that established an error rate (p. 31).

Misconception #9: Nonunique Matches Are Worthless Thompson and Schumann (1987) coined the phrase “the Defense Attorney Fallacy” to describe the erroneous belief that nonunique match evidence is not probative. Of course, since match evidence is nearly always nonunique, the Defense Attorney Fallacy amounts to a claim that match evidence is nearly always worthless. Obviously, this is not true. Still, there is something seductive about this fallacy. Suppose, for example, that a partial DNA profile from an evidentiary sample occurs with a frequency of 1 in 1,000. Suppose further that the suspect population includes 30,000 adult males in a city. In this scenario, the Defense Attorney Fallacy occurs if one argues that a DNA match on a particular suspect is worthless because approximately 30 adult males in the city would match. This argument is fallacious because it fails to distinguish between probative evidence and conclusive evidence. Nonunique evidence may be highly probative if the size of the inclusion group is small relative to that of the exclusion group. In the example above, the partial DNA match is highly probative because 99.9% of people who were not the source would have been excluded, yet the defendant happens to be a member of the very small group (n = 30) of nonexcluded people. Holding aside error rate considerations, the discovery of this match means that a juror should believe that the defendant is now about 1,000 times more likely to be the source of the DNA evidence than he was prior to the discovery of the match. Certainly, this evidence is probative. Studies show that significant minorities of jurors are susceptible to the Defense Attorney Fallacy (Nance & Morris, 2005; Thompson & Schumann, 1987), particularly when a defense attorney explicitly offers it as an argument. Hans, Kaye, Dann, Farley, and Albertson (2006) found that fully 40% of jurors agreed with the statement “The mtDNA evidence in this case is completely irrelevant because a substantial number of other people could also be the source of the hairs” (p. 17). At the

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same time, many jurors in this study regarded the DNA evidence to be completely persuasive, including a smaller number who may have fallen victim to the Prosecutor’s Fallacy. Perhaps the best explanation for why people commit Defense Attorney and Prosecutor’s Fallacies is the simplest one: people are easily confused and ­misled by statistical evidence, particularly when the relevant probability values are very small.

Conclusion As the law increasingly leans on scientific evidence to solve tough cases, the ability to reason with quantitative data becomes increasingly important to the administration of justice. Yet, the unfortunate reality is that attorneys, judges, jurors, and other legal actors have limited knowledge of how to reason with quantitative evidence. Trial consultants can do a great service to our legal system by studying the problems that jurors and others are likely to have with scientific and statistical evidence, and by sharing their quantitative expertise with various legal actors. For example, they can help jurors understand the significance of very low match probabilities, and they can help attorneys zero in on the weaknesses in the statistical arguments of opposing parties. They may also need to find ways to get through to those who dismiss statistics and statistical arguments in their entirety because they simply do not trust statistics. These skeptics pose a serious challenge to the trial consultant because they are unlikely to be moved by the subtleties of the statistical misconceptions and corrective points discussed above. Instead, trial consultants may need to persuade the skeptics that truth can become the casualty when decision makers dismiss any particular type of evidence or argument. Toward this end, I recommend that the trial consultant quote the late, great statistician Fred Mosteller: “Sure, it’s easy to lie with statistics – but it’s easier to lie without them.”

References Arkes, H. R., Connolly, T., & Hammond, K. R. (Eds.). (2000). Judgment and decision making: An interdisciplinary reader. Cambridge: Cambridge University Press. Bar-Hillel, M. (1980). The base-rate fallacy in probability judgments. Acta Psychologica, 44, 211–233. Cohen, J. (1988). Statistical power analysis for the behavioral sciences (2nd ed.). Hillsdale: Erlbaum. Einhorn, H. J., & Hogarth, R. M. (1986). Judging probable cause. Psychological Bulletin, 99, 3–19. Fienberg, S. E. (Ed.) (1989). The Evolving Role of Statistical Assessments as Evidence in the Courts. New York: Springer-Verlag. Hans, V. P., Kaye, D. H., Dann, B. M., Farley, E., & Albertson, S. (2006). Science in the jury box: Do jurors understand mtDNA evidence? Unpublished manuscript. Kahneman, D., Slovic, P., & Tversky, A. (Eds.). (1982). Judgment under uncertainty: Heuristic and biases. Cambridge: Cambridge University Press.

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Kaye, D. H. (1989). The probability of an ultimate issue: The strange cases of paternity testing. Iowa Law Review, 75, 75–109. Kaye, D. H., & Koehler, J. J. (1991). Can jurors understand probabilistic evidence? Journal of the Royal Statistical Society, Series A, 154, 75–81. Koehler, J. J. (1993). Error and exaggeration in the presentation of DNA evidence. Jurimetrics Journal, 34, 21–39. Koehler, J. J. (2002). When do courts think base rate statistics are relevant? Jurimetrics Journal, 42, 373–402. Koehler, J. J., Chia, A., & Lindsey, J. S. (1995). The random match probability (RMP) in DNA evidence: Irrelevant and prejudicial? Jurimetrics Journal, 35, 201–219. Nance, D. A., & Morris, S. B. (2005). Juror understanding of DNA evidence: An empirical assessment of presentation formats for trace evidence with a relatively small random-match probability. Journal of Legal Studies, 34, 395–443. Nisbett, R., & Ross, L. (1980). Human inference: Strategies and shortcomings of social judgment. Englewood Cliffs: Prentice-Hall. Paulos, J. A. (1988). Innumeracy: Mathematical Illiteracy and Its Consequences. New York: Hill and Wang. People v. Pizarro, 123 Cal.Rptr.2d 782, *921 to 123 Cal.Rptr.2d 782, *922. Saks, M. J., & Kidd, R. F. (1980–1981). Human information processing and adjudication: Trial by heuristics. Law and Society Review, 15, 123–160. Schklar, J., & Diamond, S. (1999). Juror reactions to DNA evidence: Errors and expectancies. Law and Human Behavior, 23, 159–184. State v. Rose, Case No. K06-054 (Md. Cir. Ct. 2007). State v. Sage, No. 82AP-983 (Ct. App. Ohio 1983). Thompson, W. C. (1989). Are juries competent to evaluate statistical evidence? Law and Contemporary Problems, 52, 9–41. Thompson, W. C., & Schumann, E. L. (1987). Interpretation of statistical evidence in criminal trials: The prosecutors’ fallacy and the defense attorney’s fallacy. Law and Human Behavior, 11, 167–187. Tribe, L. H. (1971). Trial by mathematics: Precision and ritual in the legal process. Harvard Law Review, 84, 1329–1393.

Part II

Witness Preparation and Effective Testimony

Chapter 7

The Admissibility of Expert Witness Testimony Marc W. Pearce

Introduction: Why Should Trial Consultants Study the Rules Governing the Admissibility of Expert Testimony? Often, trial consultants generate reports or opinions that are not meant to be disclosed to the court, jury, or opposing party. For example, a trial consultant might conduct mock trials or focus groups to help his or her client develop litigation strategies, and for obvious reasons, it would be unwise to share these strategies with the opposing party prior to trial. On occasion, however, clients call upon trial consultants to present their findings to the court, hoping either to persuade the judge to take action that would be helpful to the client’s position or to convince the jury to credit some aspect of the client’s case. Suppose, for instance, that a trial consultant discovers that negative publicity may have biased the pool of potential jurors against his or her client. Acting on this discovery, the client decides to file a motion to change the venue of the trial. To support this motion, the client will probably want to submit the trial consultant’s findings to the judge. The client can accomplish this by calling the trial consultant to testify at the motion hearing or by asking the trial consultant to prepare a written report for the judge’s consideration. Trial consultants can also serve their clients by helping them identify sources of weakness in the testimony that an opponent’s expert plans to offer. For example, the party opposed to the hypothetical change of venue motion discussed above may need help developing a response to the motion. This party’s own trial consultant can provide this help by preparing a report that identifies methodological flaws or weaknesses in the research that the opposing attorney has submitted in support of the change of venue motion. The litigation team can then use this report to persuade the judge to discredit that research and deny the motion. Whenever a trial consultant is called upon to present evidence to a court (as in the foregoing examples), it is very likely that she will be acting as an expert witness. Trial consultants who find themselves in this position benefit from a basic M.W. Pearce (*) University of Nebraska/Lincoln, 238 Burnett Hall, Lincoln, NE 68588, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_7, © Springer Science+Business Media, LLC 2011

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understanding of the rules and principles that govern the admissibility of expert evidence. Indeed, expert witnesses who understand these rules and principles gain clear advantages over those who do not, just as players who understand their role in a team and the rules of game are better prepared to help their team achieve its goals. Expert witnesses who have general knowledge of the applicable law can work to package their evidence in a manner that satisfies the admissibility requirements and can identify key deficiencies in the evidence submitted by opponents – and perhaps even persuade the court to reject the opponent’s expert evidence in its entirety. This chapter describes the most important rules and principles that govern the admissibility of expert testimony. It also demonstrates ways in which trial consultants can maximize the likelihood that their own research and opinions will be admitted into evidence and suggests strategies for mounting effective attacks against the expert evidence submitted by opponents. The chapter begins with an overview of the discovery rules governing expert testimony in civil and criminal cases. It then proceeds to describe the evidentiary rules and principles that most directly affect expert witnesses. It should be noted that the rules and principles discussed in this chapter are based upon current federal law; the applicable rules in state courts may differ (Koppel, 2005; Bernstein & Jackson, 2004; Stolfi, 2003). Trial consultants should not hesitate to confer with counsel to develop a familiarity with the rules and relevant court decisions in the jurisdictions where they practice. There is no substitute for good communication between trial consultants and counsel at all stages of the case, and issues pertaining to the admissibility of expert testimony ought to be a focal point of this communication.

The Discovery Rules Even the most well-founded expert opinions may not be received by the court if the party offering those opinions fails to comply with the applicable discovery rules. Discovery rules are procedural rules that govern the process of gathering and exchanging information for use in litigation. Two federal discovery rules are of primary importance insofar as expert evidence is concerned: Federal Rule of Civil Procedure 26 and Federal Rule of Criminal Procedure 16. As their titles suggest, the Federal Rules of Civil Procedure apply in civil cases brought in federal court, while the Federal Rules of Criminal Procedure apply in federal criminal cases (Fed. R. Civ. P. 1; Fed. R. Crim. P. 1(a)(1)). These rules and their implications for expert witnesses will be discussed below.

Federal Rule of Civil Procedure 26 and the Mandatory Expert Report The “General Provisions Governing Discovery” in federal civil cases are set forth in Federal Rule of Civil Procedure Rule 26. These provisions include rules that

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require parties to a lawsuit to exchange basic information about their claims or defenses automatically – that is, without waiting for an opposing party to formally request it – in most cases. For example, Rule 26 requires a party to provide to other parties the name and, if known, the contact information for each person likely to have information that the disclosing party may use to support a claim or defense. These “mandatory disclosures,” as they are often called, serve to accelerate the exchange of information and eliminate the paperwork that would otherwise be required to request that information (Fed. R. Civ. P. 26 advisory committee notes (1993 Amendments)). A party’s mandatory disclosures must include information about its expert witnesses (Fed. R. Civ. P. 26(a)(2)). Not only must a party “disclose to other parties the identity of any witness it may use at trial” to present expert testimony, but, unless the court orders otherwise, any witness who is “retained or specially employed to provide expert testimony in the case” must provide a signed, written report that contains: • A complete statement of all opinions the witness will express and the basis and reasons for them. • The data or other information considered by the witness in forming the opinions. • Any exhibits that will be used to summarize or support the opinions. • The qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years. • A statement of the compensation to be paid for the study and testimony in the case. • A list of all other cases in which the witness has testified as an expert at trial or by deposition during the preceding 4 years. (Fed. R. Civ. P. 26(a)(2)(A)-(B)). It should be noted that not all expert witnesses are required to prepare and submit a Rule 26(a)(2)(B) report. Suppose that a fire destroyed a commercial office building, and the building’s tenant submitted a claim to its insurance company. After the insurance company refused to pay the claim, the tenant sued the insurer to enforce the policy. The insurer decided to call upon a fire inspector from the city fire department to provide expert testimony in support of the insurer’s defense that the tenant set the fire on purpose. In accordance with Rule 26(a)(2) (A), which requires parties to disclose the names of persons who may be used to present expert opinions, the insurer informed the tenant that it would use the fire inspector to present expert evidence. In addition, the insurer provided the tenant with a copy of the inspector’s official report, which he prepared in his official capacity with the city fire department. However, at trial the fire inspector testified to opinions that were not in his official report; specifically, he testified that the fire was probably set for fraudulent purposes and had the characteristics of a “fraud fire.” “The tenant objected, arguing that this testimony violates the requirement that a Rule 26 report contain a complete statement of all opinions to be expressed and the basis and reasons for them.” At first glance, the tenant’s objection may seem to be valid, because the fire inspector’s report did not contain a statement of his opinion that the fire was probably a “fraud fire.” However, assuming that the fire inspector was not retained or employed by the insurer as an

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expert witness, he is not subject to the Rule 26(a)(2)(B) report requirement even though he is providing expert testimony that favors the insurer. In this example, the fire inspector’s report was not a Rule 26(a)(2)(B) report, but an official report prepared in the course of his duties as fire inspector (Brandt Distributing Co., Inc. v. Federal Insurance Co., 2001; Shinault v. Sears Logistic Services, 2004; Fed. R. Civ. P. 26 advisory committee notes (1993 Amendments)). In other words, Rule 26(a)(2)(B) does not apply in this situation because the fire inspector was not an expert witness retained or employed by the insurer, and his official report should not be confused with a Rule 26(a)(2)(B) report. In contrast to the fire inspector, a trial consultant will usually be retained or employed by a party when he is asked to provide expert testimony. Therefore, he will probably be required to prepare a Rule 26(a)(2)(B) report. The consequences for failing to comply with Rule 26(a)(2)(B) may be severe; indeed, under Rule 37(c)(1), a party may be prohibited from using the expert evidence “at trial, at a hearing, or on a motion” if Rule 26(a) is violated (Roberts ex rel. Johnson v. Galen of Virginia, Inc., 2003, p. 782). Therefore, it is important that trial consultants understand the requirements that govern Rule 26 expert reports. Six key requirements must be satisfied: timeliness; completeness; foundation; exhibits; curriculum vitae; and fee disclosure. These requirements and the consequences for failing to meet them will be described below. Timeliness First, expert witnesses must complete their Rule 26(a)(2)(B) reports on time. The deadline for submitting a Rule 26(a)(2)(B) report may vary from case to case, depending upon any specific instructions from the judge or agreements between the parties; however, the default rule requires that the report be submitted at least 90 days prior to trial (Fed. R. Civ. P. 26(a)(2)(D)). It should be noted too that an expert who has been retained to testify in opposition to the opinions set forth in another party’s report must submit a report of his or her own. By default, this report must be submitted to the other parties within 30 days of the date of the disclosure of the “original” report. If a report is not submitted to the other parties in a timely fashion, the judge may bar the expert from testifying at trial (e.g., Pandrol USA, LP v. Airboss Railway Products, Inc., 2005). Indeed, courts have held that the “failure to disclose in a timely manner is equivalent to failure to disclose,” and subjects parties to sanctions (Trost v. Trek Bicycle Corp., 1998, p. 1008; Fed. R. Civ. P. 16, 37). Therefore, trial consultants who have been asked to submit an expert report should confer with counsel, identify the relevant deadlines, and if necessary, ask counsel to request additional time from the court.

Completeness Completeness, like timeliness, is a critical feature of a Rule 26(a)(2)(B) report, and expert witnesses must ensure that their reports are thorough. According to the rule,

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the report must include a “complete statement of all opinions” to be expressed (Fed. R. Civ. P. 26(a)(2)(B)(i) [emphasis added]). Outlines or short summaries of the witness’s proposed testimony are not sufficient (Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 1996). If, after a report is submitted, a party discovers that its expert’s report is incomplete or incorrect in some material respect, and if the “additional or corrective” information has not already been made known to the other parties, the report must be supplemented (Fed. R. Civ. P. 26(e)(1)). However, the rules do not allow an expert to wait until the trial has commenced and “supplement” his report with new, previously undisclosed opinions at the last minute (Aventis Environmental Science USA LP v. Scotts Co., 2005, p. 514). All supplements must be completed at least 30 days before trial, unless the court orders otherwise (Fed. R. Civ. P. 26(a)(3); 26(e)(2)). If an expert attempts to offer new opinions at trial that were not included in his or her report or a supplement, and if another party objects to these new opinions, the court will probably refuse to receive the opinions into evidence unless the discrepancy between the report and the testimony is “justified or harmless” (e.g., Woodworker’s Supply, Inc. v. Principal Mutual Life Insurance Co., 1999, p. 993; Minebea Co., Ltd. v. Papst, 2005; Dixie Steel Erectors, Inc. v. Grove U.S., L.L.C., 2005; United States v. Philip Morris USA Inc., 2004; Roberts ex rel. Johnson v. Galen of Virginia, Inc., 2003; Fed. R. Civ. P. 37(c)(1)). In other words, if the differences between the opinions set forth in the report and those presented at trial are not “harmless,” the trier of fact (i.e., the jury or the judge in a bench trial) will not be allowed to consider the new opinions when it deliberates. Completeness cannot be achieved unless the expert works closely with his or her client and his or her client’s attorney to determine the range of opinions that need to be introduced at trial. Even so, an expert bears primary responsibility for the contents of his or her report. After all, the report sets forth his or her opinions, and it must bear his or her signature (Fed. R. Civ. P. 26(a)(2)(B)). Therefore, an expert must do all that she can to avoid discrepancies between his or her report and his or her actual testimony – and the objections that these discrepancies provoke – by writing a thorough, timely report and supplementing it when necessary. Bear in mind that clients are unlikely to be enthusiastic when they are forced to spend time and money responding to objections to “new” expert opinions that could have been disclosed at the appropriate time. They will be even less enthusiastic if an important opinion is excluded from evidence because their expert witness prepared an incomplete report (Jacobsen v. Deseret Book Co., 2002). Conversely, the Rule 26(a)(2)(B) report’s completeness requirement can provide a useful means of attacking an opponent’s expert evidence. From the perspective of an “attacker,” it is important to note that courts are not inclined to exclude an expert’s trial testimony merely because there is a slight difference between his or her testimony and the opinion disclosed in his or her report (e.g., Tracinda Corp. v. DaimlerChrysler AG, 2005). Instead, as indicated above, an attacker must be prepared to convince the court that the discrepancy is neither “justified [n]or harmless,” even though the burden of proving harmlessness may fall upon the attacker’s opponent (Dixie Steel, 2005, p. *6; Roberts ex rel. Johnson, 2003; Fed. R. Civ. P. 37(c)(1)). An expert can help his client demonstrate that the opponent’s failure to

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include certain opinions in his or her expert report is not harmless by identifying the prejudice or surprise that has been caused by the new opinions and by explaining the difficulties, if any, that will hinder the client’s ability to respond to the new testimony (Dixie Steel, 2005). For example, in Dixie Steel (2005), the plaintiff filed a products liability action against Grove U.S., the manufacturer of a crane that was involved in an accident that injured the plaintiff. The plaintiff retained a metallurgist, Dr. Block, to provide expert testimony concerning the cause of the accident. In his deposition, Dr. Block revealed several opinions which were not mentioned in his Rule 26(a)(2)(B) report. Grove then moved to strike these new opinions and, in so doing, identified the new calculations that Dr. Block performed and emphasized their significance in the case. The court granted Grove’s motion, finding that Dr. Block’s failure to provide a complete report was neither justified nor harmless. The court also found that Dr. Block’s violation was willful, stating, “when a veteran expert, working with experienced counsel, waits until more than 3 months have passed after the original report was rendered to do the most meaningful work in support of that report, the expert, and counsel, know exactly what they are doing.” (p. *10.) Thus, Grove, with the assistance of its own experts, was able to exclude Dr. Block’s most “meaningful” opinions from trial. Note that Dr. Block’s new, previously undisclosed opinions were brought to light when Dr. Block was deposed by Grove. Occasionally, however, parties seeking to attack the completeness of an expert’s report will avoid taking the deposition of the opposing expert witness. This strategy can provide two main advantages (Joseph, 2005). First, since a deposition provides an expert witness with an opportunity to identify flaws or weaknesses in his opinions, skipping the deposition deprives the opposing expert of the insights that he might gain if he were deposed and makes it more difficult for the expert to supplement his opinions. Second, because an expert may use his deposition to expand upon his opinions and, perhaps, offer new opinions in response to questioning from opposing counsel, the deposition may “open the door” to evidence that might have otherwise been barred on the ground that it exceeded the scope of the expert’s report. The latter point may seem somewhat counterintuitive, because depositions are often used to “freeze” a witness’s testimony in advance of trial. However, supplementary reports notwithstanding, a Rule 26(a)(2)(B) report provides a “freeze” even if no deposition is taken. Put more simply, an expert will be limited to the views included in his report if he is not deposed (unless he submits a timely supplement to his report). Thus, a party seeking to confine the scope of an expert’s testimony to the contents of his report may wish to consider passing on the opportunity to take an expert’s deposition. Foundation and Exhibits It is not enough that a Rule 26(a)(2)(B) report include all of the opinions that an expert intends to express at trial; in addition, the report must disclose the “basis and reasons” for those opinions, along with “the data or other information considered by the witness in forming the opinions” (Fed. R. Civ. P. 26(a)(2)(B)). The main purpose of this requirement is to allow the opposing party to study the basis of the

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expert’s opinion in order to prepare to cross-examine the expert (Murray v. First Marine Insurance Co., 2002). If the basis, or foundation, for the expert’s opinions is not included in the report, the court will probably not allow those opinions to be expressed at trial. It is important to note that many courts have held that a party must disclose all of the information that its expert “generated, reviewed, reflected upon, read, and/or used” to form his opinions – even if that information would have otherwise been protected from disclosure under the attorney-client or work product privileges, and even if the expert did not ultimately rely upon that information (Synthes Spine Co., L.P. v. Walden, 2005, p. *2–4; Fed. R. Civ. P. 26 advisory committee notes (1993 Amendments)). In other words, if a party gives information to its trial expert for the expert’s consideration, that information may well end up in the hands of the opposing parties – though it does not necessarily follow that this information will be admitted into evidence (Fed. R. Evid. 703). At minimum, clients and experts should be aware of the possibility that sensitive or confidential information may be divulged to others simply because it was presented to an expert covered by Rule 26(a)(2)(B). For this reason, it may be advantageous for clients to employ two expert consultants: one who will provide expert testimony in the case, and one who will not. Since a nontestifying expert need not prepare and submit a Rule 26(a)(2) (B) report, he is under no obligation to disclose his opinions or the information upon which those opinions are based. Indeed, opposing parties can discover “facts known or opinions held” by nontestifying experts only under “exceptional circumstances” (Fed. R. Civ. P. 26(b)(4)(D); Beisecker, 1994). Thus, as a general rule, the nontestifying expert can be intimately involved in the litigation strategy and can provide advice to the client and its attorneys without raising concerns that sensitive information will be revealed. However, it is wise to maintain a clear wall of ­separation between testifying and nontestifying experts. If nontestifying experts direct the efforts of testifying efforts, a court may order that the communications between the testifying and nontestifying experts be disclosed (Trigon Ins. Co. v. United States, 2001). In addition to the data or other information considered by the expert, the expert’s report must also contain any exhibits to be used as a summary of or support for the opinions (Fed. R. Civ. P. 26(a)(2)(B)). A party may be prohibited from using at trial exhibits that were not provided with the report (Minebea Co., Ltd. v. Papst, 2005). Curriculum Vitae and Fee Disclosure Finally, an expert report must also include, in essence, the expert’s curriculum vitae, along with a statement that discloses the amount to be paid to the expert for his “study and testimony” and lists all of the other cases in which the witness has testified as an expert at trial or by deposition within the preceding 4 years (Fed. R. Civ. P. 26(a)(2)(B)). The report must also be signed by the expert. The failure to meet these requirements may or may not result in the exclusion of the expert’s opinions, depending upon the circumstances. For example, in Roberts ex rel. Johnson v. Galen of Virginia, Inc. (2003), an expert submitted a report that “was

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never signed, did not contain the data that [the expert] used in forming his opinions, did not list his publications or the amount he would be compensated, and did not include a copy of his curriculum vitae” (p. 782). However, despite these failures, the court determined that a less-severe sanction than the total exclusion of the expert’s opinions was appropriate given the unique circumstances of the case. In contrast, other courts have barred expert witnesses from testifying when the experts failed to submit their curriculum vitae or failed to provide a list of cases in which they testified during the past 4 years (e.g., Rivera Pomales v. Bridgestone Firestone Inc., 2003; Ortiz-Lopez v. Sociedade Espanola, 2001). In Sanders v. City of Minneapolis (2005), the defendants “learned that many of the claims and experiences listed in [the plaintiff’s expert witness’s] curriculum vitae were either misrepresentations or falsehoods” and asked the plaintiff to withdraw the expert (p. *8). Although the plaintiff eventually did withdraw his or her expert, his or her delay in doing so (coupled with other procedural errors that caused the defense to incur unnecessary costs) prompted the court to award $4500 in sanctions against the plaintiff’s attorney. In addition, the court forwarded a copy of its opinion “for … consideration in evaluating counsel’s ability to represent clients” (p. *8). In other words, misrepresentations in the expert’s curriculum vitae contributed to an award of monetary sanctions and possible disciplinary action against the attorney who hired him. Although counsel was far from blameless in this case, it is difficult to imagine that anyone with knowledge of this expert’s misrepresentations would ever choose to retain him in the future. Conclusion In summary, Rule 26 requires witnesses who have been retained or specially employed to provide expert testimony in civil cases to provide written reports to the other parties. These reports must satisfy several requirements, and reports that do not fully comply with these requirements invite objections and can lead to severe penalties. Clearly, experts who wish to be reemployed by their clients should submit complete, timely reports. Their failure to do so will, at minimum, create extra work for the client (who will be required to defend motions to strike the expert’s testimony) and could cause the client to lose his or her case (e.g., Ortiz-Lopez, 2001). Conversely, a trial consultant who can identify technical shortcomings in an opponent’s expert report – such as discrepancies between the report and the expert’s trial testimony and weaknesses in the report’s foundation – can provide a valuable service for his or her client.

Federal Rule of Criminal Procedure 16 and the “Written Summary” Requirement Federal Rule of Criminal Procedure 16 sets forth discovery rules that apply in criminal cases. Like its civil counterpart (Rule 26, discussed above), Rule 16

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requires parties to disclose their experts’ testimony prior to trial in order “to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through focused cross-examination” (Fed. R. Crim. P. 16 advisory committee notes (1993 Amendment)). However, Criminal Rule 16 differs from Civil Rule 26 in several key respects. The basic requirements of Rule 16 will be summarized below, with an emphasis on those requirements that should be of interest to expert witnesses. The Reciprocal Duty to Disclose Summaries of All Expert Testimony to Be Used at Trial Rule 16(a)(1)(G) states that the prosecution must give to the defendant, at the defendant’s request, “a written summary” of any expert testimony that the government intends to use during its case-in-chief at trial. After the government complies with the defendant’s request, the defense must reciprocate by providing to the prosecution, at its request, a written summary of the expert testimony that the defendant intends to use at trial (Fed. R. Crim. P. 16(b)(1)(C)). If the defendant intends to present expert testimony concerning his own mental condition, this reciprocal process operates in reverse. That is, once a defendant provides notice that he will make his mental condition an issue at trial – which he is required to do under Federal Rule of Criminal Procedure 12.2(b) – the defendant must, at the government’s request, provide the government with a written summary of the expert testimony that he intends to use at trial (Fed. R. Crim. P. 16(b)(1)(C)(ii)). If the defendant complies with this request, the government must then provide, at the defendant’s request, a summary of the expert testimony that it intends to offer on the issue of the defendant’s mental condition (Fed. R. Crim. P. 16(a)(1)(G)). Note that in contrast to the mandatory disclosures required in civil cases under Rule 26, Rule 16 doe s not require a party in a criminal case to disclose its expert testimony if the opposing party does not request it – unless the opposing party has been given assurances that the expert testimony will be disclosed without a request (United States v. Cruz, 2004; United States v. Johnson, 2000). After a party’s duty to disclose expert testimony is triggered, however, the party has a continuing duty to disclose additional expert testimony without waiting for further requests (Fed. R. Crim. P. 16(c)). Note also that unlike Civil Rule 26(a)(2)(B), which requires only “retained or specially employed” experts to submit reports, Criminal Rule 16 requires parties to submit written summaries of any expert testimony that they intend to use at trial (Fed. R. Crim. P. 16 advisory committee notes (1993 Amendment)). Recall the example of the fire inspector who was called to provide expert testimony in a civil trial involving a “fraud fire.” As explained above, in a civil case the fire inspector would not be required to submit an expert report under Rule 26(a)(2)(B) because he was not retained or employed by the insurer. If, however, the fire inspector were called to provide expert testimony on behalf of the government in a federal criminal case, the government would be required to submit a written summary of his testimony to the

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defendant (at the defendant’s request) in accordance with Federal Rule of Criminal Procedure 16, even though the government did not retain or employ the fire inspector to serve as an expert witness. Expert witnesses involved in criminal cases should be generally aware of the reciprocal disclosure process and should expect to participate in the drafting of the written summary required under Rule 16. The following sections include information that should help experts draft and submit adequate summaries of their testimony. In addition, these sections might also be useful for experts seeking to identify objections to the summaries prepared by their opponents. The Contents of the Written Summary Rule 16 summaries are intended “to permit more complete pretrial preparation” (Fed. R. Crim. P. 16 advisory committee notes (1993 Amendment)). To promote that goal, Rule 16 specifies that the summaries “must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications” (Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C)). However, the particular details that must be included in a given summary may vary greatly depending upon the nature of the expert testimony being summarized. In fact, the advisory committee notes accompanying the 1993 amendments to Rule 16 suggest that, in some cases, “a generic description of the likely witness and that witness’s qualifications may be sufficient.” In other words, Rule 16 is not necessarily violated if a summary fails to identify an expert witness by name. This sort of “generic” summary might be appropriate if, for example, a party knows that it will use testimony from a particular lab to address a scientific issue, but it is not clear which scientist from the lab will be available to present the testimony at trial. Bearing in mind that the basic contents of a Rule 16 summary may vary from case to case, all written summaries should satisfy the three fundamental requirements embodied in the rule: (1) the summary should describe the witness’s testimony; (2) it should describe the witness’s qualifications; and (3) it should describe the basis of the witness’s testimony. Each of these requirements will be discussed briefly in turn. First, in order to serve the basic purpose of Rule 16, a summary must describe the testimony that the expert witness will present at trial. Courts frown upon summaries that lack detail or contain open-ended phrases suggesting that the expert will testify to matters not covered in the summary (United States v. Conroy, 2005; United States v. Duvall, 2001). Indeed, expert witnesses are ordinarily prevented from testifying beyond the scope of their summaries (United States v. Beltran-Arce, 2005). In addition, a summary should indicate whether the expert will provide general background information or more specific expert opinions (Fed. R. Crim. P. 16 advisory committee notes (1993 Amendment)). Even if a witness will be called to present only general background testimony, however, the Rule 16 summary must contain a thorough description of that testimony. In United States v. Duvall (2001), the Seventh Circuit Court of Appeals held that the following summary did not adequately describe an expert’s testimony: Detective Erk will identify code language, the manner in which methamphetamine is distributed, tools of the trade in the distribution of methamphetamine, street prices of methamphetamine and the manner in which “cut” is added to methamphetamine to

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increase the amount of profit in the methamphetamine business. Detective Erk will also testify concerning amounts of methamphetamine an individual might have for distribution, as opposed to personal use. (p. 829)

The government argued that this summary was sufficient because the expert was merely to testify about “typical practices in drug sales.” The court found, however, that the summary was little more than a “list of topics” that failed to reveal the specific opinions that the expert ultimately presented at trial. The court explained, For example, the statement that Erk would testify concerning “the manner in which methamphetamine is distributed” does not in any way identify the particular opinion that Erk offered at trial – for example, that methamphetamine is typically divided into small packages for distribution. Similarly, the statement that Erk would testify “concerning amounts of methamphetamine an individual might have for distribution, as opposed to personal use,” does not identify what amount, according to Erk, would point to intended sales rather than use. (p. 829)

Duvall should serve as a reminder to expert witnesses that courts will find violations of Rule 16 when written summaries lack sufficient detail (See also, e.g., United States v. White, 2007). Second, Rule 16 summaries must describe the expert’s qualifications. Generally, this requirement can be satisfied by attaching the witness’s resume to the summary (United States v. Duvall, 2001). As noted above, however, the witness’s qualifications may be stated generally if the identity of the witness who will appear at trial is not known (Fed. R. Crim. P. 16 advisory committee notes (1993 Amendment)). Finally, every Rule 16 summary must include a description of the basis of the witness’s testimony. The basis of an expert witness’s testimony depends directly upon the subject matter of the testimony. For example, when a law enforcement officer seeks to introduce expert testimony about the habits and practices of drug couriers, his testimony may be based on his years of experience as a narcotics agent. A statement to that effect may be sufficient to satisfy the “basis” requirement for the summary (United States v. Duvall, 2001; United States v. Jackson, 1995). In contrast, if a case involves scientific or technical testimony, the testimony might be based upon written or oral reports, tests, investigations, or other information – including, perhaps, the opinions of other experts (Fed. R. Crim. P. 16 advisory committee notes (1993 Amendment)). In such a case, these sources must be described in the Rule 16 summary. It merits emphasis that a party is entitled to a summary of the basis of an opposing expert’s opinion even if the basis for the opinion would not be subject to disclosure under another subpart of Rule 16. For example, Rule 16(a)(1)(F) requires the government to give the defense, at its request, access to reports of examinations, scientific tests, or experiments within the government’s control that are either material to the defense or are intended to be used at trial by the prosecution – and the defense must reciprocate under Rule 16(b)(1)(B). However, if an expert relies on an examination, test, experiment, or some other source to form his or her opinion and that source does not fall within the scope of Rule 16(a)(1)(F) or (b)(1)(B), the expert must nevertheless submit a summary of his or her sources to the opponent. It should be noted also that the requirement that experts summarize the bases of their opinions may sometimes come into conflict with the rules that protect attorney

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work product (documents generated by counsel in connection with a case). Rule 16(a)(2) states, Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.

Since Rule 16(a)(1) includes the expert witness written summary requirement, it arguably takes precedence over Rule 16(a)(2)’s protection of attorney work product. Thus, it may be that internal government documents relied upon by an expert must be summarized in accordance with Rule 16(a)(1)(G), even if the internal documents themselves are not subject to disclosure under Rule 16 (United States v. Thompson, 1996). In sum, an expert witness who has been called upon to participate in a federal criminal case should expect to prepare a written summary of his or her testimony, the basis for his or her testimony, and his or her qualifications. It is important that the summary address all aspects of the expert’s testimony, because the court may not allow the expert to move beyond the scope of the summary during his or her party’s case-in-chief. Also, any reports, experiments, or other sources relied upon by the expert must be described in the summary. Experts who understand these requirements are well positioned to provide adequate summaries of their own testimony, which in turn improves the odds that their opinions will be admitted into evidence. In addition, experts familiar with Rule 16 can help their clients by identifying testimony from opposing experts which exceeds the scope of their summaries or depends upon ­information that was not described in their summaries. By spotting such testimony, experts can help clients raise valid objections to the opinions offered by their opponents.

Timeliness Unlike Civil Rule 26, which includes a default schedule for the exchange of information about expert witnesses, Criminal Rule 16 specifies no deadlines for requesting written summaries or for responding to requests for written summaries. The advisory committee notes accompanying Rule 16 merely state, “[I]t is expected that the parties will make their requests and disclosures in a timely fashion.” In order to provide parties with more specific guidance, courts often enter standard scheduling (or “progression”) orders that set dates for the submission of Rule 16 expert summaries. The deadlines established by these orders vary from court to court, but typical orders require parties to submit their summaries 1 or 2 weeks before trial (United States v. Batts, 2006; United States v. Jasper, 2003). Occasionally, a court may be required to resolve timeliness questions on a case-bycase basis, and the court will set a deadline that it finds to be just under the circumstances. For example, in a relatively recent case, the trial court ordered the production of an expert summary 24 h after the opposing party lodged a request (United States v. Beltran-Arce, 2005). In another case, the court allowed scientific

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tests conducted after the trial started to be presented during the middle of the trial (United States v. Gowan, 1994). The absence of specific deadlines for the exchange of expert summaries may tempt litigants to delay the submission of their summaries, perhaps in an effort to gain the advantage of surprise. This tactic runs counter to the basic purpose of Rule 16 and is unlikely to be tolerated by a court. In United States v. Jasper (2003), the defense argued that it was under no obligation to provide a written summary of a particular individual’s testimony “until defendant’s counsel decides that [the individual’s] role will change from being that of a consultant for the defendant to that of an expert witness testifying at trial” (p. *4). However, the court found that the government’s request for the summary was “not premature” in light of the defense’s indications that the individual might be used as an expert witness (p. *4). Moreover, the court stated that although it is true that parties are not required to provide a written summary of expert testimony that they do not intend to use at trial, “[a] llowing a defendant to defer the provision of such discovery until a final determination regarding whether or not to put an expert witness on the stand would seem to frustrate” the objectives of Rule 16 (p. *4). Because the trial was scheduled to start in 1 week, the court noted that “it is reasonable to expect that the defense has made a determination regarding their intent to use the testimony” of the expert and ordered the defense to produce a summary “forthwith” if it intended to use the expert’s testimony at trial (p. *5). If the defendant failed to produce the summary immediately, the court warned that his expert’s testimony would be excluded. In light of the wide variety of deadlines that may be ordered by a court, expert witnesses in criminal cases should communicate with their clients to determine when their expert summaries are due. They should be prepared to produce a thorough summary on short notice if the court requires it, and they should not encourage counsel to try to buy additional time by waffling about the expert’s likelihood of testifying at trial.

Remedies for Violations of Rule 16 If the prosecution or the defense violates Rule 16, the court may “enter any … order that is just under the circumstances” (Fed. R. Crim. P. 16(d)(2)(D)). For example, if a party has failed to provide the written summary required by Rule 16, the court may order disclosure of the testimony, grant a continuance, or prohibit the offending party from introducing its expert testimony (Fed. R. Crim. P. 16(d)(2)(A)-(C); United States v. Anderson, 2006). If an expert testifies beyond the scope of his summary, the jury may be instructed to disregard the expert’s “excess” testimony (United States v. Beltran-Arce, 2005). Many courts are reluctant to exclude expert testimony as a sanction for a Rule 16 violation (e.g., United States v. Finley, 2002; United States v. Ganier, 2006). This is particularly true when the defense is alleged to have committed a violation, as “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense” (Taylor v. Illinois, 1988, p. 408). It does happen, however, that defense experts are barred from testifying due to Rule 16 violations. Excluding evidence due to a party’s failure to comply with established rules of procedure and

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evidence “does not violated an accused right to present a defense so long as those rules are not “arbitrary” or “disproportionate to the purposes they are designed to serve” (United States v. Campbell, 2003, p. 535). When deciding whether exclusion is an appropriate remedy, trial courts will consider the reasons for a party’s violation of Rule 16, the degree of prejudice to the opponent that was caused by the violation, and whether a less-severe sanction could cure the prejudice (United States v. Ganier, 2006; United States v. Red Elk, 2006). It should be noted that it is very difficult to reverse a trial court’s decision to exclude (or not to exclude) the testimony of an expert when Rule 16 has been violated. Such decisions “lie within the broad discretion of the trial court and will not be reversed on appeal unless there has been an abuse of that discretion” (United States v. Anderson, 2006, p. 874). An abuse of discretion is likely to be found only if the trial court fails to consider properly the three factors listed above, i.e., the reasons for the Rule 16 violation, the prejudice caused by the violation, and the effectiveness of other remedies (United States v. Ganier, 2006; United States v. Finley, 2002; United States v. Johnson, 2000). Conclusion In summary, Federal Rule of Criminal Procedure 16 establishes a procedure for the parties to exchange summaries of expert testimony prior to trial. These summaries must describe the expert’s testimony, the basis for that testimony, and the expert’s qualifications. Parties that fail to submit complete, timely summaries risk sanctions that may include the exclusion of their experts’ testimony. Experts can help minimize the risk of sanctions by thoroughly summarizing their opinions and the basis for their opinions in a timely fashion. Conversely, experts who are unfamiliar with the Rule 16 written summary requirement are prone to make errors with potentially serious consequences: they may be ordered to rewrite their summaries on short notice, the trial may be delayed, or the experts may be barred from presenting their testimony (in whole or in part) at trial. The discovery rules establish the preliminary requirements for introducing expert testimony, but leave many questions unanswered. What sort of testimony can properly be labeled “expert” testimony? Can anyone be an expert witness? Should the opinions of an expert be presented to a jury no matter how fanciful they might be? Should the expert, professional opinions of a police officer, plumber, psychologist, and fortune-teller be evaluated in precisely the same way in order to determine whether they ought to be admitted into evidence at trial? The answers to these questions, and more, are found not in the discovery rules, but in the rules of evidence.

The Federal Rules of Evidence The Federal Rules of Evidence specify whether testimony, documents, objects, or other things ought to be considered or excluded by a federal court. Essentially, the rules act as a filter designed to promote fairness, eliminate “unjustifiable expense and

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delay,” and further the “growth and development of the law of evidence” so that “the truth may be ascertained and proceedings justly determined” (Fed. R. Evid. 102). With some exceptions, the Federal Rules of Evidence apply in both civil and criminal proceedings (Fed. R. Evid. 101; Fed. R. Evid. 1101(b)). They are broad in scope, covering such matters as the proper uses of evidence of a person’s character, the appropriate uses of the past sexual behavior of the alleged victim in a sexual misconduct case, the permissible means of attacking the credibility of witnesses, and the exceptions to the general exclusion of hearsay testimony (e.g., Fed. R. Evid. 404; Fed. R. Evid. 412; Fed. R. Evid. 608; Fed. R. Evid. 609; Fed. R. Evid. 802; Fed. R. Evid. 803; Fed. R. Evid. 804). The rules also govern the admissibility of expert testimony (Fed. R. Evid. 702; Fed. R. Evid. 703; Fed. R. Evid. 704; Fed. R. Evid. 705; Fed. R. Evid. 706). This section discusses the Federal Rules of Evidence that most directly affect courts’ decisions to admit or exclude the testimony of experts. It should be emphasized, however, that many states have not adopted – or have not fully adopted – the federal rules that address expert testimony (Bernstein & Jackson, 2004). Therefore, expert witnesses called to testify in state cases should consult with trial counsel to determine whether there are significant differences between the state’s rules of evidence and the federal rules.

Federal Rules of Evidence 701 and 702: What Constitutes an Expert Opinion? Often, witnesses are called to testify because they possess personal knowledge about facts or events that they perceived at a particular, relevant time. For example, if Customer A watches Customer B slip and fall while walking on a wet aisle in a supermarket, Customer A may be called as a witness in Customer B’s personal injury lawsuit against the supermarket. The attorneys will probably ask Customer A questions about where he or she was, what he or she was doing, and what he or she saw when Customer B slipped. These are facts that are clearly within Customer A’s personal knowledge, and his or her answers to these questions will almost certainly be received into evidence. Witnesses that provide this sort of testimony are often called “fact witnesses.” The attorneys might also ask Customer A whether, in his or her opinion, the floor was slippery. If we assume that Customer A has no special expertise about slipperiness – that is, his or her opinions about slipperiness are based upon the ordinary experience that nearly everyone possesses – his or her opinion about the slipperiness of the supermarket’s floor would probably be admitted under Federal Rule of Evidence 701 as long as his or her opinion is rationally based on his or her perception of the floor and will help the court determine whether the store might be at fault for Customer B’s fall. In contrast to lay opinion testimony, expert testimony is based upon scientific, technical, or other specialized knowledge acquired by skill, experience, education, or training (Fed. R. Evid. 702). It has been said “that the distinction between lay

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and expert witness testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field’” (Fed. R. Evid. 701 advisory committee notes (2000 Amendments); State v. Brown, 1992, p. 549). In practice, however, it is often difficult to distinguish Rule 701 lay testimony from Rule 702 expert testimony, even though the distinction is critical (e.g., Fed. R. Evid. 701 advisory committee note (2000 Amendments); United States v. Perkins, 2006; United States v. Shepard, 2006; United States v. Perry, 2006; United States v. Novaton, 2001; United States v. Figueroa-Lopez, 1997). Fortunately, trial consultants acting as expert witnesses ordinarily have no need to be concerned with the fine distinctions between Rule 701 and Rule 702 testimony. This is so because they are typically hired to apply their “scientific, technical, or other specialized knowledge” to the case, and this places them squarely within the ambit of Rule 702. A detailed discussion of Rule 702 and other rules governing the admissibility of expert testimony follows.

Rule 702: The Standard Governing the Admissibility of Expert Witness Testimony The basic evidentiary standard governing the admissibility of expert testimony appears in Federal Rule of Evidence 702. Rule 702, in its current form, has evolved from a series of court decisions dating back to 1923. A brief review of these cases is in order not only because it is necessary to a complete understanding of Rule 702, but also because most states that have not adopted Federal Rule 702 use an evidentiary standard based upon one or more of these cases (Bernstein & Jackson, 2004). In 1923, the United States Court of Appeals for the District of Columbia announced in Frye v. United States (1923) a test that would become “the dominant standard for determining the admissibility of novel scientific evidence at trial” for years to come (Stolfi, 2003, p. 862–63). In Frye, the court was asked to determine whether an expert witness should be permitted to testify about the results of a “systolic blood pressure deception test” that was administered to (and evidently passed by) the defendant in a murder case (p. 1013). The court held that the expert’s testimony was not admissible because the deception test was not “sufficiently established to have gained general acceptance” by “physiological and psychological authorities” (Frye, 1923, p. 1014). In other words, under the Frye rule, scientific evidence is admissible only if it is based upon principles that have been generally accepted in the relevant scientific community. This “general acceptance” standard was widely used in both state and federal jurisdictions over the next 70 years until the Supreme Court of the United States issued its “landmark decision” in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) (Stolfi, 2003, p. 866). In Daubert, the Court abandoned the Frye standard in light of the rather obvious fact that the Federal Rules of Evidence, which were adopted some 50 years after Frye was decided, included a rule that specifically governed the admissibility of scientific evidence. At the time of the Daubert decision, Federal Rule of Evidence 702 stated,

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If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (Daubert, 1993, p. 588)

Noting that this rule does not establish “‘general acceptance’ as an absolute prerequisite to admissibility,” the Court rejected the notion that Rule 702 codified the Frye test (Daubert, 1993, p. 588). Instead, the Court found that Rule 702 imposed a duty upon trial judges to screen scientific evidence to insure that it is both relevant and reliable. The Court explained that the duty to screen for relevance, also referred to as “fit,” is not only embodied in Federal Rule of Evidence 401, but also in Rule 702’s requirement that “the evidence or testimony assist the trier of fact to understand the evidence or to determine a fact in issue” (Daubert, 1993, p. 591). The duty to screen for reliability stemmed from the fact that scientific testimony “must be supported by appropriate validation” by virtue of the fact that the testimony purports to be based upon scientific knowledge (p. 590). Put more simply, the Court recognized that “[i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity” (p. 590 n.9). The Court summed up the trial judge’s “gatekeeping” duty as follows: Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset … whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue…. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue. (p. 592–93)

The Court then offered four “general observations” to assist trial courts with this duty, though the Court noted that many other factors may merit consideration (p. 593). First, the Court pointed out that “[o]rdinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested” (p. 593). This observation has become known as the “falsifiability” factor. Second, the Court noted that “[a]nother pertinent consideration is whether the theory or technique has been subjected to peer review and publication,” though the Court recognized that publication “does not necessarily correlate with reliability” (Daubert, 1993, p. 593). This consideration has been labeled the “peer review” factor. Third, the Court stated that ordinarily “the known or potential rate of error … and the existence and maintenance of standards controlling the technique’s operation” should be considered (Daubert, 1993, p. 594). This observation is often referred to as the “error rate” factor. Fourth, the Court explained that the Frye standard – “general acceptance” – may merit consideration because known techniques that have not attracted more than minimal acceptance “may properly be viewed with skepticism” (Daubert, 1993, p. 594.) This observation is referred to as the “general acceptance” factor. Given the significant change in evidence law wrought by Daubert, it is perhaps not surprising that a number of questions arose in its wake. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Supreme Court clarified that trial courts’

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decisions to admit or exclude expert testimony are reviewed by appellate courts using the highly deferential “abuse of discretion” standard of review. A more important ruling, at least for the purposes of this chapter, followed in Kumho Tire Co., Ltd. v. Carmichael (1999). Daubert addressed only “scientific” expert testimony, though Rule 702 also appeared to apply to testimony based on “technical … or other specialized knowledge.” Thus, after Daubert, it was not clear whether trial courts were required to perform the same reliability and relevance assessment in all cases involving expert testimony. In Kumho Tire, the Court explained that “the evidentiary rationale that underlay the Court’s basic Daubert ‘gatekeeping’ determination” is not “limited to ‘scientific’ knowledge” (Kumho Tire, 1999, p. 148). Therefore, in all cases where evaluations of expert testimony are required, the trial court must determine whether the testimony has “a valid … connection to the pertinent inquiry,” and “whether the testimony has a ‘reliable basis in the knowledge and experience of [the relevant] discipline’” (p. 149). However, the Court was careful to note that the four primary Daubert factors – falsifiability, peer review, error rate, and general acceptance – will not necessarily bear on judges’ gatekeeping determinations involving nonscientific expert testimony, stating, “Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged” (Kumho Tire, 1999, p. 151). Instead, the Court held that the trial court must be given great “latitude in deciding how to test an expert’s reliability” in light of the particular facts and circumstances of the case (p. 152). In 2000, Federal Rule of Evidence 702 was amended to incorporate the Supreme Court’s holdings in Daubert and Kumho Tire (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). As amended, the rule states, If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. (Fed. R. Evid. 702)

According to the Advisory Committee Notes for the 2000 amendments to Rule 702, which provide insight into the meaning of the rule (United States v. Vonn, 2002), “[t]he amendment affirms the trial court’s role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony” (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). These standards will be discussed in detail below, beginning with those that are most central to the trial courts’ gatekeeper function: relevance and reliability. Relevance and the Requirements of Fit and Helpfulness The first central component of Rule 702 is the requirement that expert witnesses’ testimony “assist the trier of fact to understand the evidence or to determine a fact

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in issue” Fed. R. Evid. 702. Obviously, “[e]xpert testimony which does not relate to any issue in the case is not relevant and, ergo, nonhelpful” (Daubert, 1993, p. 591). However, the relevance prong of Rule 702 has two potentially subtle aspects that can lead to the exclusion of the opinions of unwitting experts: “fit” and “helpfulness.” “Fit” refers to “whether the ‘expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute’” (Concord Boat Corp. v. Brunswick Corp, 2000, p. 1055). No matter how reliable the basis of an expert’s theory might be, it “should not be admitted if it does not apply to the specific facts of the case” (Concord Boat Corp. v. Brunswick Corp, 2000, p. 1056). Problems of fit are likely to arise when an expert fails to incorporate all of the relevant circumstances into his method of analysis (e.g., Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 2005; Concord Boat Corp. v. Brunswick Corp, 2000), or the expert’s opinion is based upon a misunderstanding of the relevant law (e.g., United States v. Wintermute, 2006; Diesel Machinery, Inc. v. B.R. Lee Industries, Inc., 2005). For example, in Nebraska Plastics (2005), the plaintiff’s expert sought to introduce his calculations of the plaintiff’s future damages. The expert’s calculations were based in part upon an assumption that every product produced by the plaintiff between 1996 and 2001 would be subject to a warranty claim, despite the fact that warranty claims had only been filed in 3.5% of cases at the time of the trial. Since the expert’s calculations failed to account for this fact, along with a “plethora” of other “specific facts tending to show limits on … future warranty claims,” the court of appeals affirmed the trial court’s decision to exclude the expert’s testimony due to a lack of fit (Nebraska Plastics, 2005, p. 417). In contrast, the lack of fit in Diesel Machinery (2005), which also involved expert testimony concerning a damages calculation, arose not from a failure to account for facts, but rather a failure to fit the testimony to the applicable law. Specifically, the defendant’s expert used a two-step analysis to discount a damages award in a lawsuit to its present value, but the common law of South Dakota required a calculation based on only the first step of the expert’s analysis. Since the expert’s methods did not fit the law that controlled the case, the court of appeals concluded that his opinion was properly excluded. These cases illustrate that whenever trial consultants are called upon to provide expert testimony, they must make sure that their opinions cohere with the factual and legal “universe”: If the facts or applicable law are at odds with the trial consultant’s methodology, the opinions may well be stricken for a lack of fit. Expert opinions will also be excluded if they are not helpful to the jury despite the fact that they fit the facts and law of the case. For example, a court will find that an expert’s opinion is not helpful whenever a layman would be capable of determining a particular issue without the assistance of an expert (Fed. R. Evid. 702, advisory committee notes (1972 Proposed Rules)). In United States v. Martin (2004), the defendant attempted to introduce the testimony of an expert in the field of eyewitness identification. The trial court excluded this testimony, and the Eighth Circuit upheld the trial court’s decision on the ground that the expert’s opinion “would not have substantially aided the jury in understanding or determining a fact in issue” (p. 954).

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[The expert’s] proffered testimony related only to the general reliability of eyewitness identifications. He would not have offered [a specific] opinion as to the reliability of either [eyewitness’s] identifications of Martin. The general reliability of eyewitness identification is a matter of common understanding. In fact, the district court specifically instructed the jury to weigh the strength of [the eyewitnesses’s] identifications by considering various reliability-related factors, including the length of time the witness observed the person, the prevailing conditions such as distance and visibility, and the strength of later identifications. (p. 954)

In other words, the expert’s testimony was found to be not helpful to the jury because the jury was capable of weighing specific “reliability-related factors” provided by the court and making a commonsense determination about the reliability of the eyewitnesses’ identifications. The exclusion of expert testimony in United States v. Foote (1990) was based on similar reasoning. In Foote, the defendant was charged with distributing controlled substances, and the government was required to prove that the defendant “knowingly and intentionally” committed the offense (p. 665). At trial, the defendant “testified that he occasionally had blackouts and hallucinations, and that he was probably high on drugs throughout” the relevant time (p. 665). He then sought to introduce the opinions of an expert on cocaine addiction in order “to show the effects of cocaine addiction on an individual and to negate the necessary element of specific intent” (p. 665). Noting that the expert had not personally examined Foote, that the expert could not testify that the defendant “was acting under the influence of narcotics at the time the alleged offenses occurred,” and that the defendant was able to testify about his own addiction, trial court held that the expert’s testimony was irrelevant (p. 665). The court of appeals affirmed this decision, pointing out that there was no reason to believe that the effects of cocaine addiction on a person’s ability to act intentionally and knowingly were beyond the jury’s common understanding. As the foregoing discussion illustrates, expert witnesses should bear in mind the concepts of fit and helpfulness when preparing their testimony. It may be necessary for experts to consult closely with trial counsel in order to insure that their planned testimony will fit not only the facts of the case, but also the applicable law. In addition, expert witnesses should be aware that the “helpfulness” component of relevance does not simply mean that the testimony must be readily applicable to the case. Foote, Martin, and other similar cases (e.g., United States v. Mull, 2002 (holding that one need not be an expert to understand that thinking, perception, and memory will be affected by cocaine use)) stand for a broader principle: expert testimony that strays too far into the realm of “common sense” can be excluded on the ground that it is not helpful to the trier of fact. Similarly, social science evidence (such as general information about factors that negatively affect eyewitness accuracy) may be susceptible to exclusion on the ground that it is not helpful to the jury, particularly if the court can be persuaded that the evidence does little more than confirm commonsense understandings about the point at issue. Trial consultants seeking to help their clients strike the expert testimony of their opponents might find these principles useful. Indeed, in some cases a consulting expert may be able to help fashion a somewhat counterintuitive argument that the substance of an opposing expert’s testimony is so widely known that it has achieved “commonsense”

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status, and the jury is therefore capable of weighing the matter without the assistance of the expert. Consider Martin, for example. One can easily envision a consulting expert working with the government to frame an argument that because the general principles of eyewitness reliability are commonly understood, the defendant’s expert’s testimony on that point would not be helpful. Indeed, the government might not have been able to spot – much less articulate – such an argument without expert assistance. Clearly, a consultant with a thorough understanding of the relevance criterion, and especially the principles of fit and helpfulness, can provide a wide array of valuable assistance to his or her clients. The Reliability Analysis and its Relationship to an Expert’s Qualifications Rule 702 specifies that witnesses may be qualified as experts “by knowledge, skill, experience, training, or education.” Essentially, anyone with knowledge beyond that provided by common experience might be capable of providing expert testimony in a particular case. No matter what the source of a witness’s expertise might be, however, the trial court must ensure that the testimony has a reliable foundation. “An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist” (Fed. R. Evid. 702, advisory committee notes (2000 Amendments)). More specifically, The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted. The expert’s testimony must be grounded in an accepted body of learning or experience in the expert’s field, and the expert must explain how the conclusion is so grounded. (Fed. R. Evid. 702, advisory committee notes (2000 Amendments)).

Nevertheless, although it is clear that the reliability of all expert testimony must be scrutinized, “the relevant factors for determining reliability will vary” depending upon the qualifications of the expert (Fed. R. Evid. 702, advisory committee notes (2000 Amendments)). Rule 702 allows for this variability by eschewing a list of specific reliability factors in favor of a broad standard: the expert testimony must be “the product of reliable principles and methods.” Certainly, this standard permits the consideration of the Daubert factors in appropriate cases, though it may be noteworthy that the four Daubert factors have not been literally incorporated into the rule (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). Courts are free to consider – and have in fact considered – additional factors such as (1) whether the expert is testifying about research that was conducted for the purposes of litigation; (2) “[w]hether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion”; (3) “[w]hether the expert has adequately accounted for obvious alternative explanations”; (4) whether the expert has exercised the same standard of care that he would employ “in his regular professional work outside his paid litigation consulting”; and (5) “[w]hether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give”

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(Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). In United States v. Eff (2006), for example, the court carefully considered each of these factors, along with the four “primary” Daubert factors, and determined that a neuropsychologist’s and a neurodevelopmentalist’s opinions about a former firefighter’s legal insanity were inadmissible. Of note, the court found that the defendant’s experts, each of whom opined that the defendant was insane based largely on his immaturity and “neurogenic disorder of XXY or Klinefelter Syndrome,” ignored an “analytical gap” between their data and their opinions. The court explained that this error weighed “heavily” against the admissibility of their opinions, stating, Dr. Boone and Dr. Sprouse provide evidence that Eff operated at a low normal level of various cognitive functions. However, all of these tests produce results that formulate a bell curve so that the first standard deviation will take in a large percentage of the population. The fact that Eff is in the low end of the “normal” range cannot be evidence that he is insane. By definition, half of the population within the first standard deviation of a bell curve is below the median. … When asked whether Eff could appreciate the wrongfulness of his acts, Dr. Boone stated that based upon the cognitive deficits revealed by the objective testing, he would be at a 10- to 12-year-old level. Similarly, Dr. Sprouse concluded that Eff operates as an 8-year-old, who does something “wrong” in order to correct it and impress his boss. Does an ability to appreciate wrongfulness only at the level of a child between 8 and 12 years of age make one insane? The court has found no authority for such a sweeping generalization. … The analytical gap between the tests which show “low normal” functioning and immature thought processes on one hand and a conclusion of insanity on the other is just too great. The gap between the evidence concerning Klinefelter Syndrome and a diagnosis of insanity is even greater. (pp. 534–535)

Thus, Eff indicates that factors other than the four renowned Daubert factors can significantly influence courts’ reliability analyses. Although the aforementioned factors might be especially useful when courts assess the principles and methods underlying scientific expert testimony, still other factors might be more informative when the reliability of the principles and methods underlying nonscientific expert testimony must be evaluated. For example, when a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)).

The reliability of this particular principle and method probably does not depend upon their falsifiability, their publication in a peer-reviewed journal, and whether they are based upon research conducted for the purposes of litigation; instead, reliability depends most directly upon the extent of the experience of the witness. If an expert witness qualified by nonscientific experience can “explain how that experience leads to the conclusion reached, why that experience is a sufficient basis

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for the opinion, and how that experience is reliably applied to the facts,” his testimony probably will be admitted – particularly if his testimony is not based upon a subjective or controversial application of his experience (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). In sum, Rule 702 requires courts to scrutinize the principles and methods underlying expert testimony to evaluate their reliability, but it would be a mistake to assume that the same factors – such as the four Daubert factors – are applicable to the reliability analysis in every case. On the contrary, the reliability analysis is a flexible inquiry that depends greatly upon the particular principles and methods that form the foundation of the expert’s testimony. If expert testimony purports to be based upon science, its ability to satisfy the Rule 702 reliability inquiry depends upon its scientific validity, which in turn might be assessed using factors such as those suggested in Daubert. In contrast, different factors may help inform an analysis of the reliability of nonscientific expert testimony. To the extent that expert witnesses can clearly articulate the principles and methods underlying their testimony, they can greatly improve the chances that their testimony will be deemed reliable. When scientific testimony is involved, the Daubert factors provide a sensible place to begin building an argument that the testimony is reliable. If expert testimony is based upon nonscientific experience, such as a law enforcement officer’s experience investigating drug trafficking, the witness should be prepared to describe his or her experience, explain how his or her experience supports his or her conclusions, defend his or her experience as providing an adequate basis for his or her conclusions, and convince the court that she has reliably applied his or her experience to the facts of the case. Conversely, an expert can perform an extremely valuable service for his client by identifying any flaws in the principles or methods underlying the opponent’s testimony that are serious enough to call the reliability of that testimony into doubt (e.g., Black v. RhonePoulenc, Inc., 1998). Suppose, for example, that an expert conducts a survey of several employees in a factory to bolster the claim, raised by a number of those employees, that a hostile work environment dominated by sexual harassment exists at the factory. Suppose too that the expert took great care in conducting this survey, employed a scientifically published sexual harassment measurement scale, and used wellestablished survey research methodology. By doing so, the expert is positioned to argue that his trial testimony (which will be based upon this survey) is reliable because it uses a generally accepted survey method, has a measurable error rate or confidence interval, and is based upon a published, peer-reviewed instrument. However, the defendant may hire an expert capable of identifying shortcomings in the survey which undermine its reliability. Perhaps this opposing expert will convince the court that the survey is unreliable because the population surveyed is too small to permit generalization. She might also argue that the survey is significantly biased because the population includes the plaintiffs themselves. In addition, she might point out that even though parts of the survey instrument have been published previously, this particular survey was conducted solely for the purposes of litigation and has not been peer-reviewed. If the defendant’s expert

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convinces the court that the survey is not reliable, the consequences for the plaintiff may be dire: the court may determine that the plaintiff’s expert’s entire survey must be excluded under Rule 702 (EEOC v. Dial Corp., 2002). Even if the plaintiff’s expert testimony is not excluded, however, the defendant can still use the challenges raised by its own expert during its cross-examination of the plaintiff’s expert and, perhaps, convince the jury that the survey is entitled to little weight. Clearly, each side has good reason to study carefully the principles and methods underlying the proposed expert testimony, and the side whose expert is best able to fashion strong arguments about the reliability of the testimony gains a great advantage. The Expert Must Apply His or Her Expertise Reliably to the Facts of the Case Rule 702 requires that expert witnesses not only base their testimony upon reliable principles and methods, but apply those principles and methods reliably to the facts of the case. In other words, an expert may use a completely reliable methodology when formulating his or her testimony, but if she misapplies that methodology to the case at hand, the trial court will likely exclude his or her testimony. Although this component of Rule 702 is relatively straightforward, two considerations merit mention. First, it should be noted that the determination that the expert has reliably applied his or her expertise to the facts of the case does not depend directly upon the particular opinion reached by the expert (Daubert, 1993). Rule 702 “is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise” (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). In other words, if two experts on the opposite sides of a case form conflicting opinions, it does not necessarily follow that one of the experts has failed to apply the principles and methods underlying his or her opinion reliably to the facts of the case. Second, this component of Rule 702 does not apply when an expert testifies about general principles, or background information, “without ever attempting to apply these principles to the specific facts of the case” (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). The advisory committee notes state, [Rule 702] does not alter the venerable practice of using expert testimony to educate the factfinder on general principles. For this kind of generalized testimony, Rule 702 simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony “fit” the facts of the case. (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)).

Simply put, “background” experts must satisfy all of the components of Rule 702 except for the requirement that they reliably apply their expertise to the facts of the case.

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The Testimony Must Be Based on Sufficient Facts or Data Rule 702 also requires that the expert’s testimony be based upon “sufficient facts or data.” Essentially, the “sufficiency” requirement performs the sensible function of barring experts from opining when facts essential to the formation of their opinions are unknown. This requirement does not mean, however, that when facts are in dispute, experts cannot “reach different conclusions based on competing versions of the facts” (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). Indeed, “[w]hen … the parties’ experts rely on conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony” (Micro Chemical, Inc. v. Lextron, Inc., 2003, p. 1392). On the other hand, “[a]necdotal evidence and ‘generalized assumptions’ are inadequate bases for an expert report” (Schwab v. Philip Morris USA, Inc., 2006, p. 1136). There must “be a link between the facts or data the expert has worked with and the conclusion the expert’s testimony is intended to support” (United States v. Mamah, 2003, p. 478). In Mamah, the defendant sought to establish that he made a false confession to FBI agents using the expert testimony of an anthropologist who specialized in the culture of Ghana and a sociologist who had “published extensively on the phenomenon of false confessions” (p. 476). The court ruled that the testimony of these experts was properly excluded, however, due to “the absence of an empirical link between [their] research and the opinion that Mamah likely gave a false confession” (p.478). The court explained, Mamah argues that [the anthropologist] would have testified that what he experienced in Ghana predisposed him to manipulation and intimidation during his interrogation by FBI agents. Such an opinion, however, would fall outside the scope of [the anthropologist’s] work, which concentrates upon Ghanaian culture. [The anthropologist’s] testimony may have been useful in answering questions about how a repressive military regime shapes Ghanaian behavioral patterns, but those questions were not pertinent here because the interrogation in this case did not occur in Ghana and Mamah has not lived in Ghana since 1984. [The anthropologist’s] expertise is limited to the cultural practices of Ghanaian nationals living in Ghana; she has no basis for extrapolating this conclusion to Mamah, a Ghanaian expatriot. Had she offered an empirical study demonstrating that Ghanaian ex-patriots who have lived in the United States for more than 10 years are unusually likely to give false confessions, then perhaps she could have established this link. But [the anthropologist] did not have at her disposal sufficient facts and data to support the proposition that Mamah’s cultural background might have induced him to give a false confession. [The sociologist’s] testimony was inadmissible for similar reasons. He could testify that false confessions do occur, but he could not establish that Mamah was interrogated under circumstances that could produce a false confession. Without an indication that Mamah was unusually susceptible to the FBI agents’ methods of interrogation, [the sociologist] could not connect his research to the particulars of Mamah’s case. Had [the sociologist] been able to testify that an individual who, like Mamah, is subjected to coercive interrogation tactics on one occasion will give a false confession on a second occasion when he is not subjected to coercive interrogation tactics, then perhaps his proffered testimony would have survived Rule 702. But the facts and data that [the sociologist] disclosed before trial in his expert report did not support such an opinion. (p. 478)

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In short, if an expert’s opinion is not founded upon necessary facts or data, but is instead based upon an unfounded inferential leap, a court is likely to conclude that the opinion fails to satisfy Rule 702.

Conclusion Expert testimony is based upon scientific, technical, or other specialized knowledge. A proponent of expert testimony has the burden of establishing, by a preponderance of the evidence, that his expert’s testimony is admissible under Rule 702. (Fed. R. Evid. 702 advisory committee notes (2000 Amendments)). In order to make this showing, the proponent must satisfy a number of requirements, some of which have been incorporated into the rule from the Supreme Court’s opinions in Daubert and Kumho Tire. First, the proponent must demonstrate that the testimony is relevant; that is, it fits the facts and law of the case and is helpful to the jury. The proponent must also show that the testimony is the product of reliable principles and methods. Many different factors might be used to assess the reliability of the principles and methods employed by the expert, but the applicability of each factor will depend upon the expert’s qualifications. That is, the factors that might inform a determination that scientific evidence is reliable may differ greatly from the factors that one might use to determine whether nonscientific, experience-based testimony is reliable. Next, the proponent must demonstrate that the expert has applied the principles and methods reliably to the facts of the case – unless the expert’s testimony is limited to general background information. Finally, the proponent must show that the expert testimony is based upon sufficient facts or data. An expert who is familiar with these requirements can take steps to help ensure that his or her testimony will be admissible under Rule 702. Moreover, by finetuning the fit between his or her testimony and the case and by striving to enhance the reliability of his or her testimony, the expert will almost certainly improve the persuasiveness of his or her testimony in the eyes of the trier of fact. In addition, an expert versed in the requirements of Rule 702 can help frame effective challenges to the fit, helpfulness, reliability, and foundation of his or her opponent’s expert testimony. These challenges may be presented to the court prior to trial, either via a motion in limine or in a Rule 702 hearing (sometimes called a Daubert hearing), as part of an effort to exclude the opposing expert’s testimony from trial. Even if the testimony is not excluded, however, this effort will not be wasted; the weaknesses in the opponent’s expert testimony can be probed during cross-examination, and the jury might be persuaded to disregard the testimony based on these weaknesses. Rule 702 is not the only Federal Rule of Evidence that should be of interest to expert witnesses, however. This chapter concludes with a brief review of Rules 703, 704, 705, 706, and 403.

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Federal Rule of Evidence 703: The Bases of Expert Testimony Federal Rule of Evidence 703 discusses the “bases of opinion testimony by experts.” Recall that Rule 702 includes the requirement that expert testimony be based upon “sufficient facts or data.” Rule 703 establishes that the “[f]acts or data upon which expert opinions are based may … be derived from three sources” (Fed. R. Evid. 703 advisory committee notes (1972 Proposed Rules)). First, an expert witness’s opinions may be based upon facts or data that the witness observed firsthand. Second, the facts or data may be presented to the expert at trial. This may be accomplished through the use of a hypothetical question, or the expert may simply “attend the trial and hear the testimony establishing the facts” (Fed. R. Evid. 703 advisory committee notes (1972 Proposed Rules)). Third, the facts or data may be presented to the expert “outside of court and other than by his own [direct] perception” (Fed. R. Evid. 703 advisory committee notes (1972 Proposed Rules)). This third source of facts or data is, perhaps, best illustrated by the example of “a physician [who] in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians, and other doctors, hospital records, and X rays” (Fed. R. Evid. 703 advisory committee notes (1972 Proposed Rules)). Rule 703 clarifies the fact that experts’ opinions may be based upon any of these sources. Rule 703 also provides that if the facts or data relied upon by the expert are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” Expert testimony based on surveys or polls – which trial consultants might use often in practice, particularly when pretrial publicity and venue issues arise – nicely illustrates the importance of this rule. As explained in Zippo Mfg. Co. v. Rogers Imports, Inc. (1963), surveys and polls present evidentiary problems because the respondent’s answers in a survey may be regarded as hearsay, and courts that were inclined to admit survey results into evidence struggled to work around the hearsay rule and its exceptions. Under Rule 703, it is clear that the results of the survey or poll can be admitted into evidence even if the respondent’s answers are inadmissible hearsay – provided that the survey or poll was conducted using valid techniques that satisfy the requirements of Rule 702 (Fed. R. Evid. 703 advisory committee notes (1972 Proposed Rules)). It merits emphasis, however, that if an expert forms his opinion based upon facts or data that are not admissible, it does not follow that those facts or data become admissible “simply because the opinion … is admitted” (Fed. R. Evid. 703 advisory committee notes (2000 Amendments)). Indeed, Rule 703 establishes a presumption against disclosing to the jury inadmissible facts or data that were relied upon by an expert, unless (1) the adverse party inquires into them on cross-examination, or (2) the proponent of the expert testimony demonstrates that their probative value in assisting the jury to weigh the expert’s opinion substantially outweighs their

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potential prejudicial effect (Fed. R. Evid. 703 advisory committee notes (2000 Amendments); Fed. R. Evid. 705).

Federal Rule of Evidence 704: Expert Testimony on the “Ultimate Issue” In the past, expert witnesses were generally prohibited from testifying on “ultimate issues,” or issues that would resolve the entire case, on the ground that such testimony invaded the province of the jury (Fed. R. Evid. 704 advisory committee notes (1972 Proposed Rules)). With one exception, Rule 704 eliminates the “ultimate issue” rule. Rule 704 states, (a)  Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b)  No expert witness testifying with respect to the mental state of condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. In other words, expert testimony is not objectionable on the ground that it “embraces an ultimate issue,” except that experts cannot testify to an opinion that a criminal defendant did or did not have a mental state or condition that constitutes an element of a crime or defense. This exception is implicated when (1) criminal defendants use expert testimony to attempt to negate the mens rea, or mental state, element of an offense, or (2) the insanity defense is at issue (United States v. Morales, 1997, p. 1038; United States v. Liner, 2006; United States v. Dixon, 2009). Although Rule 704(a) purports to allow most “ultimate issue” testimony, it is vital to note that experts are not qualified to offer opinions on many ultimate issues simply because those issues often concern questions of law (Estes v. Moore, 1993). “It continues to be the sole province of the trial court to instruct the jury on the law and its applicability” (Ames v. Van Dyne, 1996, p. **4). Thus, an expert will not be allowed to testify whether a person had the capacity to make a will, but he might testify whether the person had the capacity to know the nature and extent of his property and form a plan for its distribution (Fed. R. Evid. 704 advisory committee notes (1972 Proposed Rules)). In other words, while experts should be aware of the relevant law in order to ensure that their testimony will “fit” the case, they should ensure that their testimony is couched within the scope of the witness’s expertise. If the court determines that an expert is essentially instructing the jury how to apply the law, the court will likely exclude the expert’s testimony, Rule 704(a) notwithstanding.

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Federal Rule of Evidence 705: Disclosing the Basis of Expert Testimony at Trial Federal Rule of Evidence 705 provides that an “expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise.” It adds, however, that “the expert may in any event be required to disclose the underlying facts or data on cross-examination” (Fed. R. Evid. 705). As noted in the foregoing discussion of Rule 703, often the facts or data underlying an expert’s opinions are inadmissible and cannot be disclosed to the jury by the proponent of the testimony unless certain requirements are satisfied. The scope and implications of Rule 705 are different. Under Rule 705, an expert can provide testimony without disclosing the underlying facts or data – even if those facts and data are admissible in evidence – unless the court orders otherwise. However, Rule 705 also preserves the right of the adversary to cross-examine the expert about the underlying facts or data, thereby disclosing them to the jury. Take note that the adversary will be in possession of a report or summary of the bases of the expert’s opinions under either Federal Rule of Civil Procedure 26 or Federal Rule of Criminal Procedure 16, and the adversary may very well choose to raise only the facts or data that are unfavorable to the expert’s opinion during the crossexamination.

Federal Rule of Evidence 706: Court-Appointed Experts Motivated in part by concerns about the practice of “expert-shopping” (Fed. R. Evid. 706 advisory committee notes (1972 Proposed Rules)), the Federal Rules of Evidence include a procedure for the appointment of experts by the court. This procedure is set forth in Rule 706. “Rule 706 affords the trial judge broad discretion to appoint an independent expert answerable to the court,” either on its own motion or upon the motion of a party (Ford v. Mercer County Correctional Center, 2006, p. 420). After the witness is appointed, she must inform the parties of his or her findings (Fed. R. Evid. 706(a)). Any party may then take his or her deposition, and any party or the court may call his or her’s to testify at trial. The rule is not designed to allow parties to request that the court appoint – and pay for – the services of an expert when the party could have done so himself. If a party is indigent, however, “this could provide further reason to appoint an expert to avoid a wholly one-sided presentation of opinions on the issue” (Steele v. Shah, 1996, p. 1271). It should be noted too that, in some circumstances, due process requires indigent criminal defendants to be provided with expert assistance (e.g., Ake v. Oklahoma, 1985).

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Federal Rule of Evidence 403: A Potential Trap for Experts Federal Rule of Evidence 403 is a rule of broad applicability; that is, it does not focus specifically upon the admissibility of expert testimony. Nevertheless, it is critically important for expert witnesses to grasp the principles underlying this rule. Rule 403 provides, Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In Daubert (1993), the Supreme Court cautioned that “a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules” (p. 595). The Court singled out Rule 403 for special mention and suggested that due to the powerful and potentially misleading nature of expert testimony, courts should use Rule 403 to exercise “more control over experts than over lay witnesses” (p. 595). From the point of view of an expert witness, the most important aspect of Rule 403 centers around the exclusion of evidence due to the danger of confusion of the issues or misleading the jury. If an expert does not carefully fit his or her testimony to the facts and law, a court may find that the testimony must be excluded under the “confusion of the issues” or “misleading the jury” prongs of Rule 403 – even if the “fit” is adequate to satisfy the Rule 702 relevance inquiry. An example may serve to illustrate this potential trap (or weapon, depending upon one’s perspective) for expert witnesses. Recall the hypothetical case described above involving a survey conducted to determine whether a hostile work environment existed at a factory. Suppose that a trial consultant carefully constructed a survey to assess the extent of sexual harassment at the factory, and that he or she used this survey to determine the number of employees who were exposed to jokes, slurs, or other treatment that had a sex-based component. Suppose the survey also assessed the frequency of such treatment by asking each employee to estimate the number of times that he or she witnessed or participated in such conduct, and also the number of times he or she was the direct subject of such conduct. Finally, suppose that the survey was scientifically valid, such that the reliability criterion of Rule 702 is satisfied. After compiling and analyzing the results of the survey, the expert proposes to testify at trial that a hostile work environment within the meaning of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) existed at the factory. Although he initially believes that he can offer this “ultimate issue” opinion under Rule 704(a), he decides upon reflection that he should frame his opinion in another way to avoid objections that his testimony amounts to a legal determination (e.g., Lipsett v. University of Puerto Rico, 1990). Therefore, the expert decides that he will testify that, based upon his survey, there existed a hostile work environment, operationally defined for the purposes of his testimony as “an atmosphere where a majority of the employees report experiencing, either as victims, perpetrators, or witnesses, treatment with a sex-based component.” Assume that the expert’s proposed testimony is based upon reliable principles and methods used by survey researchers; that the expert applied those methods and

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principles reliably in this case; and that the expert’s testimony would help the jury determine whether the work environment at the factory was objectively hostile (Faragher v. City of Boca Raton, 1998). In other words, all of the requirements of Rule 702 are satisfied. Assume too that the testimony is not objectionable on the ground that it amounts to a legal opinion because the operational definition of “hostile work environment” employed by the expert places his or her testimony clearly within the realm of his or her expertise. Nevertheless, the expert’s proposed testimony is vulnerable to an argument that it should be excluded under Rule 403 because it may be confusing to the jury. The potential for confusion lies in the fact that in order to properly consider the expert’s testimony, the jurors will have to distinguish between the operational definition of hostile work environment employed by the expert, i.e., “an atmosphere where a majority of the employees report experiencing, either as victims, perpetrators, or witnesses, treatment with a sex-based component,” and the legal definition of hostile work environment that will be provided to them in the form of jury instructions. If the jury is instructed in accordance with the Eighth Circuit’s model jury instructions, the jury might be asked to determine whether the plaintiff was subjected to conduct that “was sufficiently severe or pervasive that a reasonable person in plaintiff’s position would find plaintiff’s work environment to be hostile,” based on the following guidance: In determining whether a reasonable person in the plaintiff’s circumstances would find the plaintiff’s work environment to be hostile or abusive, you must look at all the circumstances. The circumstances may include the frequency of the conduct complained of; its severity; whether it was physically threatening or humiliating, or merely offensive; whether it unreasonably interfered with the plaintiff’s work performance; and the effect on plaintiff’s psychological well-being. No single factor is required in order to find a work environment hostile or abusive. (Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit, Instruction 5.42, 2005, p. 111–112).

Note that the frequency of the conduct complained of is a component of the legal definition of a hostile work environment; hence, the expert’s testimony about the frequency of reported “treatment with a sex-based component” is relevant. Note too, however, that the legal definition of hostile work environment is much broader than the expert’s. Indeed, the core inquiry requires not only a determination that the conduct was “pervasive,” which the expert’s testimony may aid, but also a determination that a reasonable person would find the environment to be hostile. Since the expert’s survey contained no assessment of the hostility or offensiveness of the sex-based treatment at the factory, his or her testimony cannot inform this component of the definition at all. In addition, the foregoing model jury instruction addresses only the objective component of a hostile work environment claim; the plaintiff must satisfy a subjective component as well (Faragher v. City of Boca Raton, 1998). The expert’s testimony will not address this component. The significant differences between the relatively narrow operational definition of hostile work environment used by the expert and the relatively broad legal definition of the term may well confuse the issue before the jury. In fact, it appears that the jury can make proper use of the expert’s testimony only if it can remember the expert’s operational definition of a hostile work environment; recognize that,

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despite the use of identical terminology, there is a significant difference between the expert’s term and the identical legal term; determine the manner in which the expert’s testimony can inform their legal task; and apply the expert’s testimony properly to the issue before them. An experienced adversary can seize upon this potential for confusion and fashion a compelling argument that, under Rule 403, the court should exclude the expert’s opinion that there existed a hostile work environment at the factory (e.g., EEOC v. Dial Corp., 2002). Had the hypothetical expert taken care to package his testimony in a manner that fits the law of the case while minimizing the potential for confusion, the adversary’s Rule 403 objection would have considerably less merit. Indeed, had the expert simply opined that sex-based treatment was commonplace at the factory, the jury would probably be able to make ready use of that opinion as it worked through its jury instructions.

Conclusion When trial consultants are called upon to provide testimony to a court, their testimony is likely to be based upon scientific, technical, or other specialized knowledge. This places them squarely within the ambit of the rules governing the admissibility of expert testimony. Although trial counsel is ultimately responsible for insuring that expert testimony complies with the applicable rules, expert witnesses themselves can, with a relatively cursory knowledge of the rules, vastly improve the value of their services to the client. The Federal Rules of Civil and Criminal Procedure require parties to exchange information about their experts prior to trial. The central obligations imposed upon expert witnesses by these discovery rules, specifically the submission of expert reports under Federal Rule of Civil Procedure 26(a)(2)(B) and the submission of written summaries under Federal Rule of Criminal Procedure 16(a)(1)(G) and (b)(1)(C), are likely to be borne most directly by expert witnesses themselves. The discussion of these rules included in this chapter should help expert witnesses prepare summaries and reports that will enable them to testify about the matters that they intend to address while avoiding the frustration and expense of responding to meritorious objections raised by opponents. The Federal Rules of Evidence also include requirements that must be satisfied before expert witnesses are permitted to testify at trial. These rules, and Rule 702 in particular, are based upon general principles that vary in their specific application from case to case, depending upon the basis of the expert’s testimony. As a result, these rules tend to be far more flexible – and perhaps more difficult to grasp – than the relatively specific discovery rules. Nevertheless, expert witnesses should become familiar with the core principles underlying these rules. Rule 702 includes requirements that expert testimony be relevant – that is, helpful to the trier of fact to understand evidence or determine facts – and reliable. The reliability component to the rule is particularly variable and may be informed by several different factors. Essentially, however, a court’s reliability analysis will center upon the principles

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and methods that make a particular opinion reliable within the relevant field of specialized knowledge: the reliability of scientific testimony will be assessed using the principles of validity familiar to scientists, while the reliability of a police officer’s testimony about drug jargon will be assessed by considering the training and experience that provide the source for the officer’s knowledge. In other words, the methods of assessing the reliability of expert testimony should be very familiar to the expert himself – indeed, they may well be more familiar to the expert witness than to the trial attorneys or the court. Therefore, expert witnesses may be relied upon heavily by trial counsel to prepare to defend the reliability of their opinions, and they may be extremely well positioned to help fashion attacks against the reliability of opposing experts’ testimony. For obvious reasons, it is likely that experts who can perform these functions will find themselves in higher demand than those who cannot. Moreover, because research suggests that jurors are not particularly sensitive to reliability challenges raised by opposing experts (e.g., Levett & Kovera, 2008), expert witnesses in general, and “attackers” in particular, should prepare to wage war over expert testimony at the admissibility stage – before the jury is allowed to even consider the testimony. In this battle, experts who understand courts’ Rule 702 analyses clearly have an advantage over those who do not. The rules of evidence also govern the use of the bases of expert testimony at trial, testimony on “ultimate issues,” the use of court-appointed experts, and the exclusion of otherwise admissible evidence on the ground that it is confusing or misleading. In certain cases, an awareness of these rules can be critically important for experts. In particular, Rule 403’s mechanism for excluding evidence that confuses the issues or misleads the jury can present a surprising hurdle for any expert which is required to “operationalize” legal terms and concepts for the purposes of their testimony. In sum, the good reasons for expert witnesses to become familiar with the applicable rules of discovery and evidence are legion, and experts should take full advantage of their opportunities to confer with trial counsel about the impact of these rules upon their testimony.

References Rules and Statutes 42 U.S.C. § 2000e et seq. Federal Rule of Civil Procedure 1 (2007). Federal Rule of Civil Procedure 26 (2007). Federal Rule of Civil Procedure 34 (2006). Federal Rule of Civil Procedure 35 (2006). Federal Rule of Civil Procedure 37 (2006). Federal Rule of Criminal Procedure 1 (2008). Federal Rule of Criminal Procedure 12.2 (2006). Federal Rule of Criminal Procedure 16 (2006). Federal Rule of Evidence 101 (2006). Federal Rule of Evidence 102 (2006). Federal Rule of Evidence 401 (2006).

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Federal Rule of Evidence 404(2006). Federal Rule of Evidence 412 (2006). Federal Rule of Evidence 608 (2006). Federal Rule of Evidence 609 (2006). Federal Rule of Evidence 701(2006). Federal Rule of Evidence 702 (2006). Federal Rule of Evidence 703 (2006). Federal Rule of Evidence 704 (2006). Federal Rule of Evidence 705 (2006). Federal Rule of Evidence 706 (2006). Federal Rule of Evidence 802 (2006). Federal Rule of Evidence 803 (2006). Federal Rule of Evidence 804 (2006). Federal Rule of Evidence 1101 (2006).

Cases Ake v. Oklahoma, 470 U.S. 68 (1985). Ames v. Van Dyne, No. 95-3376, 1996 WL 662899, at **4 (6th Cir. 1996). Aventis Environmental Science USA LP v. Scotts Co., 383 F. Supp. 2d 488 (S.D.N.Y. 2005). Black v. Rhone-Poulenc, Inc., 19 F. Supp. 2d 592, 595 (S.D. W. Va. 1998). Brandt Distributing Co., Inc. v. Federal Insurance Co., 247 F.3d 822 (8th Cir. 2001). Concord Boat Corp. v. Brunswick Corp, 207 F.3d 1039, 1055 (8th Cir. 2000). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Diesel Machinery, Inc. v. B.R. Lee Industries, Inc., 418 F.3d 820, 837 (8th Cir. 2005). Dixie Steel Erectors, Inc. v. Grove U.S., L.L.C., No. CIV-04-390-F, 2005 WL 3558663 (W.D. Okla. Dec. 29, 2005). EEOC v. Dial Corp., No Civ.A. 99-3356, 2002 WL 31061088 (N.D. Ill. Sept. 17, 2002). Estes v. Moore, 993 F.2d 161, 163–64 (8th Cir. 1993). Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Ford v. Mercer County Correctional Center, 171 F. App’x 416, 420 (3d Cir. 2006). Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). General Electric Co. v. Joiner, 522 U.S. 136 (1997). Jacobsen v. Deseret Book Co., 287 F.3d 936, 951–54 (10th Cir. 2002). Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Lipsett v. University of Puerto Rico, 740 F. Supp. 921 (D.P.R. 1990). Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed. Cir. 2003). Minebea Co., Ltd. v. Papst, 231 F.R.D. 3, 12 (D.D.C. 2005). Murray v. First Marine Insurance Co., 29 F. App’x 503, 507 (10th Cir. 2002). Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 415–16 (8th Cir. 2005). Ortiz-Lopez v. Sociedade Espanola, 248 F.3d 29, 33–37 (1st Cir. 2001). Pandrol USA, LP v. Airboss Railway Products, Inc., 424 F.3d 1161, 1167 (Fed. Cir. 2005). Rivera Pomales v. Bridgestone Firestone Inc., 217 F.R.D. 290, 291–93 (D.P.R. 2003). Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 781–84 (6th Cir. 2003). Sanders v. City of Minneapolis, No. CIV03-5817 ADM/AJB, 2005 WL 3536129, at *8 (D. Minn. Dec. 23, 2005). Schwab v. Philip Morris USA, Inc., 449 F. Supp. 2d 992, 1136 (E.D.N.Y. 2006), rev’d sub nom. on other grounds, McLaughlin v. American Tobacco Co., 522 F.3d 215 (5th Cir. 2008). Shinault v. Sears Logistic Services, No. 03-2309-MA/V, 2004 WL 792748 (W.D. Tenn. Feb. 11, 2004). Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 571 (5th Cir. 1996). State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992).

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Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996). Synthes Spine Co., L.P. v. Walden, No. CIV.A. 04-CV-4140, 2005 WL 3591982 (E.D. Penn. Dec. 21, 2005). Taylor v. Illinois, 484 U.S. 400, 408 (1988). Tracinda Corp. v. DaimlerChrysler AG, 362 F. Supp. 2d 487 (D. Del. 2005). Trigon Ins. Co. v. United States, 204 F.R.D. 277, 281–84 (E.D. Va. 2001). Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998). United States v. Anderson, 446 F.3d 870, 874–76 (8th Cir. 2006). United States v. Batts, 171 F. App’x 977, 982 (4th Cir. 2006). United States v. Beltran-Arce, 415 F.3d 949, 953–54 (8th Cir. 2005). United States v. Campbell, 81 F. App’x 532, 535 (6th Cir. 2003). United States v. Conroy, 424 F.3d 833, 838 & n.2 (8th Cir. 2005). United States v. Cruz, 363 F.3d 187, 196 n.2 (2d Cir. 2004). United States v. Dixon, 185 F.3d 393, 400 (5th Cir. 1999). United States v. Duvall, 272 F.3d 825, 828–29 (7th Cir. 2001). United States v. Eff, 461 F. Supp. 2d 529 (E.D. Tex. 2006). United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). United States v. Finley, 301 F.3d 1000, 1018 (9th Cir. 2002). United States v. Foote, 898 F.2d 659, 665–66 (8th Cir. 1990). United States v. Ganier, 468 F.3d 920, 927 (6th Cir. 2006). United States v. Gowan, 32 F.3d 1466, 1469–70 (10th Cir. 1994). United States v. Jackson, 51 F.3d 646, 651 (7th Cir. 1995). United States v. Jasper, No. 00CR825(PKL), 2003 WL 223212, at *1, 4 (S.D.N.Y. Jan. 31, 2003). United States v. Johnson, 228 F.3d 920, 924–26 (8th Cir. 2000). United States v. Liner, 435 F.3d 920, 924 (8th Cir. 2006). United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003). United States v. Martin, 391 F.3d 949, 954 (8th Cir. 2004). United States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997). United States v. Mull, 40 F. App’x 300, 303 (8th Cir. 2002). United States v. Novaton, 271 F.3d 968, 1007–08 (11th Cir. 2001). United States v. Perkins, 470 F.3d 150, 155–56 (4th Cir. 2006). United States v. Perry, 438 F.3d 642, 650 (6th Cir. 2006). United States v. Philip Morris USA Inc., 223 F.R.D. 1 (D.D.C. 2004). United States v. Red Elk, 185 F. App’x 716, 720–25 (10th Cir. 2006). United States v. Shepard, 462 F.3d 847, 865–66 (8th Cir. 2006). United States v. Thompson, 923 F. Supp. 144, 145–46 (S.D. Ind. 1996). United States v. Vonn, 535 U.S. 55, 64 n.6 (2002). United States v. White, 492 F.3d 380, 407 (6th Cir. 2007). United States v. Wintermute, 443 F.3d 993, 1001 (8th Cir. 2006). Woodworker’s Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985 (10th Cir. 1999). Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F. Supp. 670, (S.D.N.Y. 1963).

Other Sources Beisecker, T. D. (1994). Discovering trial consultant work product: A new way to borrow an adversary’s wits? American Journal of Trial Advocacy, 17, 581, 598–600. Bernstein, D. E., & Jackson, J. E. (Spring 2004). The Daubert Trilogy in the States 4 Jurimetrics Journal 351. Gregory, P. (2005). Joseph, Expert Approaches, SL044 ALI-ABA 103. Koppel, G. S. (2005). Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure through a Collaborative Rule-Making Process, 58 Vand. L. Rev. 1167.

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Levett, L. M., & Kovera, M. B. (2008). The Effectiveness of Opposing Expert Witnesses for Educating Jurors about Unreliable Expert Evidence, 32 L. & Human Behavior 363. Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit. (May 2005). Stolfi, A. R. (2003). Why Illinois Should Abandon Frye’s General Acceptance Standard for the Admission of Novel Scientific Evidence, 78 Chi.-Kent L. Rev. 861.

Chapter 8

Selecting Experts Mark R. Cambron

Introduction The night before my first jury trial, my mentor stuck his head in the door to wish me luck and find out how I felt about facing a jury. I decided to be honest and told him I was concerned with how I would be perceived. He replied, “Remember, jurors are just folks trying to do their best to find the truth.” This simple maxim could also inform the initial thoughts of the attorney or jury consultant involved in selecting an expert for trial. How do jurors go about finding the truth and can the right expert serve as their guide? How can an attorney or jury consultant tailor a selection process for an expert that insures that the expert will be heard and respected when headlines tell us that experts are wrong every day? If jurors are preconditioned to doubt anyone claiming to be an expert, what kind of expert will be successful? These are tough questions given that recent expert opinions involving topics as diverse as whether weapons of mass destruction exist in Iraq to whether low-carbohydrate diets cause long-term weight loss have been debunked. Other examples like Y2K computer glitches supposedly destroying the world economy have become symbols of ineptitude. Constantly learning of expert “failures” creates a cultural environment wherein all are cynics, or at least skeptics, when considering experts. Moreover, expert opinions can be dissected and dismantled in cyberspace within minutes. The days when our local doctor, lawyer, banker, accountant, or mechanic was trusted based on professional standing are a faint memory. Some would argue that this culture of heightened scrutiny and distrust makes experts and their opinions less influential and, therefore, less important. However, some believe that the “true” experts are more valuable today than ever before. Without reliable, reasonable, and informed expert opinions, how do people sift through oceans of information and reach logical and sensible conclusions? M.R. Cambron (*) Kentucky Commission on Human Rights, 332 West Broadway, 7th Floor, Louisville, KY 40202, USA e-mail: [email protected]

R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_8, © Springer Science+Business Media, LLC 2011

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Most lawyers and jury consultants believe that, like society, the importance of experts in our courtrooms may be greater than ever before. In fact, selecting the right expert may be more determinative of the jury’s decision than any other factor.

Juror Attitudes About Experts “I just believed your expert more than I believed their expert.” This comment from a juror in a recent case sums up what jurors seem to value most in an expert witness. Finding an expert who excels in “believability” is difficult given that jurors know these testifying experts are “hired guns” being paid for their opinions. Additionally, jurors usually recognize when an expert uses questionable logic or takes a position contrary to common sense. So, the expert is faced with a high-wire act wherein leaning toward appearing impartial can result in a perception of weak equivocation, whereas leaning toward certainty risks diminished believability. Of course, attorneys cross-examining these experts are trying to push the expert into one of those dangerous positions. Anecdotally, attorneys and trial consultants are consistent in affirming that expert testimony is often most memorable for jurors and tends to be one of the top considerations of jurors in coming to a verdict (testimony by plaintiffs and defendants and lawyer argument in opening and closing are also frequently reported as influential). Hardened trial counsel and jury consultants concede at the least that even if an expert may not win the case for you outright, a poor expert can definitely lose your case. Academic research into juror attitudes about experts seems to confirm the anecdotal evidence of litigation professionals that experts play a significant role in juror persuasion.1 In the last 30 years, numerous studies and articles have been devoted to juror perceptions, including the influence of experts on decision making. For example, research on how jurors would react to experts assisting them with eyewitness testimony was explored in a study by Brian Cutler and colleagues.2 The authors ultimately concluded that expert testimony improved juror sensitivity to eyewitness testimony and “in comparison to jurors who heard no expert testimony, jurors who heard expert testimony gave more weight to witnessing and identification conditions.” Other research has confirmed that experts testifying on a variety of different issues are influential to jurors and are critical to both sides in the courtroom.3 A more recent article questioned the degree of influence of For an extensive treatment of juror persuasion, see chapter 3 of this volume.  Brian L. Cutler, Steven D. Penrod, and Hedy R. Dexter, “The Eyewitness, The Expert Psychologist, and The Jury,” 13 Law and Human Behavior 311–332 (September 1989). 3  See, e.g., Margaret Bull Kovera, Robert J. Levy, Eugene Borgida, and Steven D. Penrod, “Expert Testimony and Child Sexual Abuse Cases, Effects of Expert Evidence Type and Cross Examination”, 18 Law and Human Behavior 653–674 (December 1994) (jurors influenced by experts especially concerning case history); Regina Schuller, “The Impact of Battered Woman’s Syndrome Evidence on Jury Decision Processes,” 16 Law and Human Behavior 458–469 (December 1992) (testimony by experts specific to the facts involving the case was more influential than general testimony concerning battered woman syndrome). 1  2

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experts on jurors, but the same study recognized that competing experts had substantial influence given that jurors felt the two opposing experts tended to neutralize each other after hearing their respective contrasting opinions.4 Additionally, at an American Bar Association midyear meeting in Miami, Florida, in February 2007, Shari S. Diamond of Northwestern University Law School, a Senior Research Fellow at the American Bar Foundation, has reported on a study she conducted wherein fifty (50) juries were videotaped during the Arizona Jury Project, a study in which researchers were able to observe a number of actual juries in operation. She indicated at the time that the data were still being analyzed and that her team was primarily exploring juror leadership dynamics and interaction. However, she indicated that while the influence of experts was not the focus or purpose of the study, she felt that no “big surprises” were observed concerning expert influence and that based on questions from jurors, their ultimate goal was mostly to find the truth. Her general conclusion was that jurors look to whomever is helpful or influential in finding the truth, including experts. Therefore, attorney and jury consultant experiences and academic research mostly agree that an effective expert will have substantial influence on jury decision making. Further evidence supporting the belief that expert testimony affects jurors can be found in the fact that lawyers, consultants, and courts almost uniformly use expert testimony to assist jurors. A 1990 Rand Corporation study concluded that in the 1980s expert witnesses appeared in 86% of California federal court civil trials with an average of 3.3 experts per trial, evidencing that “nearly every federal civil case involving large damage claims required expert testimony.”5 It is doubtful lawyers and consultants would be using experts in nearly every case if expert testimony was unimportant to jurors. Unfortunately, little published research exists concerning the isolation of specific characteristics of experts that are effective or detrimental in influencing jurors. Therefore, when selecting experts, one is left with knowing that selection could mean victory or defeat, but no specific industry-wide list of qualities insuring expert success exists. We are instead left to selecting an expert who has “believability” based mostly on our experience and judgment as jury consultants or attorneys. To make this selection process more difficult, dozens of companies touting that they are experts on experts (Expert Resources, Inc., a company that will help find the right expert uses this as a motto) are popping up around the country, and more academics and professionals are supplementing their income as experts for hire. The result is more choice within most areas of expertise, but an increased chance of a poor choice without careful screening and preparation. So, an attorney or consultant starting the process of selecting an expert is faced with several hurdles based on apparent juror attitudes. First, the attorney or consultant knows that jurors are likely to scrutinize and place substantial importance on the opinions of the expert presented. Second, the attorney or consultant knows it is  See Jennifer L. Davenport and Brian L. Cutler, “Impact of Defense – Only an Opposing Eye Witness Expert on Juror Judgment,” 28 Law and Human Behavior 569–574 (October 2004). 5  George Brent Mickum IV and Luther L. Hajek, “Guise, Contrivance, or Artful Dodging? The Discovery Rules Governing Testifying Employee Experts,” 24 Rev. Litig. 301 (Spring 2005). 4

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difficult to find an expert who has all the necessary tools and experience and is, therefore, “believable” to discerning jurors. Third, the attorney or consultant is faced with finding that expert out of a pool of numerous choices that may all appear qualified at first glance but ultimately may prove unpersuasive.

Specific Factors in Juror Evaluation of Experts Based on Practice and Experience We all make judgments daily concerning believability. Family members tell us how they feel about us or the world, our coworkers convey information and express thoughts and feelings, and leaders and decision makers constantly tell us of their beliefs and future plans. Each day, we evaluate whether these types of people are believable on some intuitive level. In these everyday situations, we seem to grant most people a presumption of believability. However, in the courtroom, a heightened degree of scrutiny exists wherein the statements of fact and opinion of every witness, especially an expert, is analyzed by lawyers, jury consultants, the judge, and each juror to determine how believable it is.6 What thought processes do typical jurors go through to make this evaluation concerning believability of experts? Based on my personal experience as a litigator for nearly 20 years, questioning jurors after trials (allowed and encouraged in some jurisdictions), working with jury consultants, and discussing these issues with other attorneys and consultants, there are generally four factors that jurors seem to consider at least intuitively and in no particular order when evaluating the believability of an expert.7 First, the juror determines if the expert is mostly impartial. Second, the juror determines if the expert has superior knowledge or expertise. Third, the juror evaluates the helpfulness of the expert including the specifics of the expert’s testimony concerning the facts in that particular case. And last, the juror considers a “charisma” factor that all human beings are subject to when interacting with others wherein professionalism and general personality are considered. The following sections explore each of these factors in more detail.

Impartiality Since finding the truth is the ultimate goal of the juror, any appearance of dishonesty or bias by an expert can be fatal to wielding any influence with a juror. Unfortunately, some degree of bias is built into the use of experts based on which  For slightly different perspectives from the juror’s chair, see Elaine Lewis, “Bird’s-Eye View: Consultant in the Jury Box,” 25 Litigation 36 (Summer 1999) and Janet S. Kole, “ The Care and Feeding of Jurors,” 30 Litigation 43 (Winter 2004) (from an attorney’s perspective as a juror). 7  In describing these factors, I do cite some academic research, but I derive my conclusions primarily from extensive hands-on experience in trying cases and working with expert witnesses in several kinds of cases, such as products liability and construction law. 6

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side they work for and how they are compensated. Therefore, the most obvious impediment to presenting one’s expert as being impartial is the fact that the expert is being paid for his or her work. Naturally, this issue will be highlighted during all phases of the litigation by the opposition, including discovery depositions when experts are questioned by counsel, and at trial in front of the jury. The opposition will attempt to persuade jurors that the expert was paid for the substance of the opinions themselves and that for enough money the expert would slant his true opinions to help the client. Fortunately, if there is an opposition expert, the same hurdle applies given that most experts expect to be compensated. Nonetheless, how the party pays the expert can be critical to navigating through this potential minefield. Some attorneys, consultants, and experts prefer to verbally agree on terms of employment so that a written document concerning payment is not presented to jurors. In this scenario, opposing counsel is left to probe the payment arrangement without specific terms to attack and is precluded from being able to use the document to suggest bias. Written agreements usually include details concerning costs, expenses, and protection for the expert to insure compensation. All of these terms can be manipulated into making the expert look greedy or more concerned about money than his intellectual honesty. For example, expert agreements may establish exorbitant per diems or assert that an expert must be reimbursed for hotel rooms costing $500 at a minimum. Thus, written agreements are often tailored to lessen the danger of appearing greedy by stating that the expert is paid hourly based on a reasonable rate and will be reimbursed for reasonable expenses. Additionally, written agreements are often prepared to carefully narrow the tasks to be undertaken and the specific types of opinions to be explored by the expert, thereby limiting areas of inquiry by the opposition and insuring the expert is certain of the scope of employment.8 While these compensation issues must be carefully considered, most jurors understand that experts should be paid something for their work, so crossexamination by the opposing counsel can appear excessive if not considered carefully. In addition to compensation issues, lack of impartiality can be implied by the opposition based on the discovered communications between the attorney, the consultant, and the expert. Keep in mind that based on Rules of Procedure in most jurisdictions, opposing counsel will have access through subpoena or other rules concerning the disclosure of expert documents to acquire written exchanges of information between the expert and others. Thus, in addition to any written document evidencing the employment relationship between the expert, the attorney, the consultant, or the party in the litigation, one should assume all exchanges of information will be seen by the opposing counsel. Memos or e-mails from counsel or a consultant containing judgments concerning important facts or assumptions to be made by the expert to help guide the expert to any final opinions could fall into the

8  See Peter A. Warner, “Arming Your Expert for Trial,” 16 Construct 6 (Spring 2007) (for a thorough discussion of the value of written retention agreements with experts and suggestions on drafting).

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hands of the opposition and be used to suggest bias on the part of the expert. In some jurisdictions, notes taken by an expert concerning strengths and weaknesses of various opinions and even drafts of expert reports as edited or drafted by the attorney and/or the consultant can be discovered by the opposition. Such documents can be used to argue that the attorney or consultant “spoon fed” the expert selective information to insure only helpful opinions would be rendered. Therefore, careful consideration must be given by the expert, attorney, and the consultant concerning the potential appearance of undue influence when exchanging all information or communication.9 Other appearances of bias by an expert may be found through the opposition’s careful analysis of the expert’s curriculum vitae (CV) and deposition questioning. So, when selecting an expert, careful research and inquiry of background and all entries on the expert’s CV has to be performed to insure apparent impartiality and lack of embellishments or fabrications.10 Bias is also often suggested to jurors based on which side the expert typically testifies. For example, often in personal injury cases, expert doctors tend to be hired almost exclusively by either plaintiffs or defendants and over time may gain a reputation for being predisposed to believing a plaintiff has a long-term disability or, in contrast, is a malingerer and has relatively minor injuries. Therefore, an expert who has testified in hundreds of cases for one side may be made to appear partial toward that type of party in that type of case. Bias can also be demonstrated through trade association memberships, opinions previously espoused in articles and other publications, opinions offered previously by mentors, partners, or associates of the expert, grants or funding received, evocative marketing brochures or materials, and even based on the expert’s family members who may have suffered fates similar to the litigant. In short, any event or fact from the expert’s past that arguably prevents complete objectivity could be used to make jurors question the expert’s impartiality. An attorney selecting an expert must make sure that all potential biases are explored prior to finalizing the hiring of the expert. While all factors that contribute to the believability of the expert are important, the factor of impartiality is the most critical. Once a juror decides that the expert is biased or is not intellectually honest, anything said has little or no weight. Of course, lying by an expert is even more detrimental. However, it is assumed that since all testifiers, including experts, are placed under an oath to tell the truth, experts usually attempt to be truthful. In fact, since professional reputations can be destroyed by a dishonest expert, blatant lying is uncommon.  See Sidney I. Schenkier, “The Limits of Privilege in Communication with Experts,” 33 Litigation 16, 23 (Winter 2007) (“There may be no perfect solution to the trial lawyer’s quandary of how to prepare the trial expert effectively without unnecessarily exposing attorney work product. As usual, the best answer is one that employs balance, advance thought and planning, and reasonableness”). 10  See Marcy Ressler Harris, “Getting Wise About Resumé Lies,” 25 Litigation 21 (Summer 1999). 9

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Experience in the Field of Expertise Since jurors inevitably compare experts expressing competing opinions, the expert with the most experience and perceived expertise has the best chance of gaining favor with jurors. Naturally, superior credentials with regard to experience and knowledge in the field are the starting point and can convince jurors the opinions of the expert are superior. Therefore, education, recognition as an expert by other experts, relevant publications, awards, and thorough peerreviewed research in the field of expertise can all help establish the expert as being at the top of the field. Conversely, the lack of any of these, especially if an opposing expert has more experience, can be difficult to overcome. Examples exist wherein a lack of expertise was overcome with other factors suggesting believability, but when selecting an expert, one must carefully consider the inevitable battle of expertise between experts. Even case-specific CVs should be considered to highlight or add relevant expertise (as an example, a recent expert hired in a construction case highlighted doing forensic work at the White House). This factor is also critical given that the judge has the ability to exclude an expert from testifying if the judge concludes that the expert does not have the requisite skill, experience, and background to assist the jury. The judge’s analysis is based on legally established criteria that all experts must satisfy so that only reliable expert opinions will be offered to a jury. Opposing counsel will often file what is known as a Daubert or Frye challenge (the names of the legal cases setting forth expert criteria) to challenge the expertise of the expert.11 When a challenge to the expert’s credentials is made, the judge is left as the “gatekeeper” and must determine if the expert has the requisite expertise or is instead delving into fields or areas the expert is not equipped to consider adequately. The judge’s goal is to make sure the expert’s true areas of expertise are directly related to the opinions offered and that reliable and proven methods were used to reach those opinions. The practitioner or consultant must, therefore, anticipate a Daubert challenge prior to selecting any expert and must scrutinize each area of the expert’s CV and experience in the field of expertise to verify that its cumulative effect satisfies the court under the application of Daubert or Frye (depending on the jurisdiction).12

11  See Cynthia H. Cwik, “Guarding the Gate: Expert Evidence Admissibility,” 25 Litigation 6 (Summer 1999). 12  For a more detailed discussion of issues related to the admissibility of expert witness testimony, see chapter 7 of this volume. See also Joseph J. Ortego and James W. Weller, “Products Liability and the Elements of Science: Admissibility of Expert Testimony in New York and Other Frye States,” 41 Tort Trial & Insurance Practice Law Journal 83 (Fall 2005) (for specifics concerning the expert criteria under the Frye case); Michael Hoenig, “Speculative, Unfounded Expert Opinions,” New York Law Journal 3 (July 10, 2006) (for more on how the gatekeeper function is typically performed by judges).

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Helpfulness to the Jury Once impartiality and expertise in the field have been soundly established (and the court will likely be satisfied under Daubert or Frye), jurors will ultimately evaluate the expert with regard to how helpful the testimony and opinions may be to assist them in reaching a verdict. Experts are evaluated by jurors concerning helpfulness based primarily on the expert’s level of preparation and experience with the facts and data in the specific case. In particular, jurors tend to gravitate toward opinions that show a superior knowledge of the facts of the individual case and directly relate to the background and experience of the expert in the field. Preparation concerning case-specific facts can sometimes overcome deficiencies in experience within the field of expertise. Sufficient preparation so as to appear as the most helpful expert possible can include mastering deposition testimony of all key witnesses, exploring all relevant documents, and understanding all other opinions of opposition experts. Additionally, experts who have a sound method to how they acquire necessary information and formulate their opinions are usually more persuasive to jurors than an expert who appears less organized and structured. Therefore, when selecting the expert, the attorney or the consultant must be cognizant of how the expert reaches opinions to evaluate whether the expert, with adequate preparation, will appear to be the “assistant” to the jury to help them understand how facts logically flow into the expert’s opinions. Jurors also seem to value experts who have testified previously in court as more helpful compared to novices. This may seem slightly surprising given the negative connotations associated with “professional expert witnesses.” However, jurors often conclude that the expert must have exceptional expertise if frequently asked to render opinions in court. An expert’s extensive courtroom experience can also relax the expert and enable deft handling of stressful cross-examination so that confidence is conveyed. Therefore, poise and experience in court seems to trump freshness and spontaneity if the experienced expert can avoid appearing as if the case is part of an “assembly line” practice. In summary, attorneys and consultants should make sure the expert will put in the necessary work to be conversant with all salient facts and is likely to be prepared to help the jury understand all opinions. Opinions are helpful when they are communicated clearly, are cogent, and seem logical to jurors. The selection process must take into account the expert’s demeanor so that the expert is unlikely to appear as a poor actor simply reciting canned opinions after careful preparation. Ways to assist capable experts concerning effective presentation include simplifying the expert’s testimony so that it can be easily understood but avoiding a tone that sounds condescending. In addition, finding an expert who excels in teaching others can be beneficial given that we all have memories of a favorite teacher who was sincere, passionate, and cared about helping us understand. Experts who can step into that role are often viewed by jurors as most helpful, especially in complicated cases with esoteric subject matter. Further, experts who are most helpful to a jury as teachers tend to use demonstrative exhibits, pictures, models, PowerPoint,

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and other visual aids to explain their opinions. These aids can also allow experts to move around the courtroom to break up sometimes overly technical testimony and maintain juror attention.13

Charisma This category is difficult to define in any person, including an expert in the courtroom. Nonetheless, jurors commonly refer to the “charisma” of an expert after trial to describe why the expert was influential. Unfortunately, when jurors are asked to better describe what they mean by charisma, responses are varied. However, a few traits seem to be at the root of these juror comments. Most importantly, charisma as described by jurors is not to be confused with likeability, which can sometimes actually reduce the stature of the expert in the minds of jurors. Common traits of charismatic experts include professionalism, positive attitude, confidence, and delivery of the information in a sincere way. Preparation by practicing with an expert concerning a confident presentation of the expert’s testimony to the jurors – which involves such strategies as making eye contact and speaking directly to the jury (not to the attorney or the judge) – can help show this confident and sincere professionalism. If the expert is unsure of something, the expert should admit the uncertainty as opposed to overselling his or her opinion. Again, this shows jurors that the expert before them is human, and such an admission can even reinforce professionalism and credibility. This factor can sometimes be slightly impacted by demographic issues. While the stereotypes of jurors based on geography are almost always overstated (they are stereotypes after all), presenting experts with extreme personalities to certain jurors should be carefully weighed. Obviously, jurors can also be guilty of carrying certain prejudices or stereotypes into the jury box (hopefully, if prejudices exist, they can be uncovered during the jury selection process). Therefore, an expert’s appearance, accent, and overall demeanor could put him/her at a disadvantage before even testifying in front of overly provincial jurors. Lastly, “playing the role” of an expert often translates into insincerity to jurors. Therefore, forcing humor to appear lighthearted can backfire and make jurors believe the expert is trying to be someone else. Also, jokes can be used by the opposition to suggest the expert does not take the case or the opposing party seriously. Appealing experts rarely attack the opposition given that most jurors tend to be uncomfortable with people who bully others or appear arrogant, and it can make a supposedly “neutral” party appear too partisan. Therefore, the attorney or the consultant should not force the expert to argue or be an obvious advocate, but instead present the expert as a respected professional to simply and succinctly explain relevant facts and thoughtful opinions.  For more on the use of demonstrative evidence, see Chap. 10 by Nemeth.

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Legal Considerations in Selecting an Expert As pointed out previously concerning an expert’s credentials, courts attempt to control which experts testify by relying on the judge to determine if certain criteria have been met as opposed to exposing the jury to the expert and ­allowing the weight of the expert’s experience, testimony, and preparation to influence those jurors (this was the approach prior to Daubert and Frye). See supra, p. 10. The judge is given the gatekeeper function to insure not only that the expert has the requisite background and experience, but also that the methodology employed by the expert is sound based on the consensus of experts in the field. The expert must present historical support for the methodology or otherwise convince the judge that the expert’s approach is reliable. Other factors considered by the judge include whether the expert opinions have been subject to peer review and whether a logical causal nexus exists between the facts and the opinions. Judges have excluded experts under Daubert or Frye based on the expert’s failure to present articles, publications, studies, or other work supporting the opinions of the expert in the litigation. In particular, courts are concerned that experts may attempt to tailor their past opinions and conclusions to the specific case through strained logic. Therefore, carefully considering the background, history, and supporting research of the expert prior to selection is vital. One should also analyze the expert’s opinions to verify a causal relationship with the specific facts in the case. Selecting an expert that is later legally excluded from ever testifying is an error that may doom the entire case. Insuring compliance with the judge’s criteria prior to selection can be especially problematic with cutting-edge opinions such as medical testimony concerning epidemiological studies or analyses with numerous uncontrolled variables. See, e.g., Robert J. Berlin, “Epidemiology as More Than Statistics: A Revised Tool for Products Liability”, 42 Tort Trial & Insurance Practice Law Journal 81 (Fall 2006). Rest assured, opposing counsel will definitely attempt to show the court in a Daubert hearing (prior to or during trial, each side has the right to question experts without the jury present so that the judge can determine if the necessary criteria are met to present the expert to the jury) that the expert has engaged in “junk science” or fails at least one of the legal requirements. This term is frequently used by opposing counsel in such arguments and in front of jurors to cast doubt on expert conclusions. So, prior to selection, assume you will face legal arguments that proper methodology and analysis have been overlooked or omitted by the expert. Given the risks of exclusion, consultants and attorneys frequently retain multiple experts (where economically feasible) to later designate one as a “consulting” expert that will not testify, but can assist the trial team in preparing for opposing experts and assisting the testifying expert. This flexibility can allow designation of the best expert to satisfy the judge later in the case.

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Methods of Expert Selection Given Factors of Influence on Jurors and Legal Concerns Attorneys and consultants should have a specific checklist or outline concerning how to select experts given their importance in determining verdicts, the legal elements that must be satisfied, and the risks of selecting a poor expert. First, one must recognize that the opposition is also looking for the best experts in the field. So, finding the right expert may depend on how quickly the steps of selection are performed. Slight variations on method are common, but most consultants or counsel will first utilize contacts in the profession to find candidates. Some will scour the Internet to find “names” in certain industries or directly contact professional organizations concerning recognized leaders. Others will contact the local university or college for qualified faculty or may do publication searches to find authors who have written on specific topics. Also, corporate entities made up of hundreds of experts in numerous fields can be consulted for candidates. Once a list of possible experts is prepared, the experts are informed of the attorney’s interest, and professional information is requested to analyze credentials and consider experience level, strengths, and weaknesses. Often, the attorney or the consultant will request all articles and/or other publications. Attorneys and consultants also commonly ask for all previous deposition or trial testimony and a list of cases in which the expert has previously been “qualified” as an expert (Federal Courts require this and most seasoned experts keep an updated list). Attorneys or consultants identified based on trial transcripts or other investigations as having worked with the expert are then contacted for opinions of the candidate’s performance. All of this information is condensed and carefully analyzed to narrow candidates. While onerous, this front-end research will uncover potential problems and reveal the most complete experts in the field. One should have at least three candidates at this stage given potential scheduling and professional conflicts. Thereafter, an initial interview is common wherein each expert is questioned about credentials, publications, and previous testimony to establish that the expert can meet the Daubert criteria and will appear authoritative and professional to jurors. During that initial interview, which often takes place over the phone, the expert is asked general questions concerning opinions to determine if the expert’s opinion will be consistent with opinions common in the industry. This interview is designed so the attorney or consultant can determine the strengths, weaknesses, deficiencies, and general opinions of the expert to decide if that expert can further assist. Often, this initial interview is completed prior to a discussion of detailed facts in the case because information exchanged with the expert may not be privileged or considered the attorney’s work product and, therefore, may be inadvertently disseminated if the expert is not hired. In fact, in more exclusive industries, if the expert is not hired, the other side may eventually retain that same expert and could

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be privy to previous discussions between the attorney and the expert (most experts seem to have an unwritten ethical code that prevents these disclosures). Nonetheless, the expert should be asked to destroy any notes or documents exchanged if not hired to avoid inadvertent disclosure of protected impressions of counsel or the consultant. At this initial interview, in addition to determining whether the expert will be influential with jurors, the consultant or attorney should try to predict whether the expert might fall under any of the common types of “problematic” experts. In “The Medical Expert, Junk Reasoning, and Junk Science in Personal Injury Litigation,” 40 Tort Trial & Insurance Practice Journal 1101 (Summer 2005), the author, Henry Berry, identifies seven types of problematic experts (Id. at 1133). Dr. Berry, a frequent medical expert, cautions against hiring the simplistic or ignorant expert (incapable of nuanced analysis), the lazy or overworked expert (incapable of doing the necessary work), the “tunnel vision” expert (incapable of a broad perspective), the “blinkered” expert (incapable of acknowledging information harmful to opinions), the accommodating expert (incapable of confidently confronting opposition opinions), the self-deluded expert (incapable of self-objectivity), or the untethered expert (incapable of limiting the scope of opinions) (Id. at 1133–1140). These general categories apply equally to other fields of expertise and should stimulate critical thinking about the candidates interviewed to decrease the likelihood of a selection error. If the initial interview establishes that the expert has the qualities and experience necessary to assist, a second meeting is scheduled (usually in person) to discuss in detail the specific facts of the case. At that meeting, the expert is asked to offer impressions based on the facts and determine what further information is necessary to render more specific and detailed opinions. During this discussion, the details of retention are explored including costs and the timeline for complete opinions. Usually, the second meeting results in a list of additional information or documents that the expert wishes to review prior to reaching final opinions and whether an actual report or some written document must be produced by the expert. Naturally, these issues are case specific and will be governed depending on whether a written report is helpful or a hindrance and whether the exchange of documents or information may produce an opinion that can be exploited by the opposition as skewed or incomplete. See supra, p. 8 (concerning considerations of what information is safe to provide to the expert.)

Preparation and Performance of the Expert Selected After the expert is hired and disclosed to the opposition, it is likely that the expert will be deposed. There are numerous articles written on how best to prepare an expert for deposition or trial. For example, in “Powerful Witness Preparation” by Ronald J. Cohen in 27 Litigation 1 (Fall 2000), Mr. Cohen lists 20 ways to help prepare an expert for deposition and trial including many of the issues previously

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addressed in the above factors concerning impartiality, expertise, and helpfulness. For purposes of trial, considerations include more detailed issues of presentation like developing themes within opinions or tailoring testimony to specific juror concerns based on backgrounds, education, and personalities after juror selection. In conclusion, at trial, the attorney and/or consultant can recede and allow their careful selection and preparation to result in an expert equipped with all of the factors of “believability” to convince jurors that his or her opinions are superior. At the least, proper selection should insure the expert’s testimony will be heard and strongly considered.

Chapter 9

Demonstrative Evidence: Evidence and Technology in the Courtroom Erin M. Richter and Amy M. Humke

Demonstrative Evidence II: Evidence and Technology in the Courtroom In today’s ever-increasing technological world, it is no surprise that technology has advanced itself even into courtrooms. In 1998, the United States Courts Administrative Office publicly funded an effort to increase technology in courtrooms across the country (Ponder, 2005). This program proved to be successful in that judges and court officials reported the advancements helped to manage case loads, increase efficiency during court proceedings, and also reduce costs (Ponder, 2005). Less understood is the impact of technology on jurors’ perceptions of evidence and eventual verdicts. Another chapter in this volume (Nemeth this volume) provided a review of research findings on computer-animated evidence. While the outcomes of this research leave many open questions, one thing is certain; a current attorney, trial consultant, or judge will surely have to be familiar with the technological advances at use in today’s courtroom. In this chapter, we discuss the intersection of technology and demonstrative evidence. We not only discuss relevant research findings on demonstrative evidence but also provide an example of the ways in which demonstrative evidence could be used to strengthen the arguments of the case, and when technology might play a role in this. An important emphasis is on the legal claims that attorneys set out to prove in a given case and how demonstrative evidence can help establish those claims. The job of the trial consultant is not to decide the legal claims that will be utilized in the case, but rather to take the claims provided by the attorneys and determine how best to utilize and expand upon them as a basis for the demonstrative evidence you can provide. Though our examples do not provide an exhaustive list of available demonstrative evidence technology, we hope it provides at least a basic understanding. E.M. Richter (*) Department of Psychology, University of Nebraska /Lincoln, 238 Burnett Hall, Lincoln, NE 68588, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_9, © Springer Science+Business Media, LLC 2011

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Why Demonstrative Evidence? Established trial consultants often talk about the importance of finding themes in a case. Find your theme, find your story, and drive it home. This practice, is well known to legal psychologists who have long been familiar with Pennington and Hastie’s (1986) story model of juror decision making. Part of creating this story is the effective use of demonstrative evidence. Brain and Broderick (1992) define demonstrative evidence as “any display that is principally used to illustrate or explain other admissible testimonial, documentary or real evidence, or judicially noticed fact.” The use of such types of evidence in trials dates backs to the 1850s (Branson, 2004). Demonstrative evidence cannot replace witness testimony, but instead intends to enhance the statements that witnesses make (Branson). Demonstrative evidence, in and of itself, is not proof of a crime, proof of negligence, or proof of liability alone. Rather, demonstrative evidence should help attorneys and consultants illustrate the facts surrounding their case from their client’s perspective. Demonstrative evidence can play an important role in trial proceedings and in the jurors’ comprehension of case facts and the arguments presented by each side. Scholars suggest that visual displays are helpful because they can relay more information to an audience than any other method of communication (Watts, 2000). Additionally, researchers have found that exhibits presented concurrently with narration improve both retention of information and comprehension of information (Watts). In a study examining comprehension of jury instructions, Wiener and colleagues (2005) found that comprehension of complex instructions improved with the addition of a flowchart decision tree, which depicted the steps jurors should take to correctly arrive at a decision.

Deciding Which Demonstratives Are Important One important thing to consider when deciding what demonstrative evidence to display is how the trial consultant should gear the evidence toward assisting the attorneys to prove the elements of a case. For instance, in a negligence tort claim, the plaintiff must prove duty, breach, causation, and damages (Glannon, 2005). First the plaintiff must show that the defendant had a duty of some sort to the client. This may be a duty to not harm the patient (in a medical malpractice claim) or a duty to act in good faith (in a contract dispute). Next, the plaintiff must prove a breach of that duty – did the defendant act in a way that violated the duty owed to the plaintiff? If so, did the breach in duty cause any harm? If any harm occurred, what damages will compensate the plaintiff? Are there punitive damages that might also attach? Demonstrative evidence can be helpful at each step in proving each of these elements. Is there a chart or visual of the contract that can prove the duty? Is there a diagram or timeline that can help demonstrate causation? Is there a photograph that can show the harm? Are there charts to illustrate the

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monetary amount of the damages sought? For different cases, different types of demonstrative evidence will be more useful than others. For instance, in a case with multiple defendants, a “who’s to blame” chart displayed during closing arguments can help to break down liability and who is responsible for each portion of the damages (Specter, 2005). This might be displayed as a pie chart where each piece represents each possible defendant. The size of the pie piece would correspond to the amount of damages for which each defendant is liable (Specter, 2005). It is also important to remember that the demonstrative evidence must be admissible evidence for the trial. Guidelines are in place to ensure that demonstrative evidence meets the admissibility standards (Branson, 2004). Most importantly, the demonstrative evidence cannot be overly prejudicial, and it must be an accurate portrayal of the events and facts of the case (Branson). Additionally, the demonstrative evidence must be relevant to the argument the speaker is making. The court will not permit the attorney to display gruesome crime photographs for no reason at all. The photographs must be linked to the current proceedings. In some instances, judges may ask for pretrial hearings to rule on the admissibility of certain demonstrative evidence (Branson). It is important to remember that the attorneys you are working with should be helpful in making these determinations and will likely work with you to determine what is appropriate for use as demonstrative evidence. When asked about the use of demonstrative evidence, experts in the field often respond with one phrase – Keep it simple! (Nolte, 2004). Too many exhibits can overwhelm the jury with information. The consultant should choose the right amount of exhibits to convey effectively the story without losing jurors in an overabundance of superfluous information. Too much information on a chart can confuse jurors, rather than clarify the point (Nolte, 2004). As one attorney put it, “If it takes more than 2 minutes to explain to your colleagues, then it is too complicated to tell a jury.” (Specter, 2005, p. 379). A simplified, to-the-point piece of evidence can be more effective than a stack of documents which all say the same thing. Additionally, some suggest effective demonstrative evidence should evolve over the course of the trial (Atkinson, 2005). A few global items used early (perhaps during opening arguments) can be continually referred back to throughout the trial, while more specific items can be used for more specific parts of the trial.

Evidence and Technology in Use It is now time to turn to the different types of demonstrative evidence available for use. In recent years, the advent of trial presentation software has changed the mode of case presentation in most courtrooms across the country. It is certainly not usual to walk into a courtroom these days to find not only computers but also SMART Boards, video cameras, video monitors, and other hi-tech devices. It may not be enough for current trial counsel and trial consultants to merely use demonstrative evidence, but to use demonstrative evidence in a way that is technologically savvy and convincing to jurors. An attorney should not use technology to “wow”

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jurors, but rather to demonstrate more clearly the issues and facts in the current case. From the perspective of the jurors, an attorney who successfully navigates technology comes across as organized and confident of his or her case rather than “wowing” anyone. It is also important to remember to maintain a variety in the presentation styles. Though some forms of technology and evidence presentation may be flashy, jurors who see the same thing over and over again will become bored. It is best to vary the method of presentation to keep the jurors interested in what the attorney-client is saying. In the following pages, we review a variety of demonstrative evidence-presentation types and offer helpful suggestions to keep in mind. Trial Software.  A simple Google search for “trial presentation software” will show that there are many such software programs on the market today. Some of the most popular brands include TrialBook, TrialPro, TrialDirector, Sanction, and many more. Chances are that many law firms will be familiar with this trial presentation software and will use it for many of their cases. The benefit of these software programs is the ease with which they allow attorneys to present articles of evidence in their case. With the simple click of a button, a document appears on the screen with relevant sections already highlighted. With another click, the attorney can enlarge the highlighted section in the document so it is more readable in the courtroom. This software helps attorneys manage what can sometimes be thousands of pages of documents into an organized and easily accessible system. Additionally, most software will store videos and diagrams, as well as provide fact management, timelines, and outlining. Attorneys who can easily navigate the system can be very effective in the delivery of their arguments or questioning. However, it is not the consultant’s job to market, sell, and run the software for your client. We discuss it here only to highlight that beginning consultants should be aware that the software exists, and its use is becoming ever more popular. It may be a good idea to familiarize oneself with the kinds of software on the market and their different capabilities. But while the consultant may at some point be asked to become familiar with the software systems, your job, instead, is to input demonstrative evidence into the system. The content of the evidence and its impact on argument success are more important issues for the trial consultant. The job of the trial consultant is largely to assist the attorney in deciding when a particular piece of demonstrative evidence should be displayed to make an effective point. The trial presentation software is an enhancement tool for the demonstrative evidence items that the consultant and attorney have already created. Powerpoint.  Most readers of this chapter are probably very familiar with PowerPoint, which comes from Microsoft Office. Despite its commonness, the effectiveness of PowerPoint should not be overlooked. If the more expensive trial presentation software is not available to you, PowerPoint can serve as an adequate, cheaper, and more accessible alternative. PowerPoint provides a simple way to convey main themes to the jurors, and it also allows the attorney to imbed photographs, videos, computer screenshots, and even PDF images into their presentations. Richard Boren suggests that written text in all presentations, especially in PowerPoint, should be kept to a minimum (Parfitt, Braley, & Boren, 2005). Too much text will overwhelm the jury and distract them from what the speaker is saying.

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Perdue (2005) goes on to suggest that text should be kept to six words per line as that ensures simplicity and that font will be large enough to be legible. The content on the PowerPoint slides should only enhance and emphasize the speaker’s point, not make the point for the speaker. A further discussion of PowerPoint is presented later in this chapter. For a full tutorial on PowerPoint, you can refer to the Microsoft tutorials online. The authors also suggest reading “Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations That Inform, Motivate, and Inspire” by Cliff Atkinson, published by Microsoft Press. Video footage.  Videos can fulfill many purposes in trials. We do not address all uses of videos in this chapter, but instead focus on two important ones. First, we give a brief mention of videotaped depositions. It is common practice now to videotape depositions. These videos then are available during trial to help attorneys make points in their arguments, or to impeach witness testimony. Many trial presentation programs enable you to organize video depositions for easy recall and use during trial. Additionally, many computer video and DVD software programs allow you to organize videos by title, chapter, tracks, and time codes. All of these components can help make videos more easily accessible at trial. Perhaps more important to a trial consultant is the use of the so-called “day-inthe-life” video footage. As you might have guessed, this video shows the normal daily routine of the victim who is trying to demonstrate the extent of their injuries at trial. In some instances, judges have ruled that these videos are prejudicial and are only an attempt to arouse sympathy with the jury (Branson, 2004). However, other courts often allow these videos, as they clearly demonstrate the “pain and suffering” portion of the damages argument (Branson). These determinations are typically made on a case-by-case basis and will depend on the images displayed in each video (Branson). Trial consultants should be aware of the case law in the jurisdiction of the case to help determine the limitations for “day-in-the-life” videos, if they are admissible at all. Consulting with the litigating attorney on this issue should occur early on to prevent devoting a great deal of time to creating “day-inthe-life” videos that will never show up at trial. One of the many benefits of the day-in-the-life videos is that it can present the clients in familiar settings that could increase their credibility while also showing them in a more humanizing fashion (Branson, 2004). It also allows jurors to see the clients in situations that would not come up in the normal events of the trial. This could include watching the client attempt to complete normal daily activities, such as getting dressed or brushing their teeth. It also allows the jurors to journey with the client as they see doctors, therapists and attempt to complete typical errands. While footage can sometimes be emotionally painful for jurors to watch, it can often help jurors to understand the points that the client is trying to make that lose impact in the courtroom. In these videos you may also want to include interviews with those who interact with the client on a daily basis or even a reenactment of the events that led to the client’s injuries using real-life places and props. For instance, Branson discussed a video that showed the actual pool where a young girl had drowned. He felt the video conveyed much more about the dangerousness of the pool than just a normal photo.

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Experts are quick to point out the day-in-the-life videos require a lot of thought and planning. While consultants want to be sure to demonstrate the day-to-day needs of their clients, they do not want to go too far and potentially embarrass their clients or portray them in a negative light (such as being overly needy, etc.) (Branson, 2004). Some suggest that the day-in-the-life videos should not be longer than 7–10 min because a video that is too long could lessen the impact of what is seen (Heninger, 2000). Perdue (2005) also suggests that these videos will be most effective when used in conjunction with a live witness, as it is better for the jury to connect with a live person, rather than just a video. Computer animation.  Nemeth’s chapter (Chap. 10) has addressed the research findings on computer animation; thus, we focus our discussion on ways in which a consultant can use animation as a demonstrative evidence tool in the courtroom. In Clark v. Cantrell (2000), the Supreme Court of South Carolina ruled on the admissibility standards of forensic animation. These standards are similar to the overall admissibility guidelines addressing all demonstrative evidence but are also more specific to animation. First, the Court stated that the animation must be authentic (Breax, 2003). This means that a witness to the events must be able to verify the accuracy of what the animation depicts and the witness must testify to the accuracy (Breax, 2003). It is also permissible to offer testimony from the computer technician who created the animation to verify accuracy (Breax, 2003). Second, the animation must be relevant to the issues that are in litigation in the case (Breax, 2003). Third, while the animation does not necessarily need to contain every detail of the incident, it must depict all important elements of the event (Breax, 2003). It is not permissible to only select to show certain elements of the incident, which would bias the jury for or against one of the parties. Lastly, the user of the animation must disclose it to the other party in enough time for that party to verify the authenticity of the animation (Breax, 2003). (see Chap. 16). Computer animation can be a very useful tool for consultants, especially in cases where the evidence is complex. Jurors who could get lost in detailed verbal accounts of incidents may be able to see more easily events of the case when demonstrated in computer animation. One study even suggests computer animation may be preferred over use of similar standstill diagrams (Morell, 1999). In this study, Morell presented participants with one of four types of presentations by expert witnesses. The participants viewed either the expert testimony alone, or the expert testimony with diagrams only, or the expert testimony with computer animation only, or expert testimony with both diagrams and computer animation. In the end, participants who viewed computer animation retained more information and reported a better understanding than those participants who only viewed diagrams (Morell). One may want to keep in mind, however, the effects of computer animation are inconclusive at best. Given that animation can sometimes prove to be a costly effort, you may want to consider whether other types of demonstrative evidence could be just as effective for your particular case. Once again, the content of the case and evidence itself will determine the best mode of presentation. Photographs.  We have all heard the statement “a picture is worth a thousand words” many times throughout our life. This continues to be true in the courtroom.

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A photograph can display in seconds what a visual description might take minutes to explain, though there are cautions against using too many photographs in a trial. As always, remember to keep it simple. Too many photos can overwhelm an audience or even desensitize them to the information you are trying to convey (Branson, 2004). Instead, it may be helpful to use photos that overlay with each other. Branson recommends providing a base photograph and then using transparencies to overlay important additional information on top of the base. Practicing attorneys have some basic suggestions to keep in mind when using photographs as a part of demonstrative evidence. First, photographs are better when presented with a flat finish, rather than a glossy finish as the glossy finish might reflect light and have glares in the courtroom (Parfitt et al., 2005). Second, aerial photographs of scenes are the most helpful because they provide an overall perspective of the event and allow attorneys to use “flags” to highlight the important areas of the scene (Parfitt et al.). Witnesses can then refer back to these photographs during their testimony to show the jury their perspectives on the scenes (Branson, 2004). Third, photographs can be used to effectively show a before-and-after appearance of your client. For instance, a before photo could show a healthy, athletic person playing sports, while the after photo displays him or her in a wheelchair (Branson). This use of photos can drive home the point that harm has occurred to the client and someone should reimburse the sufferer for his or her injuries. Charts and diagrams.  The purpose of a chart, much like a photograph, is to convey quickly a large amount of information to the jury. Complex information can be broken down into simple, meaningful pieces of knowledge that the juror can encode and retain throughout the trial. There are an infinite number of the kinds of charts and diagrams, which consultants can create for use in trials, and we could not even begin to name them, all much less provide a detailed discussion of each. However, we offer some basic suggestions which could be helpful when thinking about the kinds of charts and diagrams that may be useful in a particular case. For one, if a case involves multiple plaintiffs or defendants, it may be helpful to include a chart during opening statements that describes who everyone is (Specter, 2005). This will help jurors set up the storyline that the rest of the testimony will convey to them. They can only follow the story once they know who the players are. Furthermore, in complex cases, one may need to use a large number of charts to convey all of the relevant information. In an effort to help jurors remember the various aspects of each diagram, some attorneys have suggested using “anchoring” in terms of chart placement in the courtroom (Branson, 2004). Branson recommends that you divide your chart types into categories and then display the different categories in different parts of the courtroom. For instance, all charts or diagrams related to liability could appear on the right side of the jury box, while charts related to damages could be placed on the left side of the jury box. This may help jurors organize the information in their mind and is a suggestion consultants could offer to the attorneys with whom they are working (Branson). To do this, of course, consultants should present charts on foam board, rather than in an electronic format. However, this can serve as a bonus in some trials as some courtrooms allow you to

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display foam-board graphs throughout the trial, while electronic graphs can only be displayed only while they are in use by the speaker (Parfitt et al., 2005). After composing your charts, it is important to test them on those that are unfamiliar with your case (Nolte, 2004). What may appear to be simple and concise to the consultant could be confusing to someone who is not familiar with the facts of the case, as is the consultant. Testing charts on a new audience before the trial could help you to create an even better version and help you to further clarify your point. Timelines.  One of the more effective kinds of charts is a timeline, which is why we discuss it separately from other charts. A timeline, of course, depicts the course of events that led to the case coming to trial. Timelines are most helpful for opening statements as they help you set up the story that you are going to convey to the jury. This calendar of events helps simplify the story. Instead of having to remember a few narratives, the jury can easily see the progression of events. Additionally, the timeline presented in the opening argument can be referred back to throughout the trial (Specter, 2005). This helps jurors understand the overall direction of the case as the attorney presents it. This is especially helpful in long cases where testimony may be presented over the course of several weeks. A reference back to the timeline can help jurors understand the parts of the case that the attorneys have already presented and what elements upcoming witnesses will still be addressing.

Case Example: Facts: Personal Injury Automobile Accident In the next section of the chapter, we present the facts of a legal case and offer suggestions on types of demonstrative evidence that could be used, and certain kinds of technology that could aid in presenting the evidence. These hypothetical case facts were adapted from Bowens v. Patterson, 1998 and Mahmood v. Pinto, 2005.

Background The plaintiff client, 18-year-old Kevin Thomas, was injured in the course of events occurring in a series of automobile accidents involving multiple vehicles. Thomas has filed a suit against the drivers of the other vehicles (Lindsey Monroe, Brian Taylor, Justin Jones, and Elizabeth Brennon). Monroe was driving in the rain soaked right lane of the JFK expressway in Green City traveling east. Her car suddenly skidded across the center and left lanes of traffic, striking the center divider of the expressway and coming to rest. Meanwhile, Taylor, was driving behind Monroe and applied the brakes when Monroe’s car began skidding. Jones, who was driving a van behind Taylor, attempted to avoid hitting Taylor’s car by moving to the right. Nevertheless, Jones’ vehicle struck Taylor’s vehicle and another vehicle operated by Kevin Thomas. After the impact, Thomas, Jones, and Taylor all pulled their vehicles over to the shoulder of the expressway approximately

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50 feet in front of Monroe’s vehicle. Thomas, who had pulled behind both Jones and Taylor, exited his vehicle and walked by the front of his vehicle to talk to Jones and Taylor who were also exiting their vehicles. As Thomas was making his way toward the front of his vehicle, a vehicle operated by the defendant Brennon struck him. Brennon had lost control of her vehicle while attempting to avoid the many vehicles that had accumulated on the shoulder of the expressway. An ambulance took Thomas to St. Francis Hospital in Green City where doctors determined he had suffered a spinal fracture at the C4–C5 levels with a loss of motor function below the neck, flaccidity with hypoactive reflexes, and a superficial avulsion injury to the right ankle. After several operations, hospitalization, and rehabilitation, Thomas returned to his parents’ home, where he currently remains dependent on them for his care. Approximately 1 year after the accident, he had reached the maximal expected recovery through outpatient therapies. Thomas is able to feel tactile stimuli only from the nipple level upward. He cannot stand, walk, run, twist, bend, stoop, climb, transfer from bed to wheelchair, or even turn his wheel chair on. The injury resulted in the loss of Thomas’ ability to use his chest muscles, loss of anal muscle control, and loss of bladder control. Thomas now relies completely on the assistance of others to achieve tasks of everyday life. Prior to the accident, Thomas had goals of going to college to obtain an education in computer science. Thomas had good grades, and he was attempting to obtain an athletics football scholarship at a nearby university. In addition, this university was one of two that was actively recruiting him at the time of the accident. The defendants are Lindsey Monroe, Simpson’s Furniture and Brian Taylor, Justin Jones, and Elizabeth Brennon. Lindsey Monroe was a high-school senior at the time of the accident and is currently attending a local community college. Brian Taylor is a 37-year-old truck driver who was making a delivery for Simpson’s Furniture store. Justin Jones is a 22-year-old student attending University on a scholarship. Elizabeth Brennon is a 70-year-old retired elementary school teacher.

Creating Effective Demonstrative Evidence For the plaintiff to recover damages, his litigation team will have to demonstrate that all or some of the named defendants were negligently driving and that this negligence was the cause of Thomas’ injury. Further, the team will have to demonstrate the extent of harm that their client has suffered. For purposes of this exercise, the defense will focus upon the defendant Brian Taylor who was making a furniture delivery at the time of the accident. The defendants will work to disprove Thomas’ claim of negligence. This can be done by disproving the elements of negligence, i.e., showing the defendants did not have a duty to the plaintiff, etc. Additionally, the defendant could try to prove that they had no alternative to their actions. An important part of the strategic defense of this particular defendant will be to assess the success of blaming other defendants and how to effectively show jurors that Simpson’s Furniture should not be found liable for this accident simply because it can afford to pay the plaintiff.

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If the plaintiff cannot prove what the defendant(s) should have done differently, his claim of negligence will not be met. Different kinds of demonstrative evidence are necessary to effectively show duty, causation, and damages, and it will vary depending on the case. We now go through possible forms of demonstrative evidence that can best show negligence, causation, and damages, then we touch on how this evidence can be referred to throughout the trial in an attempt to familiarize the jury with the points you want them to focus on and further persuade them of the defendant’s guilt and your client’s need to monetarily recover from injury. We also briefly mention some ideas for use of demonstrative evidence by the defense teams.

Negligence To show negligence, it is helpful to turn to a source that provides official guidelines pertaining to your case. In this case, a local driver’s manual will provide the baseline for the “reasonably prudent driver” under similar driving conditions. In the city of Green, the rules pertaining to interstate driving during rainy conditions includes several factors. First, drivers should follow the speed limit – which in rainy conditions means driving at a speed to prevent hydroplaning. Additionally, at night drivers should adjust speed to stop safely within the area illuminated by the headlights of your car. Second, drivers should increase their following distance when the road is wet. Under normal conditions, the rule of thumb is to allow a two-second cushion between you and the car you are following. Drivers should expand this two-second cushion in rainy conditions. Depending upon the circumstances in the case, other factors might also be considered, such as the vision of the other defendants or the lack of a valid driver’s license (Nebraska Driver’s Manual, 2005). For an effective demonstration of these rules, a consultant could devise a Driving Report Card for each of the parties in this case. This is a tool that could be used for both the plaintiff and each of the defendants. For example, the consultant could create several placards each with a separate standard written clearly across the top (i.e., “Defendant A was driving at an appropriate speed to be able to stop under the rainy conditions”). Each attorney could have the witnesses consider the facts that are in evidence and rate the defendant’s conduct by assigning a letter grade (A, B, C, D, or F) to each rule or standard. The plaintiff’s attorney would be arguing that the defendants failed to follow proper driving rules, while the defendants’ attorneys would argue that their clients should receive passing grades on each rule. If the witness assigns an F to the standard, the plaintiff’s litigation team has made its point that the defendant(s) were driving negligently. However, if the witness assigns an A for each rule, the defendants’ attorneys have won that argument (Heninger, 2000). This report card will help jurors consolidate all the points made throughout the trial, and the juror can actively draw a conclusion as to whether a defendant was negligent or not.

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To determine and demonstrate if the defendants in your case followed these rules, the attorney will need to consult eyewitnesses at the accident scene, as well as experts to determine the speed of each driver was going and/or how closely they were following the car in front of them. Both sides of this case may be able to use computerized models, animations, and graphs to demonstrate the events of the case to the jurors. On the plaintiff’s side, these aids may show how the defendant’s prudence would have prevented the accident and may help demonstrate that the defendant’s version of the events is impossible and not founded in fact (Atkinson, 2005). Additionally, these tools could help the plaintiff demonstrate the defendant’s negligence was the cause of the plaintiff’s injuries. On the defense side, these tools may be able to demonstrate how each driver acted in the most responsible way possible, given the situation. If the defense proves their clients had no other choice, the negligence claim may be denied. A timeline that outlines each defendant’s actions may be helpful. It could be that one defendant in this case would argue that another defendant is more liable than he/she is. A timeline could demonstrate the chain of events in an effective way for the jury.

Causation One way to examine causation is to provide videotaped or animated reenactments; however, if cost is an issue, diagrams will aid in clarifying a complicated situation more than relying only on a verbal explanation (Morell, 1999). A judge is only likely to allow a diagram into evidence if a competent sponsoring witness is able to corroborate that the reenactments are valid representations of the incident (Ball, 2005). A videotaped or animated reenactment is able to give jurors a vivid picture of the scene and an idea for what the visual and road conditions were like. The plaintiff’s consultant might consider making these reenactments to illustrate multiple perspectives (i.e., each defendant, the plaintiff, or witnesses) to emphasize different points of causation. In this case, it may be too complicated to re-create accurately this multiple car accident – especially considering the safety concerns this would create on a busy interstate. Therefore, computer-generated animation or diagrams might be viable alternatives. Given limited monetary resources, a consultant may want to consider creating her or his own computer-generated animation. This is possible through Microsoft PowerPoint or other programs. As PowerPoint is widespread and almost every computer has it, it is the most accessible and cost-effective way to create computer animations. PowerPoint animations will not be as sophisticated as those you can pay professionals to make; however, they will get the point across to the jury in a way that verbal explanation cannot. Creating a PowerPoint animation will take patience and practice, so do not wait until the last minute to start (for a basic overview, see Ball, 2005 or go to www.microsoft.com/office/powerpoint/ for a tutorial).

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Finally, the least expensive way to create a visual representation of the accident is to create a diagram. Given the complexity of the accident in this case, several poster boards may be necessary to portray the sequence of events in the most direct manner. When making these diagrams, one should be sure that each is large enough for jurors to see – even those jurors that might not have 20/20 vision. One advantage to presenting this key exhibit as a diagram is that it can remain on display and referenced throughout the trial (Watts, 2000).

Damages For the damages portion of the case, both sides will argue to the jurors that their assessment of the damages is correct. For the plaintiff to recover fully, the attorneys will need to adequately demonstrate the extent of harm he has suffered. Demonstrative evidence prepared by the consultants can help to both prove and disprove that reasoning. Both sides will present documentation from medical bills, and information about medical procedures, and future medical necessities. For the plaintiff, it will be helpful to demonstrate who he was before the accident, thereby illustrating how much he has lost. Each defendant, on the contrary, will present evidence to the jury about what portions of the damages they are liable for, and what amount of damages is a reasonable amount. On the plaintiff’s side, demonstrative evidence for damages in this case will likely come in two categories: (1) documentation and explanation of medical procedures and hospitalization and (2) the impact of the injury on the plaintiff’s daily life. This case (and many others) will require a great deal of paper documentation so that it will be helpful for the jury to see this information organized in a timeline (Perdue, 2005). For the plaintiff, one idea would be to present a timeline that organizes medical care, spanning the time frame from the accident to the present. This could give the jurors a visual representation of the extent of the plaintiff’s medical needs and essentially pain and suffering. If the information looks too cluttered in one timeline, it may be necessary to break it up by topic, for example, creating a separate timeline for surgeries, medical testing/examination, and rehabilitation. Throughout the trial, the attorneys for both sides will likely be presenting specific documentation about the medical care to the jury. For ease of presentation, the consultant can scan specific documentation and insert it into a PowerPoint presentation. If the attorney has access to hi-tech presentation equipment, assign each document a bar code and when time comes to present each document, simply scan the bar code and the associated document will appear on the screen. To focus the juror’s attention on specific sentences within the documents, PowerPoint (and other programs) will allow you to “call-out” specific portions of documents. This technique will provide a visual reference to the section from which the information came and easily focus attention or enlarge important information. Experts suggest that it is important to present the untouched document as scanned before showing the jury the callouts or highlighted portions of the document (Ball, 2005). For a key document, one may consider presenting the actual document to the jury to make

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sure the jurors take note of it and its importance. The difference in presentation format will make this evidence stand out to them, and during a long segment of the trial, the change will pull their attention back to the arguments (Ball, 2005). In addition to presenting hospitalization and recovery records, consultants should encourage both plaintiff and defense attorneys and witnesses to use visual representations of the surgical procedures and rehabilitation. These are necessary for jurors to grasp the nature of the injury. For this case, drawings of the spinal cord can accompany expert testimony describing the surgical procedure. If the surgery was particularly complicated, an animation or model used in conjunction with expert testimony can aid juror understanding (Atkinson, 2005). For the plaintiff to convey the difficulty of rehabilitation, the consultant can create and offer video footage of the plaintiff or of other patients with similar injuries undergoing various stages of the rehabilitative process (Atkinson, 2005). The defendant in this case might dispute the plaintiff’s recovery timeline (and therefore estimation of damages) and could present their own video of patients with this injury who differ in their recovery process from the plaintiff’s examples. For the plaintiff, demonstrating the impact that the accident and injury had on the plaintiff’s daily life is arguably the most important message to convey when presenting the damage portion of the argument; therefore, the plaintiff’s attorney should emphasize the client’s injury and lifestyle in as many mediums as possible. Visual analogies are often useful to give jurors concrete examples of hard-to-grasp concepts. For example, to illustrate how much pain medication or other medication the plaintiff will have to take monthly or yearly for the rest of his life, consider dropping jelly beans into a clear gallon jug. This will give the jury a powerful visual representation to go along with hard numbers (Heninger, 2000). To convey the jurors the daily impact of the injury upon the plaintiff, day-in-thelife videos are a useful tool, if done correctly. To enhance the effectiveness of the video, consultants should recommend using it in conjunction with a live witness so the jury connects emotionally with the person and not the video (Perdue, 2005). The video should convey the difficulties the plaintiff faces in everyday life that cannot be demonstrated in the court room. Focus on “simple” everyday tasks that the plaintiff can no longer do without assistance. For example, hygiene, travel, and other similar daily tasks are often depicted (Atkinson, 2005). These videos need to be tastefully done so as not to emotionally distance the jurors or make your client uncomfortable (Atkinson). Additionally, to have the most effective impact, these videos should be no longer than 7–10 min long (Heninger, 2000).

Review of Recommendations: Application Throughout Trial It is important for all of the litigation teams’ arguments to revolve around a theme and for the presentation to tell a story. The use of a theme will unify the arguments, and the telling of a story will make the case facts easier to understand for the jury. In telling the story, it is often helpful to have pictures of the people (defendants and plaintiff) involved. Creating a chart with the names and pictures of all key people

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can help the jury visualize events. Pairing this chart with visual demonstrative evidence, such as animations of the accident, timelines, or a flowchart portioning responsibility among all the defendants, will ensure that jurors understand the facts and they will be less likely to become confused – especially in cases with multiple defendants. In addition to these visual aids, one might want to supplement the trial presentations with PowerPoint. This will help focus the jurors on key arguments; however, it is important to keep the slides simple. Usually, PowerPoint slides should contain no more than six words per line (Perdue, 2005). Additionally, make sure to choose a large font size, and contrasting font and background colors that allow the jury to see the text (Perdue). Sometimes, it is necessary to check visibility on a projector because computer screens often give different visual impressions. Using special effects offered by PowerPoint, such as special effects revealing text or sound effects, will help emphasize key points and enhance your presentation; however, one should avoid getting carried away with these special effects. While these effects appear exciting at first, they may irritate the viewer if they are overused. Make sure the attorneys and consultants are familiar with the program and are able to make last minute changes such as reordering slides and adding or removing text to reflect rulings or add clarity (Ball, 2005). Also, remember PowerPoint allows you to incorporate scanned documents, video clips (i.e., depositions, or day-in-the-life), and audio (i.e., 911 calls or audiotaped depositions) into the presentation. Taking advantage of these techniques will provide a fluid presentation. However, it is important to remember to use more than just PowerPoint in your evidence presentation. Using a variety of methods keeps the jurors interested in what you are doing. Additionally, printed charts may be allowed to be displayed throughout the trial, while a PowerPoint presentation might be displayed only while it is in use. For a complicated accident, such as the current example, the key piece of demonstrative evidence will be the animation reenactment of the accident. The attorney should refer to this animation throughout the trial, in opening statements, during expert testimony, during eyewitness testimony, and during closing statements. Each time the attorney refers to evidence, he or she should enhance its effectiveness by changing the way it is presented. For example, one could play the animation at different speeds to make different points depending on the witness or argument, or show an animation from different viewpoints (defendants, plaintiff, or eyewitnesses). Morrell (1999) demonstrated that pairing expert testimony with animations resulted in better information retention as compared to using no demonstrative evidence or only diagrams.

Conclusion We prepared this chapter to introduce demonstrative evidence to beginning trial consultants. We review several types of evidence, which offer some helpful practice tips to keep in mind when using each piece of evidence. By no means do the authors

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imply that this is an exhaustive list. Rather, we hope that we have convinced the readers of the importance of demonstrative evidence and we encourage you to continue to educate yourself about the always-advancing world of technology and its application to demonstrative evidence at trial.

References Atkinson, C. (2005). Beyond bullet points: Using microsoft powerpoint to create presentations that inform motivate, and inspire. USA: Microsoft Press. Atkinson, L. M. (2005). Drive home your message: Effective evidence for auto cases. ATLA Annual Convention Reference Materials. Ball, C. (2005). Winning with PowerPoint. Trial, 41, 34–40. Brain, R. D., & Broderick, D. J. (1992). The derivative relevance of demonstrative evidence: Charting its proper evidentiary status. UC Davis Law Review, 25, 957–1027. Branson, F. L. (2004). Effective use of demonstrative evidence to introduce complex medical issues. Association of Trial Lawyers of American Annual Convention Materials, 2. Bowens v. Patterson, 716 S. 2d, 69–92 (LA, 1998). Breax, S. P. (2003). Is forensic animation right for your case? Trial, 39, 66. Glannon, J. W. (2005). The law of torts: Examples and explanations. Aspen, CO: Aspen. Heninger, S. D. (2000). Show, don’t tell: Effective demonstrative evidence. Trial, 36, 55–58. Mahmood v. Pinto, 17 A.D. 3d, 641–642 (NY, 2005). Morell, L. C. (1999). New technology: Experimental research on the influence of computeranimated display on jurors. Southwestern University Law Review, 28, 411–415. Nebraska Driver’s Manual (2005). Published by the state of Nebraska, Department of Motor vehicles. Nolte, D. (2004). Semiannual guide to expert witnesses: Ten rules. Los Angeles Lawyer, 27, 50–83. Parfitt, M. A., Braley, B., & Boren, R. A. (2005). Good counsel. Trial, 41, 88. Pennington, N., & Hastie, R. (1986). Evidence evaluation in complex decision-making. Journal of Personality and Social Psychology, 51, 242–258. Perdue, J. M. (2005). The art of demonstrative evidence: Seeing may be believing, but how and when demonstrative evidence is presented can make the difference between persuasion and confusion. Trial, 41, 46–51. Ponder, J. B. (2005). But look over here: how the use of technology at trial mesmerizes jurors and secures verdicts. Law & Psychology Review, 29, 289–300. Specter, S. (2005). Use of demonstrative evidence from openings to closings: A practical guide to the effective use of demonstrative evidence. American Law Institute and American Bar Association Continuing Legal Education Course of Study, SKO ALI-ABA, 72, 371–391. Watts, S. (2000). Technology creates winning visual evidence. Trial, 36, 68–74. Wiener, R. L., Rogers, M., Winter, R., Hurt, L., Hackney, A., Kadela, K., et al. (2005). Guided jury discretion in capital murder cases: The role of declarative and procedural knowledge. Psychology, Public Policy and Law, 10, 516–576.

Chapter 10

Enhanced Persuasion in the Courtroom: Visually Dynamic Demonstrative Evidence and Juror Decision Making Robert J. Nemeth

Introduction and Overview Trial lawyers may benefit from the use of visually dynamic media to persuade jurors of their case. While this approach is not new, advances in computer technology have changed the methods available for trial lawyers to best present their arguments, making for more vivid and compelling persuasive appeals (FJC & NITA, 2001; Lederer, 2004). This chapter addresses the issues surrounding the uses of visually dynamic demonstrative evidence: video simulation/reenactments and computer animation. Although little direct empirical research on computer-animated displays has been conducted, basic research findings from cognitive and social psychology can shed light on the possible reasons why demonstrative evidence may enhance the persuasiveness of an attorney’s case. This chapter proceeds with an overview of visually dynamic demonstrative evidence, followed by an analysis of the empirical research on videotape and computer-animated demonstrative evidence. In light of the direct research on videotape and computer-animated demonstrative evidence, basic findings from cognitive and social psychology that may provide useful explanatory mechanisms are discussed. The chapter concludes with suggestions for the most effective use of demonstrative evidence. In order to capture the jury’s attention and interest, as well as to increase the comprehension of particular arguments, attorneys can accentuate their case with visually presented demonstrative evidence. Traditionally, such displays have taken the form of static poster board presentations or charts; however, videotape and computer-animated displays may make for more vivid and compelling media (Bennet, Leibman, & Fetter, 1999; Bornstein & Nemeth, 1999; Dunn, Salovey, & Feigenson, 2006; FJC & NITA, 2001; Feigenson & Dunn, 2003; Kassin & Dunn, 1997; McAuliff, Nemeth, Bornstein, & Penrod, 2003). The use of more sophisticated presentation media has

R.J. Nemeth (*) Department of Psychology, University of Wisconsin-Stevens Point, Stevens Point, WI 54481, USA e-mail: [email protected]

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not come without controversy. Legal scholars and psycholegal researchers have questioned the potentially prejudicial nature of computer animation and videotape re-creations (Bennett et  al., 1999; Bornstein & Nemeth, 1999; Fishfader, Howells, Katz, & Teresi, 1996; Kassin & Dunn, 1997; Feigenson & Dunn, 2003; McAuliff et al., 2003). Concern has been expressed more for demonstrative evidence that is not merely illustrative but provides a version or theory of how the event in question transpired (Bennett et al., 1999; McAuliff et al., 2003; Wiggins, 2006). Nonetheless, the potential for enhanced attention, comprehension, and persuasiveness of an advocate’s arguments make use of computer-animated or videotape demonstrative evidence appealing to the trial lawyer. Perhaps the best example of the vivid nature of computer-animated demonstrative evidence comes from the high-profile case of Michael Skakel, who was charged with the death of Martha Moxley (Carney & Feigenson, 2004). The prosecution used a custom-made CD-ROM to display photographic and demonstrative evidence in a seamless fashion (Carney & Feigenson). Throughout the trial, the prosecution was able to access hundreds of police and crime-scene photographs, diagrams, illustrations, and audio files with the click of a mouse. The CD-ROM was organized in a visual hierarchical fashion, beginning with an aerial view of the Belle Haven neighborhood where Moxley was murdered. The prosecution team could then navigate the CD-ROM by clicking on areas of the Belle Haven neighborhood and scrolling through relevant police and crime-scene photographs. However, this was not the most elaborate of the prosecution’s persuasive appeals. The prosecution capitalized on the presentation medium by displaying a highly edited series of images and audio during the closing argument. The prosecution combined crimescene photographs of Moxley’s dead body with Skakel’s damning admission of feeling panicked when he was questioned about Martha’s whereabouts the morning after her death. Jurors both heard Skakel’s words and read them as they were projected on screen. Every time Skakel mentioned that he was panicked, the word “panic” was highlighted in red and in large font next to crime-scene photographs to communicate the prosecution’s theory that Skakel was afraid of his crime being discovered (Carney & Feigenson). Perhaps due to the prosecution’s effective use of computeranimated demonstrative evidence, Michael Skakel was found guilty of murder and given a sentence of 20 years to life. The preceding example can be used to highlight the strengths and the concerns of computer-animated demonstrative evidence. On the one hand, Carney and Feigenson (2004) have argued that the Michael Skakel case represents an appropriate and effective use of computer-animated visual displays. They pointed out the general efficiency of presenting the photographic evidence of the case projected on screen behind the witness instead of being passed one by one through the jury. In addition, the ready access of crime-scene or autopsy photographs saved the court time. Concerning the highly edited visual display during the closing argument, Carney and Feigenson argued that the closing argument provides attorneys with an opportunity to express their theory of the events in question. The combination of crime-scene photographs of Martha Moxley with Skakel’s admission of panic allowed the prosecution team to reinforce their theory of what Skakel was thinking, a theory that they surely would not have expressed through oral argument

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had they not used the computer-animated display. On the other hand, psycholegal researchers have expressed concern that the highly vivid nature of computer-animated demonstrative evidence could make it potentially prejudicial, especially if the animation biases jurors to render verdicts not in line with the physical evidence (Feigenson & Dunn, 2003; Kassin & Dunn, 1997; McAuliff et al., 2003). In order for demonstrative evidence to be admitted it must be relevant and based on the physical facts of the case (Dunn et al., 2006; McAuliff et al., 2003). However, computer-animated displays can reflect simulations and re-creations that make assumptions based on known facts (Bennett et  al., 1999; FJC & NITA, 2001; Wiggins, 2006). Given the broad discretion regarding the admissibility of demonstrative evidence, judges must act as gatekeepers using Rule 403 of the Federal Rules of Evidence (2009) to weigh the probative value of the display against its potential to prejudice the jury. Psycholegal researchers have implicated Rule 403 in conducting research on the potentially biasing nature of demonstrative evidence, tailoring their research to inform trial judges on admissibility matters (Bornstein & Nemeth, 1999; Fishfader et al., 1996; Kassin & Dunn, 1997; McAuliff et al., 2003). However, other studies have also sought to address whether computer-animated displays may aid in juror comprehension and also whether computer-animated displays may be more persuasive in certain cases over others (Bennet et al., 1999; Kassin & Dunn, 1997; Dunn et al., 2006).

Empirical Research: Does Visually Dynamic Demonstrative Evidence Enhance Persuasion in the Courtroom? To date, four juror-simulation studies have examined computer-animated or videotape demonstrative evidence. Although most of the research and discussion in law reviews and psychology journals have focused on advances in computer technology in creating computer-animated demonstrative evidence (see Feigenson, 2006), Fishfader et al. (1996) examined whether a videotape recreation may affect mock juror verdicts. Using a wrongful death case, Fishfader et al. manipulated the manner of presentation of the trial facts, comparing three conditions: print transcript, live testimony, and live testimony with a video recreation of the circumstances of the death. The case concerned the death of a young girl who drowned in a spa when her hair was caught in one of the spa’s suction covers. The video recreation depicted the drowning death of the child as well as attempts to revive her. Of particular interest to Fishfader et  al. was whether the video recreation would influence verdicts through the emotional reactions of the jurors. Although both the live testimony and the live testimony with video recreation conditions produced a stronger emotional reaction in the mock jurors than the printed transcript version of the case, the presentation mode of the trial facts did not affect liability verdicts or damage awards. Fishfader et al. concluded that the video re-creation had no effect on mock jurors’ decisions but pointed out that lawyers may continue to use these kinds of techniques given anecdotal beliefs in the persuasiveness of such media (e.g., the case

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that the study was based on was settled out of court after the plaintiff’s attorney presented the defense with the video recreation). Beliefs in the general persuasiveness of visual media over oral presentations or to supplement oral presentations are pervasive (Bennett et  al., 1999; Carney & Feigenson, 2004; Dunn et  al., 2006; Feigenson & Dunn, 2003; Wiggins, 2006). Preliminary research on computeranimated displays has provided mixed support for those beliefs. In two experiments, Kassin and Dunn (1997) showed how computer-animated demonstrative evidence may aid in the comprehension of trial evidence and how computer-animated demonstrative evidence may bias jurors against the physical evidence. In both experiments, mock jurors were presented with a civil case concerning a dispute over the payment of a life insurance policy. The plaintiff, the wife of a construction worker, was suing the insurance company for failing to pay a claim on what she argued was the accidental death of her husband. The insurance company disputed the claim on the grounds that the death was a suicide. Thus, the case hinged on the physical evidence of the death: the location of the body, relative to the building on which the decedent was working. A proplaintiff and prodefendant version of the case was created. In the proplaintiff version, the body was found 5–10 feet away from the building where the plaintiff’s husband had been working, a position that more clearly supported the plaintiff’s claim that the husband had slipped and fallen while working. In the prodefendent version, the body was found 20–25 feet away, a position that more clearly supported the defense’s claim that the husband had run and leapt to his death. In both versions, the plaintiff and the defense produced expert witnesses who attempted to accommodate the physical evidence according to the respective claims. In the first experiment, mock jurors either heard oral testimony or heard the testimony with an accompanying computer-generated animation that depicted a stick figure on an eight-story structure falling from an I-beam, landing either 5–10 feet away from the building or 20–25 feet away from the building, depending on the version of the case. The results indicated that mock jurors who saw the computeranimated demonstrative evidence rendered verdicts more in line with the physical evidence than mock jurors who only heard oral testimony. In other words, a greater percentage of mock jurors who viewed the demonstrative evidence judged the death an accident and ruled in favor of the plaintiff in the proplaintiff version of the case than mock jurors who merely heard oral testimony. Surprisingly, mock jurors who had viewed the computer-animation rated the impact of the animation below all other evidence, a finding in line with other jury-simulation research showing that mock jurors may not be able to accurately assess what factors affect their judgments (Douglas, Lyon, & Ogloff, 1997). The results from Experiment 1 of Kassin and Dunn (1997) indicated that computer-animated displays can be more persuasive than oral testimony. Experiment 2 focused more on whether computer-animated displays can be prejudicial. Using the same case materials as in the first experiment, Kassin and Dunn manipulated the computer-animated demonstrative evidence to reflect either the plaintiff’s version of events or the defense’s version of the events. In the plaintiff’s version of the events, the stick figure in the animation was shown to slip and lose balance on

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the I-beam before falling. In the defense version, the stick figure was shown to take a running jump before falling. As in the first experiment, mock jurors were presented with either proplaintiff or prodefendant versions of the case based on the physical evidence of the location of the body. Compared to mock jurors who only heard oral testimony, mock jurors who saw the slip-and-fall version of the computer animation were more likely to view the death as an accident and render verdicts in favor of the plaintiff when they heard the prodefendant case. In other words, mock jurors who had seen the computer animation of the figure slipping and falling were more likely to judge the death an accident and render verdicts for the plaintiff, even when the body was found 20–25 feet away from the building, decisions clearly discrepant with the physical evidence. The run-and-jump version of the animation did not similarly bias mock jurors who heard the proplaintiff case. As in the first experiment, mock jurors who saw the computer animation rated the relative importance of the computer-animated display as less important than all other evidence, again reflecting mock jurors’ lack of awareness into what factors affected their decisions. Together, the results of the two experiments by Kassin and Dunn (1997) suggest that computer-animated demonstrative evidence can aid in the comprehension of trial facts, as reflected in verdicts more in-line with the physical evidence in Experiment 1, but computer-animated demonstrative evidence may also raise admissibility concerns, as reflected in the biasing influence of the animations on verdicts in spite of the physical evidence in Experiment 2. Thus, Kassin and Dunn’s findings provide support for both perspectives regarding demonstrative evidence. Regarding establishing a persuasive argument in the trial setting, computer-animated demonstrative evidence may provide for a more effective presentation. Regarding concerns over the potential for demonstrative evidence to unduly influence the jury, the prejudicial effect of computer-animated simulations may substantially outweigh any probative value of the evidence. Given that the biasing versions of computer animation in Experiment 2 were inconsistent with the physical evidence in some conditions, opposing counsel would have grounds to object to the admittance of the demonstrative evidence. Two more recent studies have found mixed results regarding the persuasiveness of demonstrative evidence using different cases. Bennet et al. (1999) used a comparative negligence, personal injury case to investigate the effects of computer simulations on mock jurors’ decisions. The case involved a dispute over a traffic accident in which a teenage girl was seriously injured as a result of a collision of her car with a commercial food delivery truck. The girl made a left turn at a dangerous intersection at the foot of a hill. At issue was the speed of the delivery truck right before the collision. The plaintiff’s attorney introduced a series of computer simulations that depicted the delivery truck’s distance from the injured party’s car at various rates of speed. The facts of the case, as well as the computer simulations, were based on an actual case from Indiana. Regardless of whether mock jurors deliberated in groups (Experiment 1) or made individual decisions (Experiment 2), the computer simulations failed to affect apportionment of fault or damage awards. Bennett et al. (1999) speculated that the

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computer simulations may have lost their power to influence mock jurors’ decisions because the computer simulations were “lost in the noise” of the subsequent testimony and evidence. This provided the rationale for Experiment 2: To test the influence of the computer simulations right after they were presented. Despite the relative immediacy of the computer simulations, they still failed to affect mock jurors’ decisions. Although a number of speculative explanations for the null results could be posited, Experiment 2 ruled out the possibility that mock jurors simply did not find the computer simulations credible. Exit interviews indicated that mock jurors generally felt the computer simulations were well made and reflected high quality. Bennett et  al. (1999) also speculated that based on Pennington and Hastie’s (1986, 1992) Story Model, jurors construct a story based on the testimony and evidence that may make computer-animated displays superfluous, especially in cases where the jurors have preexisting knowledge. Testing this very assumption, Dunn et  al. (2006) examined the effectiveness of computer-animated displays in two different civil cases. In their first experiment, Dunn et  al. used a civil trial involving a plane crash that killed the pilot of a single-engine plane. The pilot’s wife was suing the manufacturer of an electronic transmitting device that transmits the location of the plane in the event of a crash on the grounds that the device was improperly secured in the plane. As a result of the loss of the device, the pilot, who had survived the crash, died of exposure. Dunn et al. factorially crossed the type of demonstrative evidence used by the plaintiff and the defendant, comparing computer animation with static diagrams of the same information. Thus, Dunn et  al. used a 2 (plaintiff’s visual display: computer-animation vs. diagram) × 2 (defendant’s visual display: computer-animation vs. diagram) design. The plaintiff’s demonstrative evidence focused on the defects in securing the electronic transmitting device, whereas the defendant’s animation focused on the severity of the crash. The results of the first experiment by Dunn et al. (2006) indicated that the computer animation was successful in influencing mock jurors’ verdicts. Although the overall verdicts were skewed in favor of the defendant, mock jurors who saw the plaintiff’s computer animation were more likely to find in favor of the plaintiff if the defendant used diagrams (68%) rather than computer animation (26%). In addition, mock jurors found the plaintiff’s version of events easier to visualize when the plaintiff used a computer animation rather than a diagram, suggesting that the greater persuasiveness of the computer animation was due to the relative ease of picturing the plaintiff’s case. In addition, those mock jurors who reported finding it difficult to visualize the plane crash were significantly more influenced by the animation than mock jurors who had no difficulty in visualizing the plane crash. Similar to Kassin and Dunn’s (1997) findings, mock jurors rated the importance of the computer animation below other items of evidence in making their decisions, although ratings for computer animation were greater than static diagrams. As a partial replication of the Bennett et al. (1999) study, Dunn et al. (2006) used a car collision case in Experiment 2. The details of the case were very similar to the case used by Bennett et al. A commercial truck collided with a car making a turn from a parking lot, killing the driver of the car. The decedent’s wife was suing

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the company of the truck driver, claiming the driver was speeding at the time of the collision. In their defense, the defendant claimed that the driver did not stop before exiting the parking lot. Dunn et al. used the same design in Experiment 2 as in Experiment 1, factorially comparing plaintiff’s and defendant’s type of demonstrative evidence: computer animation vs. static diagrams. The animations consisted of three different perspectives of the collision combined with a fourth animation depicting the plaintiff’s or defendant’s version of the events. The plaintiff’s version showed the car stopped before leaving the parking lot, and the defendant’s version showed the car leaving the parking lot without stopping. As in Bennett et al. (1999), the results failed to indicate any persuasive effect of the animations over the static diagrams. Dunn et al. (2006) pointed out that between experiments, mock jurors were better able to visualize the circumstances of the car collision than the plane crash, suggesting that the computer animations were more effective with scenarios that were not part of mock jurors’ preexisting knowledge. In other words, when jurors could already visualize the events in a particular case, the use of visually dynamic demonstrative evidence may have offered little that was not already known. However, in the case of the plane crash, mock jurors may have relied more on the computer-animated display to help guide their reconstruction of the event because they had no preexisting knowledge to work from. An alternative hypothesis proposed by Dunn et al. was that mock jurors in the car collision case may have been more skeptical of the computer animation because it depicted contested facts (i.e., whether the plaintiff stopped before proceeding from the parking lot) rather than agreed-upon facts in the plane crash case (i.e., the location of the electronic transmitter device). The researchers were unable to verify either hypothesis because no dependent measures of the familiarity of the scenarios represented by the cases or the level of mock jurors’ skepticism of the computer animation was included in the study. Summary:  Together, the four empirical studies indicate that the pervasive belief of trial lawyers in the persuasiveness of visually dynamic demonstrative evidence may not be fully warranted. However, empirical research on these issues has just begun. Nonetheless, these studies offer some promising leads for future research. Both Kassin and Dunn (1997) and Dunn et al. (Experiment 1, 2006) have shown evidence for the enhanced persuasiveness of computer animation. However, the reasons for the enhanced persuasiveness of computer-animated demonstrative evidence are not entirely clear. Likewise, future research will need to uncover potential mediator and moderator variables of visually dynamic demonstrative evidence. Experiment 2 by Dunn et  al. offers one such moderator variable: Computer-animated displays may be more effective in trials in which jurors have little preexisting knowledge. The visualization offered by the animation may allow jurors to incorporate the portrayed point of view more readily in their understanding of the event. This possible moderator deserves more direct and focused research. Other psycholegal commentators (Bornstein & Nemeth, 1999; Feigenson & Dunn, 2003; Wiggins, 2006) have called for greater research on advances in courtroom technology, in general, and on visually dynamic demonstrative evidence, specifically.

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To the trial consultant assisting the trial lawyer, an analysis of how familiar jurors may be with the primary details of the case seems warranted before considering the use of computer-animated displays, especially given the potential cost of the technology. As seen in Fishfader et  al. (1996), Bennett et  al. (1999), and Dunn et  al. (Experiment 2, 2006), videotape re-creations, computer-simulations, and computeranimations may not be more effective in influencing a jury than more traditional means of courtroom persuasion. Trial consultants would best weigh the lack of any enhanced persuasion with the cost in time and money of producing visually dynamic displays. A distinction that future research will need to address is the difference between computer-generated presentations that merely animate a sequence of events vs. simulations or re-creations that attempt to model probabilistically the outcome of events based on known physical evidence (Bennett et al., 1999; McAuliff et al., 2003; Wiggins, 2006). Enhanced persuasion may come more from the latter than the former.

Cognitive and Social Psychological Mediator and Moderator Variables Using the research framework proposed by Feigenson & Dunn (2003), future research on visually dynamic demonstrative evidence will need to investigate mediator and moderator variables suggested from basic cognitive and social processes. The following section of this chapter addresses these possible mechanisms. The assumed effectiveness of visually dynamic demonstrative evidence can be theoretically supported with cognitive and social psychological research concerning the influence of vivid information on decision making. Generally, vivid information is defined as being “(a) emotionally interesting, (b) concrete and imagery-provoking, and (c) proximate in a sensory, temporal or spatial way” (Nisbett and Ross, 1980, p. 45). Several juror-simulation studies (Bell & Loftus, 1985, 1988, 1989; Reyes, Thompson, & Bower, 1980; Wilson, Northcraft, & Neale, 1989) have found greater influence of vivid information on mock jurors’ decisions than relatively “pallid” information. Typically, these studies have compared vivid vs. pallid verbal testimony as presented in a written trial transcript. For example, Wilson et al. (1989) used a civil trial involving a dispute between a contractor and a subcontractor in the construction of a building. The contractor’s testimony was varied to be more vivid and imagery provoking through the use of relatively more concrete adjectives and details (e.g., “spiderweb of cracks” vs. “network of cracks”). Of particular interest, Wilson et al. found that vivid information was more persuasive to mock jurors when the information load was high rather than low. In other words, mock jurors were only affected by vivid testimony when they were given substantially more information to consider. In addition, according to mock jurors’ subjective reports, Wilson et al. found that the vivid version of the contractor’s testimony evoked greater imagery than did the more pallid testimony. Thus, the enhanced persuasiveness of vivid information may occur through a relatively greater ability to visualize information.

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The ability to visualize information, especially in cases where jurors do not have preexisting knowledge, may suggest when visually dynamic demonstrative evidence is most likely to be effective. Social psychological research indicates that imagining various scenarios increases people’s subjective judgments of the likelihood of those events occurring (Gregory, Cialdini, & Carpenter, 1982; Sherman, Cialdini, Schwartzman, & Reynolds, 1985). Likewise, basic cognitive research has indicated that imagery-provoking stimuli (e.g., concrete vs. abstract words and pictures vs. words) are more memorable than stimuli low in imagery (Paivio, 1966, 1969; Paivio & Csapo, 1969, 1973; Paivio, Philipchalk, & Rowe, 1975). Visually dynamic demonstrative evidence may be more persuasive than oral testimony or static diagrams by influencing jurors’ beliefs about how an event occurred. As noted above, Dunn et al. (2006) argued that the difference in the effectiveness of the computer-animated displays between their two experiments may have been due to the participants’ preexisting knowledge of the scenarios represented by the cases. This may have also been the reason for the null results of Bennett et  al. (1999). Past research has indicated that mock jurors’ preexisting knowledge of crime categories interacts with their decision making (Bornstein & Rajki, 1994; Smith, 1991, 1993; Smith & Studebaker, 1996). If jurors construct a story of “what took place” from the presentation of evidence and testimony in a trial, as Pennington and Hastie’s (1986, 1992) Story Model suggests, jurors may be more influenced by visually dynamic demonstrative evidence that provides a narrative structure to understand the event in dispute. Future research will need to determine to what extent visually dynamic demonstrative evidence provides a conceptual framework for mock jurors to understand a complex or unfamiliar case (see Feigenson & Dunn, 2003 for a more extensive discussion). The distinction between mere animation and simulation/reenactment may be particularly relevant to this issue, since simulation/reenactment attempts to recreate the event in question based on known facts. Another issue that will need to be addressed is the difference in the emotional content of the demonstrative evidence. In using real actors, reenactments may create a stronger emotional effect than computer animation that relies on simpler images (e.g., stick figures as used by Kassin & Dunn, 1997). At any rate, simulations and reenactments, whether using simplistic figures or live actors, go beyond the mere animation of known events. Instead, they provide an opportunity for attorneys to present their theories of what likely happened based on known physical evidence. The question whether jurors are more likely to incorporate visually dynamic demonstrative evidence into their understanding of a case also seems to implicate individual difference variables with regard to use of systematic vs. heuristic processing (Feigenson & Dunn, 2003; McAuliff et al., 2003). The reliance on more systematic vs. heuristic processing might predict jurors’ skepticism of certain technologies – they may be more vigilant in perceiving attempts at persuasion. Conversely, jurors who rely more on heuristic processing may perceive arguments as more credible if they are associated with a highly professional visual display and may be more willing to accept the version of events depicted. However, Dunn et al. (2006) failed to find a relationship between participants’ belief in the credibility of various media news

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sources (e.g., newspapers, television, internet, etc.) and the effectiveness of the computer-animated display. The systematic/heuristic processing distinction is similar to the social psychological concept of “need for cognition.” Need for cognition refers to the idea that people differ in the amount of deliberative thinking they like to engage in (Myers, 2008). Jurors high in need for cognition would be more likely to use systematic processing, whereas jurors low in need for cognition would be more likely to use heuristic processing. Given the lack of a relationship between mock jurors’ perceptions of different media and the effectiveness of the computer animation in the Dunn et  al. (2006) study, speculation as to the possible mediating effect of jurors’ knowledge and experience with computer presentations and animations is hard to ascertain. On the one hand, jurors having more experience with computer presentations may be more open to such media. On the other hand, they may be less wooed by the technological sophistication of such presentations. Jurors with less experience may be more dazzled by such presentations, and if using heuristic processing, may find the use of such visually dynamic media more credible through enhanced perceptions of expertise. Summary:  The current state of whether and how visually dynamic demonstrative evidence affects juror decision making is marked as much by calls for additional research as it is by actual empirical research (Bornstein & Nemeth, 1999; Feigenson & Dunn, 2003; McAuliff et al., 2003; Wiggins, 2006). However, the work of Bennett et al. (1999), Fishfader et al. (1996), Kassin & Dunn (1997), and Dunn et al. (2006) provide promising leads. The theoretical basis for the heightened persuasion of visually dynamic demonstrative evidence is solid. Visually dynamic displays are likely to be more vivid presentations than either static displays or oral testimony. The use of simulations or reenactments implicates visualization and the relationship between imagery and beliefs about the likelihood of what may have occurred in a disputed event. In particular, simulations and reenactments might interact with jurors’ preexisting knowledge to establish a narrative structure of a case.

Conclusions: The Most Effective Use of Visually Dynamic Demonstrative Evidence Hard-and-fast rules on the use of visually dynamic demonstrative evidence would be presumptuous at this point given the paucity of empirical research. Future research from cognitive and social psychologists should help elucidate under what conditions visually dynamic demonstrative evidence persuades jurors. The results from both Kassin and Dunn (1997) and Dunn et al. (2006) suggest that computeranimated displays may enhance persuasion in the courtroom, providing some support for the anecdotal reports and widely held beliefs on the effectiveness of such displays. However, given the null findings of Fishfader et al. (1996) and Bennett et al. (1999), our understanding of when visually dynamic demonstrative evidence might be most effective is lacking.

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As suggested by Dunn et  al. (2006), visually dynamic displays may be most effective in cases where jurors have little preexisting knowledge. The persuasiveness of the demonstrative evidence may stem from its ability to provide a coherent narrative structure to the case in dispute. Given the findings of Wilson et al. (1989), visual displays may be most effective in complex cases involving relatively unfamiliar events. Concerning the admissibility issues with demonstrative evidence and the potential for prejudice (Bornstein & Nemeth, 1999), advocates should strive to create visual displays that reflect the undisputed facts of a case. Advocates who wish to jump on the technological bandwagon may want to be conservative in their approach; until empirical research better defines the boundary conditions of when visually dynamic demonstrative evidence enhances persuasion, trial lawyers run the risk of wasting time and money on ineffective displays. Trial consultants would do well to exercise caution in recommending to trial lawyers the use of any of the visually dynamic demonstrative displays discussed in this chapter. Given the overall lack of research and the difficulty in understanding the reasons why a few studies have found enhanced persuasion of visually dynamic displays, trial consultants should remain skeptical of the persuasive appeal of these techniques, especially in light of the considerable cost the use of such techniques would incur.

References Bell, B. E., & Loftus, E. F. (1985). Vivid persuasion in the courtroom. Journal of Personality Assessment, 49, 659–664. Bell, B. E., & Loftus, E. F. (1988). Degree of detail of eyewitness testimony and mock juror judgments. Journal of Applied Social Psychology, 18, 1171–1192. Bell, B. E., & Loftus, E. F. (1989). Trivial persuasion in the courtroom: The power of (a few) minor details. Journal of Personality and Social Psychology, 56, 669–679. Bennett, R. B., Leibman, J. H., & Fetter, R. E. (1999). Seeing is believing; Or is it? An empirical study of computer simulations as evidence. Wake Forest Law Review, 34, 257–294. Bornstein, B. H., & Nemeth, R. J. (1999). Jurors’ perception of violence: A framework for inquiry. Aggression and Violent Behavior, 4, 77–92. Bornstein, B. H., & Rajki, M. (1994). Extra-legal factors and product liability: The influence of mock jurors’ demographic characteristics and intuitions about the cause of an injury. Behavioral Sciences and the Law, 12, 127–147. Carney, B., & Feigenson, N. (2004). Visual persuasion in the Michael Skakel trial: Enhancing advocacy through interactive media presentations. Criminal Justice, 19, 22–35. Douglas, K. S., Lyon, D. R., & Ogloff, J. R. P. (1997). The impact of graphic photographic evidence on mock jurors’ decisions in a murder trial: Probative or prejudicial? Law and Human Behavior, 21, 485–501. Dunn, M. A., Salovey, P., & Feigenson, N. (2006). The jury persuaded (and not): Computer animation in the courtroom. Law & Policy, 28, 228–248. Federal Judicial Center and National Institute for Trial Advocacy. (2001). Effective use of courtroom technology: A judge’s guide to pretrial and trial. Washington, D.C.: Federal Judicial Center. Federal Rules of Evidence (2009). Washington, D.C.: Government Printing Office. Feigenson, N. (2006). Too real? The future of virtual reality evidence. Law & Policy, 28, 271–293.

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Feigenson, N., & Dunn, M. A. (2003). New visual technologies in court: Directions for research. Law and Human Behavior, 27, 109–126. Fishfader, V. L., Howells, G. N., Katz, R. C., & Teresi, P. S. (1996). Evidential and extralegal factors in juror decisions: Presentation mode, retention, and level of emotionality. Law and Human Behavior, 20, 565–572. Gregory, W. L., Cialdini, R. B., & Carpenter, K. M. (1982). Self-relevant scenarios as mediators of likelihood estimates and compliance: Does imagining make it so? Journal of Personality and Social Psychology, 43, 89–99. Kassin, S. M., & Dunn, M. A. (1997). Computer-animated displays and the jury: Facilitative and prejudicial effects. Law and Human Behavior, 21, 269–281. Lederer, F. I. (2004). Introduction: What have we wrought? William and Mary Bill of Rights Journal, 12, 637–648. McAuliff, B. D., Nemeth, R. J., Bornstein, B. H., & Penrod, S. (2003). Juror decision-making in the twenty-first century: Confronting science and technology in the court. In D. Carson & R. Bull (Eds.), Handbook of psychology in legal contexts (2nd ed.). West Sussex: Wiley. Myers, D. G. (2008). Social psychology (9th ed.). New York: McGraw-Hill. Nisbett, R. E., & Ross, L. (1980). Assigning weights to data: The “vividness criterion”. In R. E. Nisbett & L. Ross (Eds.), Human inference: Strategies and shortcomings of social judgment. Englewood Cliffs: Prentice-Hall. Paivio, A. (1966). Latency of verbal associations and imagery to noun stimuli as a function of abstractness and generality. Canadian Journal of Psychology, 20, 378–387. Paivio, A. (1969). Mental imagery in associative learning and memory. Psychological Review, 76, 241–263. Paivio, A., & Csapo, K. (1969). Concrete image and verbal memory codes. Journal of Experimental Psychology, 80, 279–285. Paivio, A., & Csapo, K. (1973). Picture superiority in free recall: Imagery or dual coding? Cognitive Psychology, 5, 176–206. Paivio, A., Philipchalk, R., & Rowe, E. J. (1975). Free and serial recall of pictures, sounds, and words. Memory & Cognition, 3, 586–590. Pennington, N., & Hastie, R. (1986). Evidence in complex decision making. Journal of Personality and Social Psychology, 51, 242–258. Pennington, N., & Hastie, R. (1992). Explaining the evidence: Tests of the story model for juror decision making. Journal of Personality and Social Psychology, 62, 189–206. Reyes, R. M., Thompson, W. C., & Bower, G. H. (1980). Judgmental biases resulting from differing availabilities of arguments. Journal of Personality and Social Psychology, 39, 2–12. Sherman, S. J., Cialdini, R. B., Schwartzman, D. F., & Reynolds, K. D. (1985). Imagining can heighten or lower the perceived likelihood of contracting a disease: The mediating effect of ease of imagery. Personality and Social Psychology Bulletin, 11, 118–127. Smith, V. L. (1991). Prototypes in the courtroom: Lay representations of legal concepts. Journal of personality and social psychology, 61, 857–872. Smith, V. L. (1993). When prior knowledge and law collide: Helping jurors use the law. Law and Human Behavior, 17, 507–536. Smith, V. L., & Studebaker, C. A. (1996). What do you expect?: The influence of people’s prior knowledge of crime categories on fact-finding. Law and Human Behavior, 20, 517–531. Wiggins, E. C. (2006). The courtroom of the future is here: Introduction to emerging technologies in the legal system. Law and Policy, 28, 182–191. Wilson, M. G., Northcraft, G. B., & Neale, M. A. (1989). Information competition and vividness effects in on-line judgments. Organizational Behavior and Human Decision Processes, 44, 132–139.

Part III

Specific Interdisciplinary Topics in Trial Consulting

Chapter 11

Pretrial Publicity and the Jury: Research and Methods Lisa M. Spano, Jennifer L. Groscup, and Steven D. Penrod

Research conducted over the past 40 years demonstrates that pretrial publicity (PTP) can negatively influence jurors’ perceptions of parties in criminal and civil cases receiving substantial news coverage. Changes in the news media over the same period of time have made news coverage more accessible to the public as traditional media including newspapers, television, and radio are complemented with new media such as the Internet. The development of specialized media services such as Court TV has further complicated the task of finding jurors who have not been exposed to potentially biasing PTP. In short, contemporary media pose growing challenges to those involved in trials, especially highly publicized cases. This chapter provides an overview of research findings concerning PTP effects on juror decision making and a consideration of methods that can be used to demonstrate PTP effects in particular cases. We begin by considering leading cases from the 1960s to 1970s, which established the most important legal precedents governing legal responses to PTP and more recent cases in which PTP has posed challenges to the courts. We then examine empirical research that demonstrates the nature and extent of PTP effects – drawing on experimental studies, case studies, content analysis of PTP, and meta-analysis. Finally, we examine the combinations of research methods that make the most compelling case concerning the general biasing effects of PTP and the biases that can be detected in specific cases.

PTP and the Courts Under the Sixth Amendment of the US Constitution, and the Due Process Clause of the Fifth Amendment, American citizens are guaranteed fairness in criminal trials. At the same time, the right to freedom of speech, which governs both written and

L.M. Spano (*) PhaseOne Communications, 6080 Center Drive, Suite 450, Los Angeles, CA 90045, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_11, © Springer Science+Business Media, LLC 2011

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spoken words by individuals as well as by the press, is guaranteed under the First Amendment. In the majority of trials, Americans’ rights under the First and Sixth Amendments are ensured. However, in cases with extensive media coverage, it is possible that a large proportion of the community in the trial venue has formed biased opinions about the guilt of a defendant based on information reported by the press. Oftentimes, this information is biased against a defendant and may include a wide range of information impugning the character of the defendant, recounting the defendant’s prior criminal history and the existence of putatively incriminating evidence. As a result, the First and Sixth Amendments may be at odds with one another in cases that have received substantial media coverage. The American judicial system has struggled with problems associated with negative PTP for nearly two centuries, starting in 1807 when the former vice president of USA Aaron Burr was arrested on charges of treason against his country. In his trial, the effects of news coverage on a venireperson’s predispositions concerning Burr’s guilt were obvious. When jury selection for the trial began, Burr’s attorneys argued that the public had been so influenced by prejudicial statements made against him that the likelihood of finding an impartial jury was highly improbable. To illustrate this point, consider the following excerpt, which was written about one of the potential jury members from the Burr trial: [H]e had formed and expressed some opinion unfavorable to Colonel Burr; he had principally taken his opinions from newspaper statements; and he had not, as far as he recollected, expressed an opinion that Colonel Burr deserved hanging; but that his impression was, that he was guilty (as cited in Abramson, 2000, p. 40).

Ultimately, Chief Justice Marshall disqualified any individual who had expressed a positive opinion on any “essential” element of the crime. However, he found that jurors would not be disqualified merely on the basis of having been exposed to a substantial amount of information about the case or because they possessed opinions on issues other than those which were “essential” elements of the trial. He further opined that a person did not lose his ability to be impartial solely as a result of reading the newspaper (Abramson, 2000). Although courts sometimes acknowledged the potential harm associated with negative PTP on jurors’ judgments of defendant guilt, it was not until the 1960s and 1970s when significant decisions pertaining to PTP were made. During this time period, a series of Supreme Court cases involving high levels of publicity were decided. These decisions paved the way to more stringent guidelines that directly spoke to the problems with and responses to PTP. In the first of these cases, Irvin v. Dowd (1961), the Supreme Court ruled that a judge should grant a defendant’s motion for a change of venue if that defendant’s right to a fair trial by an impartial jury was jeopardized due to negative PTP, as demonstrated during the voir dire process. Two years later, in Rideau v. Louisiana (1963), the Supreme Court focused on the concept of “inherently prejudicial” PTP. Regardless of the voir dire process, it was concluded that due process required a change of venue when highly prejudicial PTP – as determined by the substance, quantity, and distribution of that PTP to potential jury members – created an inherently prejudicial atmosphere. Similarly, the Supreme Court in Murphy v. Florida (1975) held that a defendant could

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challenge the court’s denial of a change of venue when, and if, during individual voir dire potential jury members exhibited “actual” or “inherent prejudice” as a result of PTP. This “totality of the circumstances” test is presently used in criminal courts and places the burden on the defendant to prove that jury members possess preconceived opinions of defendant guilt that preclude the possibility of a fair trial. In Sheppard v. Maxwell (1966), another case involving inherently prejudicial PTP, the Supreme Court reversed the conviction of Dr. Sam Sheppard as a result of massive inflammatory media accounts of this case. The court stated: We agree, as did the Court of Appeals, with the findings in Judge Bell’s opinion for the Ohio Supreme Court: Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. . . In this atmosphere of a ‘Roman holiday’ for the news media, Sam Sheppard stood trial for his life (p. 342).

Furthermore, the court indicated that more stringent measures serving to diminish the likelihood for potential prejudicial preconceptions of a defendant must be followed: …there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences (p. 362).

Despite language in the 1960s and 1970s cases suggesting that courts should be attentive to the possibility of PTP-induced bias, criminal defendants may still confront significant resistance to efforts to demonstrate such bias. In the case of Mu ‘Min v. Virginia (1991), the defense moved for change of venue as well as for individual voir dire after information about the defendant’s prior criminal record and indications that Mu’Min had confessed to killing Gladys Nopwasky was published in various news media. Even though 8 of the 12 seated jurors admitted they had been exposed to stories containing this prejudicial information, the trial judge did not grant the defense motions. The Supreme Court affirmed this decision. The Court held that under the Due Process Clause, it is not required to query prospective jurors about the content of the PTP to which they were exposed. In the end, the defendant was found guilty of capital murder and was sentenced to death.

PTP and the Media A number of media content studies have underscored the potentially problematic nature of crime reporting for trial fairness. Simon and Eimermann (1971) conducted a media content analysis over a 2-month period looking at crime reports in the media.

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They discovered that newspaper coverage on crimes was more prevalent when the crime was serious in nature. Further, their results suggested that media reports were likely to include information biased against the defendant including the defendant’s prior criminal record or an alleged confession to the crime. Similarly, in their investigation of crime-related media reports, Tankard, Middleton, and Rimmer (1979) reported that a little more than two thirds of newspaper stories that were analyzed contained at least one biasing statement against the defendant. This information included items such as negative statements about the defendant’s character, information inferring the defendant’s guilt, information about the evidence, and reports about the witnesses. They further observed that media reports were also likely to include prejudicial information such as an alleged confession to the crime or biasing statements about the prior criminal record of the defendant. The potential for PTP to taint jury pools is possibly greater today than it was in the 1960s and 1970s when the courts first implemented safeguards to prevent biased juries in highly publicized cases. For example, up-to-date news coverage is readily accessible to the public: 24 h news networks such as CNN, MSNBC as well as local 24-h news stations (e.g., New York One) are watched by large portions of the public, and there are cable network channels such as Court TV that are dedicated to coverage of the judicial system and high-profile trials. Similarly, national news magazines such as Time or Newsweek often report on highly publicized cases as do many radio talk shows aired across the country. In addition, online sources such as Google and Yahoo enable Internet users to locate up-to-date and detailed news reports on criminal and civil trials. Furthermore, growing numbers of people use online newspapers, which complement printed newspapers with more detailed and updated information. Trial motions involving the negative effects of PTP on a defendant’s right to a fair trial as guaranteed under the Sixth Amendment are commonplace and continue to increase with the passage of time. In the 1980s, it was estimated that at least 3,100 defendants claimed that they could not be tried in a fair manner locally due to the significant amounts of negative PTP surrounding their case (Minow & Cate, 2001). Replicating the methods used by Minow and Cate, we estimate the number of defendants between the years 1996 and 2006 claiming that a fair trial was impossible as a direct result of the omnipresent mass media surrounding their trial had increased to over 7,000.1 Of course, one can readily find contemporary cases that illustrate PTP problems. In the recent Enron scandal, there were several requests for criminal trials to be

 This figure is based on searches in the NEXIS newspaper and wire service databases using the following search terms: (No or Not or Impossible or Unlikely or Prejudic! or Bias!) w/ 25 (((Fair or Constitution!) w/ 4 trial or hearing) or ((Impartial or Bias! or Prejudic!) w/ 4 (Jury or Juror))) w/ 25 (Publicity or Report! or ((Media or Press) w/ 4 (Attention or Coverage))) and Date([as appropriate]). The figure may confidently be assumed to underestimate the actual number of reports because not all national newspapers and services were covered by these databases during the early 1980s. Moreover, it is reasonable to anticipate that far more claims would be reported by regional and local press – most of which are not included in databases (Minow & Cate, 2001).

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moved from Houston due to extensive negative PTP (Flood, 2004). Ex-Enron Chief Executive Officer Jeff Skilling and former Chief Accounting Officer Rick Causey are among the defendants whose lawyers argued “fervent, inflammatory, and demonstrably prejudicial” media surrounding the case as the main reason for the change of venue request (Flood). They further asserted that “citizens of this venue and the media that serve them have erected metaphoric and psychological divides between the ‘evil’ executives at Enron and the ‘good’ people they betrayed” (Flood). One headline in an article concerning Enron defendants in the Houston Chronicle read: “Verdict from Houston residents polled: guilty” (Fowler, 2004). Despite the fact that over 80% of telephone respondents from the Houston area believed that the Enron defendants were guilty, the judges in those trials were reluctant to grant the defense requests for changes of venue. In extremely publicized cases, a judge may recognize the media’s potential to influence jurors’ perceptions of a defendant but may fail to provide safeguards to protect the defendant. In the recent trial of Scott Peterson, Judge Delucchi was well aware of the media coverage surrounding this trial but denied the defense’s motion to move the penalty phase to a new venue. He also denied the defense request for a new jury during the penalty phase (http://www.CNN.com, accessed November 22, 2004). During this time, he rightly questioned, “Where could I send this case in the state of California that hasn’t been inundated with the media coverage?” This raises the question whether or not in today’s media-saturated society it is possible for a defendant to receive a trial by a fair and impartial jury as guaranteed by the Sixth Amendment while coexisting with a free press that disseminates polarized views to society.

PTP and Attorneys The decision in Sheppard v. Maxwell (1966) suggested a need for measures controlling the information disseminated by the press. However, courts have been very reluctant to restrict the press’s coverage of and access to trails. Following the Sheppard decision, the Supreme Court ruled several times that restraining the press from freely covering a case was an unacceptable violation of the First Amendment right of free press. For example, in Nebraska Press Association v. Stuart (1976), a gag order preventing the publication of a confession was overturned, and in Richmond Newspapers v. Virginia (1980), the Supreme Court concluded that criminal trials could not be closed to either the press or the general public. Although courts are prevented from restricting the press in any manner during a trial, they have the potential to discourage or to prevent the attorneys from providing sensitive information about their cases to the press. The American Bar Association (ABA, 2004) as well as the US Department of Justice (28 C.F.R. 50.2) has tried to address the problem of attorneys providing case information to the press. They have identified several types of information that they believe should not be made public prior to the start of a trial. In the aftermath of some of the major cases involving PTP issues in the 1960s, as discussed above, the

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ABA established the Project on Standards for Criminal Justice (1968) (ABA, 1992). In their guidelines, it was suggested that an attorney refrain from making extrajudicial statements if it was known or reasonably known that these statements would have a substantial likelihood of prejudicing a criminal proceeding. The ABA has instituted Model Rules of Professional Conduct that also addressed issues concerning PTP (ABA, 2004). Under these Rules, attorneys are prohibited from making extralegal statements via public communication if it is known or reasonably known that the information would have a substantial likelihood of materially prejudicing an adjudicative proceeding. The following types of information have been identified as being likely to create prejudice in the trial venue and adhere to revisions made through the year 2006: (1) the character, credibility, reputation, or criminal record of the defendant, or the expected testimony of a witness, (2) the possibility of a guilty plea to the offense or statements given by the defendant including admissions of guilt or the refusal to make a statement, (3) the defendant’s performance on any type of examination such as a polygraph test or a mental status test, (4) opinions about the accused’s guilt or innocence, (5) information an attorney knows or reasonably should know is likely to be inadmissible as evidence in a trial, and (6) if the fact that a defendant has been charged with a crime, a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty must accompany that fact. These six types of information in particular were identified as likely to prejudice the general public against a defendant because they encourage a presumption of guilt (Imrich, Mullin, & Linz, 1995). There is little research on adherence to these guidelines or their effectiveness in reducing the publication of potentially biasing PTP. However, the research that has investigated the media’s response to these guidelines indicates that they are not achieving their intended goal. Imrich et  al. (1995) investigated the prevalence of nine specific types of potentially prejudicial statements related to the six types of information proscribed by the ABA by studying the content of reporting on criminal suspects in 14 different newspapers. The media coverage contained at least one ABA-proscribed statement about 27% of criminal suspects who were discussed in the various newspapers that were analyzed. News reports frequently contained information about the defendant’s prior criminal record and alleged confession statements. The cases about which an ABA-proscribed statement was made were likely to have reached a national level and involved serious charges. Thus, despite the efforts to prohibit potentially prejudicial information from reaching the general public via the press, it appears that these guidelines did not eliminate newspaper media reporting information deemed prejudicial (Imrich et al.). Dixon and Linz (2002) expanded this investigation to television coverage of trials. They coded for the same nine statements related to the ABA guidelines as Imrich et al. (1995) in television news programs in the Los Angeles area. Nineteen percent of the stories contained a statement associated with a criminal defendant that was proscribed by the APA. However, there were few explicit statements identifying the source of the information as the attorneys. The authors attributed the differences between the television and print media studies to the format of the

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media and not to any change in the behavior of the attorneys or of the press. These studies indicate that prejudicial information about future and ongoing cases continues to be presented in the media despite the ABA guidelines. Clearly, the overriding implicit assumption supporting all of the ABA guidelines is that some types of media information are particularly prejudicial to a case. Research investigating the validity of several of these assumptions is presented next.

Empirical Research on PTP Effects Experimental Studies of PTP Effects in Criminal Cases The most common methodology used to assess the effects of PTP on juror perceptions of defendant guilt uses laboratory or experimental methods. Participants are typically either college students or potential jurors from the community. In experimental studies, participants are randomly assigned to receive various levels and types of PTP before making decisions about the case and about the defendant. All other aspects of the trial are held constant, giving the researchers control over what is presented to the participants and allowing for causal interpretability. As a typical example, researchers will present different forms of PTP to mock jurors before presenting a trial simulation in the format of a written summary or video presentation. More complex designs may incorporate voir dire, judicial instructions, and group deliberations. Statistical analyses examine the effects of the manipulated PTP on dependent measures such as evidence evaluations, perceptions of witnesses, perceptions of the defendant, and final verdict decisions. A number of social scientists have conducted experimental studies to assess whether or not PTP has the ability to influence the way jurors make decisions in both criminal and civil cases. Although some research suggests that jurors are insensitive to PTP effects (Carroll et al. 1986), the majority of past research conducted on this topic has demonstrated that prejudicial PTP in criminal cases can influence perceptions of defendant likeability, sympathy toward the defendant, perceptions of defendant criminality, judgments of pretrial guilt, and, most importantly, final verdicts (Studebaker & Penrod, 1997). These findings validate the courts’ concerns over PTP effects and provide some insight into the forms of PTP that are most likely to produce biased prejudgments. The findings further underscore the conflicts associated with protecting a defendant’s Sixth Amendment right while maintaining a free press. Tans and Chaffee (1966) were among the first to experimentally demonstrate that PTP biased against a defendant was related to mock jurors’ perceptions of defendant guilt. In their study, participants read fictitious newspaper articles about three diverse crimes. Each story contained different types of information including the presence of a confession to the crime or a denial by the suspect, information about the arrest or release of the suspect, and favorable or unfavorable

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statements made by the prosecuting attorney. After reading the fictitious stories, participants answered several dependent measures regarding the defendant, including a measure assessing defendant guilt. Participants were more likely to render guilty verdicts when all three types of information were biased against the defendant. These results suggest that jurors hearing more negative information about a defendant prior to the trial are also more likely to hold biased opinions concerning the guilt of the defendant. Early research on PTP demonstrated that negative PTP has the potential to bias legal decision making at trial against the defendant. The subsequent research continued to investigate the effects of negative PTP and produced analogous findings. Much of this research concerned the biasing effect of PTP that contained information about the defendant that may be inadmissible at trial, such as the defendant’s character or prior criminal record. For example, several studies have investigated the effect of PTP indicating that the defendant had a prior criminal record and had confessed to the crime in the current trial. Participants in these studies who were exposed to this type of PTP were more likely to persistently judge the defendant guilty (DeLuca, 1979; Hvistendahl, 1979; Padawer-Singer, Singer, & Singer, 1977). Information about the defendant’s gang membership (Hvistendahl, 1979) and the results of a defendant’s lie detector test (DeLuca, 1979) have also been investigated and have been shown to create a bias toward guilty judgments against the defendant. Finally, PTP indicating that the defendant has a bad character was found to be particularly powerful in creating bias against the defendant (Otto, Penrod, & Dexter, 1994). Across many studies of this type, PTP containing substantive negative information about the defendant has created an antidefendant bias, and that bias persists through the trial despite the presentation of (potentially mitigating) trial evidence. Following this early research, questions arose whether biasing PTP effects were produced by the introduction of the content of the PTP information or by the emotional tenor of the PTP information. The potentially differential effects of emotionally laden versus purely factual PTP were investigated in one of the most comprehensive PTP experiments (Kramer, Kerr, & Carroll, 1990). Before being presented with evidence, mock jurors were exposed to either high or low amounts of factual or emotional newspaper publicity. Factual publicity consisted of reports on the defendant’s prior criminal record, information similar to that used in previous studies. Emotional publicity discussed the defendant’s involvement in a hit-and-run killing of a child. After reading the PTP, participants were presented with a videotaped simulation of a real armed robbery trial. Results indicated that emotional PTP may exert a biasing effect even greater than purely factual negative information about the defendant. Unlike previous research, there were no main effects on jurors’ predeliberation assessments. However, mock jurors exposed to high levels of emotional PTP produced 20% more convictions postdeliberation than jurors not exposed to this information. Furthermore, conviction prone jurors exposed to high levels of emotional PTP were more persuasive during deliberations, and judicial instructions did not eliminate the biasing effects of PTP. This research indicates that emotionally laden PTP can produce a persistent bias against the defendant, over and above that produced by negative but nonemotional information.

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By contrast, Wilson and Bornstein (1998) found similar effects from factual and emotional PTP. The presence of emotional and factual PTP that was prejudicial toward the defense was manipulated and compared to the effect of PTP containing information admitted at trial (control PTP). Although both factual and emotional PTP created more antidefendant bias than the control PTP, there was no significant difference between the effects on verdict for emotional and factual PTP (Wilson & Bornstein, 1998). The experimental research described thus far has investigated the effect of providing potential jurors with PTP containing information about the defendant, under the theory that it might influence their decision making on the ultimate issue they must determine, specifically the trial verdict. Otto and Penrod (1991) investigated the effect of PTP containing information specifically on the ultimate issue to be decided by the jury in the context of an insanity trial. Instead of exposing the participants to PTP containing negative information about the defendant that could potentially be used to make inferences about the defendant’s criminal responsibility, the researchers exposed them to PTP on the specific issue of the defendant’s criminal responsibility within the context of an insanity trial. Participants were exposed to PTP indicating that the defendant was “insane” at the time of the crime, PTP indicating the defendant was “sane,” or no PTP. The group receiving the “insane” PTP was, from the outset of and throughout the trial, inclined to view the defendant as insane, whereas the “sane” group persistently saw her as much more sane. The no-PTP group started out with a skeptical view of the defendant’s insanity claim but by the time they heard the first witness their position was between and stayed between the “sane” and “insane” groups. In short, the PTP biased the views of the jurors on the insanity issue, and trial evidence did not eliminate those differences in perception.

Experimental Studies of General PTP Effects in Criminal Cases The above studies demonstrate that jurors are negatively influenced by casespecific PTP, but PTP effects are not limited to case-specific publicity: other research has suggested that even general PTP (prominent information found in the news but unrelated to a particular case) may significantly influence jurors’ perceptions of a defendant and may bias decision-making processes. In a study conducted by Green and Wade (1988), publicity about the wrongful conviction of a serial killer led to a decrease in guilty verdicts by participants who served as mock jurors in an ostensibly unrelated robbery and assault case. More recently, Kovera (2002) has demonstrated that individuals exposed to a televised rape story biased toward the defense expected more incriminating evidence against the defendant in an unrelated case before rendering a guilty verdict when compared to individuals who watched a proprosecution rape story. Therefore, case-specific information about a particular defendant and more general information about crimes can both affect jurors’ subsequent decision making during a trial, biasing their decisions against the defendant.

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Experimental Studies of PTP Effects in Civil Cases Although some of the legal issues and protections differ, research has also investigated the effects of PTP in civil cases. Though the number of PTP studies looking at effects on jury decision making in civil cases is limited, the results generated from these studies parallel the results found in criminal cases. The first experimental study investigating PTP effects in civil cases was performed by Kline and Jess (1966). In their study, undergraduate participants comprising four “juries” were asked to deliberate about a personal injury case that was the result of a traffic accident. Before mock jurors were presented with case evidence, they read a newspaper article containing both prejudicial prior record information and nonprejudicial statements about the defendant. The results indicated that the prejudicial information affected verdict decision making. During deliberations one of the four juries made reference to the defendant’s prior record despite the judge’s admonition against the use of this information. Other research has investigated the effects of prior record and character information on decision making in civil cases. Otto, Penrod, and Hirt (1990) found that PTP can affect participants’ judgments of the negligence of the parties in a civil trial. Both the negative character PTP about the plaintiff and the prior record PTP about the plaintiff influenced participants’ judgments of the defendant’s negligence. Participants who read either of these two types of PTP about the plaintiff were less likely to say that the defendant had been negligent. These effects were reflected not only in the participants’ verdicts but also in verdict confidence, evaluations of the parties, and memory of and inferences from the trial evidence. Participants who read negative PTP about the plaintiff also gave more positive ratings of the defendant and his witnesses – in a sense, the PTP had effects that spilled over to benefit the opposing party. This research indicates that PTP containing information about prior bad acts and about the character of the parties is a powerful influence on decision making that generalizes across case type. In addition to expanding the examination of prior record PTP effects to civil cases, PTP research in civil cases has also taken the important step to investigate the effects of positive PTP. In the context of a personal injury case, Bornstein, Whisenhunt, Nemeth, and Dunaway (2002) presented participants with PTP about the defendant that was positive, negative, or neutral. As predicted, participants were sensitive to publicity information, such that those who read negative information about the defendant were twice as likely to judge that individual liable for the plaintiff’s injury. However, participants were not influenced in their decision making by the positive PTP. These results confirm findings from much other research that negative information can bias a trial against one of the parties but provides little confirmation that positive PTP can bias a trial in favor of a party. Overall, there has been relatively little research on PTP in civil cases. The research that has been conducted demonstrates that the PTP effects observed in criminal cases are likely to be present and robust in civil cases. The biasing impact against the defendant of PTP about the prior record of the defendant is

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also present in civil cases. Observing these effects in both civil and criminal cases indicates that prior record or bad character PTP is particularly dangerous. Although this research took an important step in investigating any potentially positive effects of PTP, more research is required on this topic in civil and criminal contexts.

Experimental Research on PTP Safeguards Several legal procedures have been suggested by the courts as being effective safeguards against the effects of PTP on juror decision making. These safeguards include individual voir dire, extended voir dire, change of venue, continuance, or judicial admonitions instructing jurors to disregard information (Studebaker & Penrod, 1997). Despite the number of individuals claiming that they cannot receive a fair trial as a result of PTP, the rate at which a judge willingly provides such safeguards is not well documented. It is also important to keep in mind that although the courts have implemented safeguards against PTP, some social science research has demonstrated that procedures such as trial continuance, judicial instructions to disregard PTP, extended voir dire, and jury deliberations have not been successful and may even produce a backfire effect (Bornstein et  al. 2002; Dexter, Cutler, & Moran, 1992; Kramer et al. 1990; Lieberman & Arndt, 2000). The research investigating voir dire as a safeguard against PTP indicates that it may not be effective. For example, Kerr, Kramer, Carroll, and Alfini (1991) exposed mock jurors to PTP and then asked them a simulated voir dire question, “Can you put out of your mind any information you might have received from the newspapers or television and decide this case solely upon the evidence to be presented in court?” Participants who believed they could remain impartial voted to convict at the same rates as the group who responded that they had been prejudiced by the negative PTP. Other research on voir dire has focused on the ability of judges and attorneys to uncover juror bias through extensive voir dire. Kramer et  al. (1990) videotaped mock jurors as they responded to voir dire questions. These tapes, information about a trial, and information about the PTP in the case were then mailed to a national sample of experienced defense attorneys, prosecutors, and trial judges. The attorneys and judges were asked to indicate which prospective jurors they would excuse in their usual professional trial role. Jurors exposed to PTP whom the professionals would not have excused were just as likely to convict as those whom they would have excused. Moreover, both groups were more likely to convict than jurors who were not exposed to PTP. Similarly, a study by Dexter et al. (1992) showed that once mock jurors were exposed (or not exposed) to PTP, it made little or no difference whether they received an extensive voir dire (60 min) or minimal voir dire (15 min) in terms of reducing possible juror biases. All of this research indicates that voir dire does not effectively distinguish between potential jurors who have been biased by PTP and those who have not.

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In the same study described above, Kramer et  al. (1990) also investigated whether or not judicial admonitions about PTP in the form of instructions were able to neutralize the negative effects of PTP. Recall that there was a significant effect of PTP on jurors’ judgments of defendant liability, with those in the PTP group more likely to find the defendant liable than the group not receiving PTP. Unfortunately, judicial instructions did not decrease juror sensitivity to the biasing effects of negative PTP on jurors’ judgments of liability. In fact, instructions increased the biasing effect of PTP (Kramer et  al.). Bornstein et  al. (2002) also investigated the impact of judicial admonitions while varying the presence or absence of biasing PTP as follows: participants did not receive a PTP admonition, received one after trial only, or received one both before and after trial. The admonition did not decrease the effect of negative PTP; however, the admonition reduced the perceived culpability of the defendant, regardless of the PTP presence when presented both before and after trial (Bornstein et al.). Results from both of these studies indicate that judicial admonitions to ignore biasing PTP may be an ineffective safeguard. Limited research has also investigated the effectiveness of deliberations as a safeguard against PTP. For example, Kramer et al. (1990) found no main effects on jurors’ predeliberation assessments. However, postdeliberation assessments revealed that jurors exposed to high levels of emotional PTP produced 20% more convictions than those not exposed to this information. Furthermore, conviction prone jurors exposed to high levels of emotional PTP were more persuasive during deliberations, and, as discussed above, judicial instructions were not effective in safeguarding the biasing effects of PTP. Results from the Steblay, Besirevic, Fulero, and Jimenez-Lorente (1999) meta-analysis provide additional support for this potential backfire effect. The effect size obtained for PTP after deliberations increased from (r = 0.10) posttrial, predeliberation to (r = 0.15) posttrial, postdeliberation. Based on these studies, many of the suggested safeguards might be less effective than previously assumed. However, more research is required on the safeguards that might moderate the biasing effects of PTP or to assist in the identification of jurors who have been irreparably biased by PTP.

Summary from Experimental Studies Overall, the experimental research on PTP indicates that it can affect jurors’ evaluations of the evidence and verdict decision making in both civil and criminal cases. Specifically, media coverage containing case-specific information, inadmissible information, and emotional accounts of trials has the potential to influence jurors’ perceptions of defendant culpability, which may lead to a significantly greater chance that a defendant is ultimately found guilty. In particular, jurors hearing negative information pertaining to the defendant’s character or jurors learning information about a defendant’s prior criminal history are particularly problematic. These jurors, when compared to jurors not exposed to these types of PTP, are

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more likely to perceive a defendant as guilty both pretrial and posttrial. There is also reason to believe that general PTP may influence jurors’ decisions in unrelated trials. Additionally, current legal safeguards against jurors’ use of PTP in their decision making may not ameliorate the bias created by exposure to PTP, nor may jury deliberations.

Community Attitude Surveys A second common method researchers have used to assess PTP effects takes advantage of real-life cases. This type of study also has the benefit of making use of respondents who have been naturally (rather than experimentally) exposed to pretrial media. In community attitude research, individuals are often recruited from professional market research companies so that a large cross section of the community is matched to the demographics of potential jury members in that particular venue. This type of research provides valuable information about juror perceptions of PTP in a real-life setting, and it has the additional potential to be very useful in supporting a defense motion for a change of venue. Community attitude surveys are generally short surveys conducted over telephone. Initially, research participants are first screened to ensure that they are jury-eligible, which increases the external validity of the sample. Most case study research protocols involve asking questions about participants’ preferential news sources and about the amount of time they attend to these news sources. Participants are also asked a series of questions related to their knowledge about the target case, perceptions about case strengths and weaknesses, perceived defendant culpability, and questions related to a jurors’ ability to be fair and impartial. It is also common for researchers to collect demographic information as well as case-specific experiential and attitudinal information. Statistical analyses are then performed to assess the relationship of PTP exposure to prejudgments about the case. As discussed in the preceding section, experimental research demonstrates that PTP can negatively affect trial decision making. Data from case studies and survey research parallel the findings provided from experimental PTP methods. Specifically, case studies and survey research demonstrate that jury-eligible adult respondents who have been exposed to biasing information provided by the media about a trial are more likely to hold proprosecution attitudes and to prejudge the defendant as guilty when compared to respondents who have not been exposed to negative publicity concerning the defendant (Costantini & King, 1980–1981; Moran & Cutler, 1991; Nietzel & Dillehay, 1983; Simon & Eimermann, 1971; Vidmar, 2003). In an early study, Simon and Eimermann (1971) surveyed 130 potential jury members over telephone 1 week before a murder trial. In this particular case, there had been 25 local newspaper articles about the case in the 2-month time period between the murder and the survey. When the community members were surveyed, researchers discovered that 59% of the sample had heard about the case. More importantly, those individuals who were familiar with the murder were more likely

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to hold proprosecution attitudes when compared to respondents who were unfamiliar with the crime. Overall, 59% of the total sample who had been exposed to information about the case believed that they could be a fair juror if they were called in for jury duty and over two thirds of these respondents believed the defendant could receive a fair trial in the selected venue. These results indicate that knowledge about a case can create a pretrial bias in real cases as well as in experiments, that real potential jurors may not be consciously aware of this bias, and that traditional methods of voir dire may not uncover this bias. Costantini and King’s (1980–1981) survey research produced analogous findings and expanded the case study investigation to different types of cases. They conducted three surveys on three different cases all receiving high levels of PTP: two murder cases and one rape case. In all the three cases, there was a significant relationship between the amount of information participants were able to recall about the case and their prejudgments about the defendant. Those respondents who knew a lot of information about the case were more likely to believe the defendant had committed the crimes for which they were being charged when compared to respondents who knew a little or no information about the case. It is also important to note that the more media sources a respondent reported attending to, the more information they were able to recall about the case. The findings from Simon and Eimermann (1971) coupled with the results from Costantini and King (1980–1981) demonstrate that pretrial knowledge appears to be highly indicative of prejudgment against the defendant in a variety of real cases. Moran and Cutler (1991) expanded the investigation of PTP effects in real cases other than murder trials. In two studies, respondents were surveyed about either a drug traffic case or a case involving a police officer who was killed in a drug sting operation. In both cases, increased knowledge about the case was correlated with judgments of defendant culpability; however, case knowledge did not influence participants’ self-reported ability to be fair and impartial. This research provides additional evidence that the biasing effects of PTP can occur across case types and that potential jurors may not be aware of their own PTP-related biases in real cases. Case study research has also been conducted specifically in support of change of venue motions. The findings from this research confirm findings from other case study survey research, namely that PTP can create bias. Additionally, research in support of change of venue motions demonstrates the utility of case study research for this purpose and highlights its practical use in real life cases with high levels of PTP. For example, Nietzel and Dillehay (1983) conducted five separate community attitude surveys for five murder cases that were used to support a change of venue. In all the five surveys, they discovered that more respondents in the trial venue had heard about that case when compared to respondents in different counties. Further, those respondents in the trial venue were more likely to perceive the defendant as guilty when compared to respondents in other counties (these numbers ranged anywhere from 16 to 40%). A change of venue survey for a murder case conducted by Arbuthnot, Myers, and Leach (2002) also supports these findings. In their survey, it was illustrated that case knowledge, as opposed to case awareness was a better predictor of defendant prejudgment. In other words, individuals who were more

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knowledgeable about specific case facts were more likely to prejudge the defendant as being guilty as opposed to those individuals who had merely heard about the case but were unable to recall any specifics about the case. Case study research in support of change of venue motions has even demonstrated differential effects of PTP bias in nationally publicized cases. Vidmar (2003) studied the effects of PTP on jurors’ prejudgment of John Phillip Walker Lindh (otherwise known by the media as the “American Taliban”), a nationally publicized and emotionally charged case. As in many nationally publicized cases, most participants had heard of the case and held unfavorable opinions about the defendant. More individuals from Virginia held unfavorable opinions about Mr. Lindh and were more inclined to believe that he was definitely guilty of the crimes charged against him than jurors from other locations, although those jurors (i.e., from other locations) also held primarily negative views of the defendant. However, most differences in responses were related to the amount of PTP exposure, not to the venue in which the respondents lived. Respondents recalling more information about the case were more biased against the defendant. More importantly, results revealed that even though jury-eligible respondents reported they could be impartial, responses on other dependent measures were inconsistent with the presumption of innocence. For example, when asked whether or not they would agree with the jury if a not-guilty verdict was rendered, respondents exposed to PTP were more likely to strongly disagree with a not-guilty verdict when compared to individuals not familiar with this case. These results indicate that national PTP has the potential to bias the potential jurors in many areas, making a change of venue less effective as a safeguard against PTP-related bias. In addition, these results underscore the potential ineffectiveness of voir dire in identifying jurors who may consciously or unconsciously hold biasing pretrial opinions concerning a defendant. Summary from Case and Survey Studies.  Although case and survey research do not allow a researcher to authoritatively determine causal relationships between a juror’s judgment of a defendant and exposure to PTP, this type of research does shed light on how PTP may influence pretrial judgments. Overall, results gleaned from case study research demonstrate that jurors exposed to PTP are more likely to hold biased pretrial opinions about a defendant. Further, psychologists have learned that jurors who are able to successfully recall detailed information from media portrayals of a case are significantly more likely to perceive a defendant as guilty when compared to individuals who are unable to recall as many case details. Most importantly, the results from case study and survey research support and confirm results from experimental studies on PTP effects, further indicating that these are robust effects.

Meta-Analysis of PTP Studies One methodology that is particularly useful for assessing PTP effects is the review technique of meta-analysis, which allows a researcher to calculate an average

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effect size estimate for the influence of PTP across studies and various methodologies. This type of research allows a comprehensive examination of PTP effects across a large number of studies while reducing the influence of various sources of error found in individual studies (Rosenthal, 1991). In the context of research addressing PTP, a meta-analysis allows researchers to assess the underlying effects of PTP on judgments of defendant guilt as well as provide explanations as to why biasing effects are likely to occur. Steblay et al. (1999) conducted the most recent meta-analysis of PTP effects that incorporated studies using both experimental and survey methodology. Their analysis included 44 empirical tests of the PTP effect obtained from articles published between 1966 and 1997. For each individual study, the researchers coded information including sample size, type of study, information given to the control group, whether or not PTP was real or artificial, type of information presented in the PTP conditions (e.g., defendant character, confession, etc.), PTP medium, amount of delay between PTP exposure and trial simulation, and time of verdict – either before the trial, predeliberation, or postdeliberation. Consistent with their hypothesis, Steblay et al. (1999) found that participants who had been exposed to biasing accounts of PTP were significantly more likely to prejudge the defendant as guilty when compared to those not exposed to this type of information (average r = 0.16, although the effect size increases to 0.39 in the survey sample). They also discovered that PTP effects were the strongest when participants were potential jurors as opposed to students, when PTP had multiple accounts of information about the case, when PTP was real as opposed to artificial, and when judgments about the defendant were made more than 1 week after the initial PTP was disseminated to participants. Finally, results demonstrate the greatest effects of PTP occur before the trial takes place; however, the effects are still seen posttrial. The strongest PTP effects were found in cases pertaining to drugs, sexual abuse, and murder. Although some would argue the overall average effect size (r = 0.16) is modest, it is important to note that the range of effect sizes varied anywhere from 0 and negative values up to 0.39 in the survey sample (Steblay et al., 1999). This large range suggests that PTP effects need to be considered in the context of mediating and moderating variables which could signal which types of PTP pose the greatest dangers. Steblay et al. report that the largest effect sizes were associated with relatively serious crimes (murder, sexual abuse, and drugs) and with studies using relatively realistic methodologies (e.g., real PTP, long delays). Furthermore, the results from this meta-analysis shed light on plausible reasons for null findings in some past studies. Some explanations include low statistical power and the manner in which prejudicial publicity has been conceptualized and operationalized (Steblay et al.).

Critiques of Experimental and Case Studies of PTP A variety of critiques have been directed at each of the methods used to study PTP effects. Experimental studies are preferred by researchers because they allow

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methodical variations in the amount and type of PTP presented to participants while controlling for extraneous variables. This control allows for researchers to infer a cause-and-effect relationship, such as the exposure to PTP caused more guilty verdicts. Experimental research also allows psychologists to investigate very specific phenomena of interest that might not be sufficiently isolated in the real world, such as whether the PTP is emotional or factual. However, one can argue that experimental conditions typically do not parallel what occurs before or during an actual trial, thus there are drawbacks to this type of research design. Indeed, some have argued that the conclusions garnered from experimental studies are based on methodologies that do not accurately and completely reflect what occurs during a real trial (Horowitz & Willging, 1984; Van Dyke, 1977). The majority of past experimental research has relied on artificial PTP that has been rather abbreviated – the PTP exposure often has consisted of only one article. In today’s media reports concerning highly publicized trials, potential jurors are exposed to a plethora of information concerning the case. For example, in the McVeigh case, there were, within a few months, approximately 1,000 articles about the Oklahoma bombing in Oklahoma City newspapers (Studebaker, Robbennolt, & Pathak-Sharma, 2000). Other features of past research on PTP have prompted questions about the generalizability of experimental findings – including the use of unrealistic case presentations and the use of undergraduate mock jurors. Although past results do tap into the decision-making processes associated with PTP effects, the courts have sometimes been hesitant to rely on these data when handling PTP-related issues in their own cases. A clear example is found in language from Judge Richard Matsch in his venue-change opinion for the Timothy McVeigh trial when he expressed his concerns about psychological research “consisting largely of simulated trials” as opposed to his personal experiences as a trial lawyer and judge (U.S. v. McVeigh, 1996, p. 1473). Survey methods have strengths such as making use of large and representative samples taken from potential venirepersons and relying on naturally occurring publicity about real cases. Nonetheless, there are some limitations in using survey methods. First, because these data rely on correlational analysis, it is impossible to determine a causal relationship between media exposure and pretrial bias. For example, is it the exposure to PTP that leads to negative perceptions about the defendant, or do those individuals with a proprosecution stance voluntarily expose themselves to publicity surrounding any given case (Moran & Cutler, 1991)? Second, survey research does not examine the impact of PTP following the presentation of trial evidence or deliberation – do trial evidence and/or deliberation reduce the impact of PTP and by how much? Some research indicates that PTP effects are attenuated by exposure to trial evidence (Otto et al. 1994). This potential mitigating effect of the trail is not captured in case study or survey research. Clearly, tradeoffs are made when a particular methodology is chosen. PTP researchers who choose experimental methods accept a decrease in the realism of their studies. Researchers who choose survey methods relinquish experimental control as well as an inability to examine the impact of trial evidence on decisionmaking processes. However, it is premature to conclude that the downsides to each of these approaches render their results meaningless in real world legal practice.

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Despite their shortcomings, this research has provided us with invaluable information about the effects of PTP. It is of paramount importance that similar results are achieved, regardless of the methodology used. For example, experimental research has demonstrated that negative publicity about a defendant has the ability to create proprosecution attitudes pretrial that may persist throughout the duration of the trial and lead to guilty verdicts. Case-study survey research has shown that prospective venirepersons who are surveyed over telephone about a highly publicized trial oftentimes report having knowledge about that case, and when that knowledge is biased against the defendant, participants are more likely to perceive the defendant as guilty pretrial. It is this combination of methods all deriving the same results that is the true strength of the research on PTP and that highlights a variety of ways this research can be used by the courts.

Extending Past PTP Research with New Methods in Real Trials Although traditional research in support of change of venue motions has involved community surveys, research on PTP for real cases could be informed by combining survey results with additional methodologies. For example, case-specific content analysis of the media coverage of a real case could provide information about the type and amount of PTP generated about a particular case. This type of casespecific content analyses can support change of venue motions and has the ability to reinforce the results psychologists obtain from community attitude surveys by offering comprehensive analyses of the type and nature of publicity surrounding a target case. The addition of a media content analysis provides the court with an overall picture of the type and amount of information about the case the public had been exposed to, while a community attitude survey has the potential to provide the court with information about how this publicity, if at all, has influenced potential jurors’ perceptions about a defendant including initial assessments of defendant guilt. This combination approach has been used successfully in real litigation. For example, Vidmar’s (2003) survey results in the John Walker Lindh case paralleled, in many ways, a separate analysis of the media coverage of the Lindh case in Alexandria (the intended venue for the trial) and the Minneapolis area conducted by Penrod et al. (2002). Their analyses revealed that the coverage of issues related to the Lindh case was much more intense in the Alexandria area (Washington Post and the Washington Times) than in the Minneapolis area (Minneapolis Star Tribune and the St. Paul Pioneer Press). Although the coverage was comparably negative concerning Mr. Lindh, there were more than twice as many news articles in the Alexandria area. Coupling media analyses with surveys is one way in which the effects of PTP can more clearly be established. The combination of media content analysis and community survey research resulted in a successful change of venue motion in the Oklahoma City bombing case. Studebaker et al. (2000) content analyzed the massive newspaper publicity surrounding the Oklahoma City bombing incident and the defendant Timothy McVeigh. As part

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of a change-of-venue motion, the researchers conducted a large-scale content analysis of PTP concerning this case as a means to obtain information about the type and amount of information that had been printed in the media across four different newspapers disseminated to residents of Oklahoma City, Lawton, Tulsa, and Denver. These cities were chosen because they were identified as potential trial venues. Studebaker et al. collected and content coded all relevant articles from each of the four locations between April 20, 1995 and January 8, 1996. Results demonstrated that the total number of articles, total amount of text written, number of pictures, location of article, negative characterization of defendant, and emotional publicity significantly varied across newspapers such that more negative publicity, including emotional and factual, was found in Oklahoma City – where the trial was scheduled to take place. The results of the content analysis were combined with the results of a community survey to demonstrate the effects of PTP in this case. A public opinion poll conducted by Kent Tedin at the University of Houston investigating potential jurors’ levels of prejudgment about the case was also conducted in support of the change of venue. As predicted, those individuals who resided closer to the area of the bombing not only reported reading more stories about the incident but also held more negative opinions about the defendants when compared to participants who lived farther away from the bombing site. This example demonstrates how the combination of content analysis and survey results can help researchers and attorneys in highly publicized cases demonstrate not only the amount and type of pretrial bias but also what the origination of that bias is likely to be. Although the McVeigh trial was highly publicized at the national level, the majority of defendants claiming an unfair trial based on the biasing effects associated with PTP are those whose cases are recognized locally as opposed to nationally. Consider, for example, the case of Elizabeth “Lizzie” Grubman who backed her SUV into a crowd at a Hampton’s Long Island nightclub, which resulted in injuries to several individuals at the scene (Penrod et al. 2001). Ms. Grubman was considered a New York socialite and was rather well known in the Manhattan area of New York. Consequently, there was a media frenzy surrounding this incident in New York City. In the 3 weeks after the occurrence, there were nearly 250 media stories concerning Ms. Grubman’s accident in the New York City area news outlets. Although coverage decreased over time, there were a total of 505 articles covering this story – with at least one story per week in the 6 months following the incident. The majority of press coverage in New York City encompassed specific aspects of the incident (111 stories), while other stories focused on more specific aspects of the case and implications of the incident (84 stories). Publicity also contained letters to the editor or editorials about opinions and assumptions concerning the event (84 articles), and 226 columns or editorial columns contained individual speculation or hearsay concerning the defendant and the incident. Other areas of New York State did not receive as much publicity concerning this case. For example, in Albany, NY newspapers there were only nine printed articles over the same 6-month period (Albany is 160 miles north of New York City). An analysis of over 505 news articles published in the New York City area indicated that two thirds of those stories appeared in media with large Long Island circulation but only 2% also appeared in Albany newspapers.

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To evaluate the impact of the PTP in the Grubman case, Penrod et al. (2001) surveyed by phone over 1,200 jury-eligible New Yorkers in Suffolk (Long Island), New York (Manhattan), and Albany Counties to assess pretrial judgments about the defendant. Results paralleled the media content analyses and demonstrated that participants in Long Island and Manhattan were much more familiar with the case (86, 77% respectively) when compared to participants in Albany County (36%). In addition, more residents in Long Island and Manhattan held prejudiced opinions against Ms. Grubman when compared to residents in Albany County (35, 34, and 13%). Respondents living in the cities receiving the most PTP were more likely to believe Ms. Grubman intentionally backed her SUV into a group of people (Suffolk, 32%; Manhattan, 38%) than participants living where there was less PTP (Albany, 16%). Residents from Suffolk and Manhattan were more likely to believe that Ms. Grubman was under the influence of alcohol, that her actions were criminal in nature, and that the plaintiffs should win their case against her. Again, we see that in both national and locally publicized cases, the combination of survey methods and content analysis enriches the information available to the courts about the potential effects of PTP on real jurors’ decision making.

Bridging Content Analyses, Case Studies, and Experimental Studies The new paradigm of using multiple methods to address the effects of PTP in real cases could be extended to experimental research on PTP. A more comprehensive understanding of PTP effects could be provided by addressing PTP effects using multiple methods in the experimental context. Perhaps the strongest studies of PTP effects would actually bridge content analyses, case methods and experimental methods. Chrzanowski et al. (2006) have recently examined the effects of PTP in a real case (while it was being tried), using a method that combines media analysis, natural and experimental exposure to PTP, survey and experimental methods. The methods of their study are a substantial elaboration of those used in the McVeigh and Grubman studies;particularly important is the addition of an experimental component such that participants who were unfamiliar with a highly publicized case received experimental manipulations of PTP. The studied case involved an allegation that three teenage defendants sexually assaulted a 16-year-old girl while she was intoxicated. The defendants videotaped the incident and that videotape was shown to jurors. The complainant admitted that she had consensual sex with two of the defendants the night before the alleged crime.2 The research method involved five primary components: (1) A detailed media content analysis of over 120 LA Times articles to determine the amount and type of

It is noteworthy that the target case involved a retrial of the three defendants. In the initial trial, the jury was hung with 11 to 1 toward acquittal on the most serious charge, rape by intoxication.

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PTP about the case, (2) A community attitude survey (administered by the prosecution) to 204 jury eligible adults in Orange County to determine the level of publicity potential jurors had been exposed to prior to the start of the trial and to determine jurors’ prejudgments about the defendants’ guilt, (3) The trial court’s pre-voir dire survey of 246 persons summoned for possible service in the trial, (4) Three hundred and forty-seven participants who were experimentally exposed to PTP from the case and who read shortened versions of the real trial transcripts during the actual trial (experimental participants),3 (5) One hundred and forty-six participants from California who were naturally exposed to the PTP but who also read the same trial transcripts as the experimental participants during the actual trial (natural exposure participants). Sixty one were actually aware of the case – while others have not heard about it. Experimental methods.  Nearly 350 undergraduate participants from Minneapolis, Miami, and New York City were experimentally exposed to PTP about the case. The participants were given various levels of exposure (high, low, and control). Participants in the low PTP condition received three newspaper articles about the case and seven non-case-related newspaper articles, whereas participants in the high condition received ten articles specifically about the trial. The participants in the control condition as well as the natural-exposure participants received ten real newspaper articles that were not related to the case. For the experimental participants, the amount of PTP was crossed with a type of PTP, either proprosecution or prodefense or neutral. The participants provided assessments of the trial evidence and verdict judgments at six points in time via a study Web site. In session one (pretrial), the participants read the real newspaper articles taken from the Los Angeles Times. Session two tested participants’ knowledge about the case and collected demographic information, general attitudes concerning rape, alcohol, and the criminal justice system, initial impressions of the defendants, and other casespecific information. The questions paralleled the information obtained in the actual trial juror questionnaire as well as information collected in the community attitude survey. In sessions three through six, all the participants read shortened versions of the actual trial transcripts including opening statements, prosecution witness testimony, defense witness testimony, and closing arguments. The main theme of the prosecution evidence (produced through five witnesses) was that the complainant did not consent to the events of that evening and that she was unconscious while the video was being made. The main theme of the defense case was that the complainant was a willing participant and that her blood alcohol level was not high enough to induce a state of unconsciousness. At the end of each session, the participants answered questions about the evidence and provided opinions about level of defendant guilt. In the final session, the participants read judicial instructions, rendered judgments Comprehensive searches using Lexis Nexus did not show news coverage outside of the trial area. It is also worth noting there were no significant differences in remote jurors’ prejudgments of defendant guilt between those reporting to have heard about the case and those reporting not knowing about the case.

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about defendant guilt, and answered questions related to the trial evidence. The sessions were presented as the trial progressed in real time. Results.  There were a number of notable differences in the information that appeared in print media (based on the content analysis) and what prospective jurors recalled about the case (court survey). Jurors were particularly likely to recall that the main defendant had prior involvement in a statutory rape case, had drunk driving and trespass arrests, and they also recall that the alleged assault was videotaped. It is noteworthy that none of the prospective jurors recalled information about the complainants’ prior drug use and arrests (even though that information appeared nearly as often as the information about the primary defendant’s record). Only two jurors recalled frequently published stories suggesting that the complainant was too intoxicated to provide consent, and no jurors recalled frequently published defense characterizations of the case (e.g., that the complainant consented, that she previously had consensual sex with two of the defendants, that she faked her unconsciousness). The nature and extent of PTP and case information recalled and reported by jurors was generally consistent across the community survey and summoned juror groups (and correlated significantly with pretrial judgments) – about three fourths of community survey respondents and venire members were familiar with the case. However, three fourths of the community respondents – but less than 30% of venire members – believed the defendants were definitely or probably guilty. Impartiality and guilt beliefs were not correlated in either sample. Among community members, 55% reported an ability to be fair jurors versus 81% in the jury sample. The researchers attributed the marked differences in guilt prejudgments and impartiality judgments to social desirability effects, similar to Vidmar (2003). Analyses concerning verdict preferences revealed that both natural and experimental PTP exposure systematically biased mock jurors’ verdict preferences. High and moderate natural exposure (measured by PTP recall) produced verdict effects that were stronger than the effects observed in the experimental group exposed to high prosecution PTP. In the remote locations, the biasing effect of manipulated PTP on pretrial verdict preferences was r = 0.58. This effect size diminished to 0.18 posttrial – indicating that trial evidence attenuated PTP effects among those experimentally exposed to PTP. On the contrary, both the pretrial and posttrial effects for jurors in the natural exposure sample were 0.32 – there was no evidence attenuation. These results resonate with the results from Steblay et al. (1999) meta-analysis, which yielded greater effect sizes pretrial for community members (r = 0.30) when compared to students (r = 0.08) and for more naturalistic PTP – results that suggest that experimental studies (with student participants and PTP created for purposes of the research) may underestimate actual PTP effects among nonstudent samples, especially posttrial. In sum, the results of the Chrzanowski et al. study offer strong confirmation of the causal links among the critical variables that have been explored in PTP research using content-analytic, experimental, and survey methods. There was strong evidence of bias in the PTP concerning the target case. There were also strong indications that the contents of this PTP were reflected in what naturally

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exposed readers recall about the PTP. Additionally, there were strong indications that biased PTP produces pretrial bias among the prospective jurors who were surveyed for the actual trial. This bias was also observed in research participants who were naturally exposed to the PTP and in research participants exposed to the PTP in experimental settings. There is strong evidence that the naturally and experimentally induced biases endure through the presentation of trial evidence – though it appears that naturally induced biases are substantially more resistant to the effects of trial evidence.

Research Conclusions For parties confronting significant PTP, it is clear that there are good reasons to be concerned that the PTP can bias prospective jurors. It is also clear that there are a number of empirically based tools that can aid parties in: 1 . Determining the nature and extent of pretrial bias 2. Making the case to trial courts that PTP has produced significant bias against them 3. Identifying other venues where there may be substantially less bias These tools include content analyses of the media and surveys of prospective jurors in the scheduled and alternative venues – perhaps complemented with demonstrative mock-jury experiments built around the case. The results from content analyses and surveys can be complemented by reports of the prior experimental, content analytic, and survey research such as the research we review in this chapter – the research that, we believe, compellingly demonstrates that biased PTP can produce biased jury verdicts. As we have demonstrated in this chapter, the methods of PTP studies employed in recent years are bridging the methodological and inferential gaps in prior experimental and case studies and reveal common patterns of findings. For example, the findings from the Chrzanowski et al. (2006) study suggests that experimental studies using manipulated exposure to PTP (even to actual PTP) can have similar posttrial effects – but that experimental studies may underestimate the effects of natural PTP. In short, the combination of stronger research methods and mounting research findings support the conclusion that PTP can have fairly powerful and durable effects on jurors and trial verdicts. This is not to say that there is not a need for additional research and we would point to several areas where research is needed. First, we know very little about the efficacy of fighting fire with fire – that is, there is virtually no research addressing the question of whether the effects of PTP that produces inferences of guilt or responsibility about one party (most typically the defendant in a criminal or civil trial) can be offset by prodefendant publicity that casts the defendant in a positive light (where that is possible) or antiplaintiff (or anticlaimant) publicity that casts the other party in a negative light. One can certainly point to cases (e.g., the Kobe Bryant and the Michael Jackson cases) in

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which a substantial amount of negative PTP concerning complainants was ­generated. Whether and to what extent the outcomes of those cases (criminal charges dropped against Bryant and an acquittal for Jackson) can be attributed to the negative complainant PTP is an open question. Second, there are a number of questions relating to class action and serial litigation (e.g., Vioxx, tobacco, and asbestos cases) that have not received research attention. For example, to what extent do liability findings and damage awards in early cases influence subsequent liability and damage awards given by jurors? Do settlements with some parties influence liability findings and damage awards in subsequent cases that do not settle, and are the effects larger or smaller when the terms of settlements are or are not disclosed? Similar questions can be raised about criminal cases where a series of defendants are tried (e.g., Enron and other corporate scandals like Tyco). Third, we know relatively little about differences in the magnitude of effects produced by the different forms of media which may be consumed by prospective jurors. Most research on PTP uses newspaper-style articles as the vehicle for PTP exposure, but this may no longer be the manner in which people are most likely to be exposed to PTP. In a nationwide poll of 3,000 adults, conducted April 19–May 12, 2004, PEW Research Center reported that the total number of Americans who rely on newspapers as their primary source of news has fallen from 58% in 1994 to 42% in 2004, and newspaper readership among individuals under the age of 30 is only 23%. Their report also reveals that 41% of Americans listen to the radio as means of obtaining news and the number of people accessing the Internet for the purposes of accessing news reports has grown steadily over the past 4 years. Sixtysix percent of those surveyed reported to access the Internet for general purposes, and 29% reported logging on to the Internet at least three times per week to obtain the news. Based on past research, the impact of medium of exposure is unclear. Ogloff and Vidmar (1994) found that the biasing effect of PTP was greater for PTP presented in a television and newspaper format than for newspaper alone (Ogloff & Vidmar, 1994). However, in their study investigating the effect of emotional versus factual PTP, Wilson and Bornstein (1998) found no difference between PTP presented in video versus print format (Wilson & Bornstein, 1998). Unfortunately, there is currently no published research on the effect of Internet media and PTP. Although this research on presentation medium has generated mixed effects, it would be reasonable to hypothesize that presentation may matter. Future research addressing various media forms (newspaper, TV, radio, Internet) in combination with type of PTP (proprosecution, prodefense, and neutral) would greatly enhance our understanding of PTP effects.

Considerations for Trial Consultants and Researchers As demonstrated by the past research findings and conclusions discussed above, there are numerous tools available to trial consultants and to researchers working with attorneys on cases receiving significant media attention. In this final section,

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we turn our focus to practical considerations one must take into account when determining which method(s) to use when working on a case in which a defendant faces challenges as a result of biasing publicity. We believe that a combination approach to PTP research provides the most valuable information to consultants, psychologists, attorneys, and trial judges. In extremely hostile venues, it is likely the defense will propose to move the trial to a friendlier venue in which potential venirepersons are less likely to have biased opinions about a defendant as compared to potential jurors in the actual trial venue. A common consulting service provided in a case with a large amount of prejudicial PTP is research in support of a change of venue motion. This typically involves administering some type of community attitudes survey. A survey can provide valuable information about potential venirepersons’ knowledge about and attitudes toward a particular defendant. Surveys require a large number of participants in the current venue and in the alternate venue. In the most extreme cases, consultants should consider conducting a community attitude survey in at least three different venues. A consulting team could undertake this task themselves, but it would be very labor-intensive. For this reason, many consultants hire professional market research companies to conduct the survey. This is of course associated with higher costs but allows for a larger sample. However, a survey is based on self-report and cannot provide objective information about the actual amount or type of PTP about a case. Content analysis of the media coverage about a case can be used to complement a change of venue motion. Judges may be more persuaded to grant a change of venue motion if content analysis results are provided in addition to change of venue survey. The content analysis can help attorneys demonstrate the types of information to which potential venirepersons were exposed and the nature and extent of that exposure. The downside to combining these two methods is that content analysis is very time-consuming. Many coders of the media content are required to make the analysis more meaningful. Although some print news articles are available free of charge, many will cost money. It is also difficult to access the content of TV news reports, radio shows, and Internet sources. Demonstrating how much media saturation is “too much” is also a challenge given the lack of research on the issue. Additionally, appropriately measuring potential jurors’ exposure to whatever media may be present in a venue can be difficult. Focus groups and mock trials are also commonly used tools for trial consultants (see Chapters X and Y). These techniques are often used to assess how potential jurors will react to the case issues. They can also be used to test case themes and various presentations of the trial evidence. Mock trials can be used to test impressions of witnesses and of attorneys. In the PTP context, these techniques could be used to investigate exposure to PTP and how it may affect juror decision making in a highly publicized case. Trial consultants could test different presentations of the evidence that may ameliorate the PTP effects. Mock trials could be used to determine how jurors exposed to PTP influence deliberations. Depending on how involved the mock trial is, it could be very expensive. Mock trials require space, paid participants, and equipment. Focus groups provide similar information but are less expensive and labor-intensive to conduct.

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The incorporation of trial consulting methods and real world trials into experimental research would also increase our knowledge about PTP. As demonstrated in the earlier discussion in this chapter, it is feasible to combine field and experimental methods in the same study. Although it yields very rich data, this combination of methods is associated with several surmountable difficulties. For example, a researcher could pick a case that was highly publicized locally, but not nationally to create a “real time” experiment. One major problem is the time involved in identifying and tracking potential cases. Selecting a case can be problematic as well because it is always uncertain whether a case will proceed all the way through trial. Getting trial transcripts for real time exposure to trial evidence can be expensive if they are not available for free – costs can run up to $200 per day. Digesting the transcripts for the research participants is very timeconsuming and requires a team of research assistants. College students are a convenient population for this type of research, but it would be difficult to find community members willing to participate in a lengthy experiment, unless they are paid for their time. Although these are major concerns, they should not prevent researchers from engaging in this type of important and ecologically valid research. The benefit to our knowledge about the effects of PTP far outweighs the practical challenges the research presents.

Conclusion In conclusion, we know much about the effects of PTP on juror decision making. Negative information about a defendant can bias potential jurors’ pretrial judgments. Those biased pretrial judgments can persist throughout the trial, and current safeguards, such as instructions or deliberations, may not moderate the effects of PTP. Although there is still much to learn about PTP effects, the information we do have can be very useful in trial consulting practice. Not only can the research help trial consultants identify problematic issues in real-world cases but the research can also help consultants identify useful methods of collecting data in the field. We suggest using multiple approaches to the study of PTP in both research and applied settings to capitalize on the strengths of the various methodologies discussed in this chapter. Approaching PTP effects from multiple perspectives, particularly combining field and experimental methods, will greatly advance our theoretical knowledge about PTP as well as inform and improve the practice of trial consulting.

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Arbuthnot, J., Myers, B., & Leach, J. (2002). Linking juror prejudgment and pretrial publicity knowledge: Some methodological considerations. American Journal of Forensic Psychology, 20, 53–71. Bornstein, B. H., Whisenhunt, B. L., Nemeth, R. J., & Dunaway, D. L. (2002). Pretrial publicity and civil cases: A two-way street? Law and Human Behavior, 21, 3–17. Carroll, J. S., Kerr, N. L., Alfini, J. J., Weaver, E. M., MacCoun, K. G., & Feldman, V. (1986). Free press and fair trial: The role of behavioral research. Law and Human Behavior, 10, 187–201. Chrzanowski, L. M., Groscup, O’Neil, Penrod, Garcia, Solomonson, et al. (2006). Testing the effects of pretrial publicity: A field experiment with an actual trial. Unpublished manuscript. Costantini, E., & King, J. (1980–1981). The partial juror: Correlates and causes of prejudgment. Law and Society Review, 15, 9–40. DeLuca, A. J. (1979). Tipping the scales of justice: The effects of pretrial publicity. Unpublished master’s thesis, Iowa State University, Ames, IA. Dexter, H. R., Cutler, B. L., & Moran, G. (1992). A test of voir dire as a remedy for the prejudicial effects of pretrial publicity. Journal of Applied Social Psychology, 22, 819–832. Dixon, T., & Linz, D. (2002). Television news, prejudicial pretrial publicity and the depiction of race. Journal of Broadcasting and Electronic Media, 46, 112–136. Flood, M. (2004, November 9). Skilling seeks escape from Houston heat: Ex-Enron chief files for a change of venue after poll finds unflattering perceptions here. Houston Chronicle, 9. Fowler, T. (2004). Verdict from Houston residents polled: guilty. Houston Chronicle. Greene, E., & Wade, R. (1988). Of private talk and public print: General pre-trial publicity and juror decision-making. Applied Cognitive Psychology, 2, 123–135. Horowitz, I., & Willging, T. (1984). The psychology of law: Integrations and applications. Boston: Little, Brown, & Co. Hvistendahl, J. K. (1979). The effect of placement of biasing information. Journalism Quarterly, 56, 863–865. Imrich, D. I., Mullin, C., & Linz, D. (1995). Measuring the extent of prejudicial pretrial publicity in major American newspapers: A content analysis. The Journal of Communication, 45, 94–117. Irvin v. Dowd, 366 U.S. 7 17, 727 (1961). Kerr, N. L., Kramer, G. P., Carroll, J. S., & Alfini, J. J. (1991). On the effectiveness of voir dire in criminal cases with pretrial publicity: An empirical study. American University Law Review, 40, 665–701. Kline, F. G., & Jess, P. H. (1966). Prejudicial publicity: Its effects on law school mock juries. Journalism Quarterly, 43, 113–116. Kovera, M. B. (2002). The effects of general pretrial publicity on juror decisions: An examination of moderators and mediating mechanisms. Law and Human Behavior, 26, 43–72. Kramer, G. P., Kerr, N. L., & Carroll, J. S. (1990). Pretrial publicity, judicial remedies, and jury bias. Law and Human Behavior, 14, 409–438. Lieberman, J. D., & Arndt, J. (2000). Understanding the limits of limiting instructions: Social psychological explanations for the failures of instructions to disregard pretrial publicity and other inadmissible evidence. Psychology, Public Policy, and Law, 6, 677–711. Minow, N. N., & Cate, F. H. (2001). Who is an impartial juror in an age of mass media? The American University Law Review, 40, 631–664. Moran, G., & Cutler, B. L. (1991). The prejudicial impact of pretrial publicity. Journal of Applied Social Psychology, 21, 345–367. Mu’Min v. Virginia, 500 U.S. 415 (1991). Murphy v. Florida, 421 U.S. 794, 799–802 (1975). Nebraska Press Association v. Stuart (1976). Nietzel, M. T., & Dillehay, R. C. (1983). Psychologists as consultants for changes of venue: The use of public opinion surveys. Law and Human Behavior, 7, 309–335. Ogloff, J. R. P., & Vidmar, N. (1994). The impact of pretrial publicity on juror judgments. Law and Human Behavior, 18, 453–469. Otto, A., & Penrod, S. D. (1991). Assessing mediators of pre-trial publicity effects. San Francisco: APA.

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Otto, A., Penrod, S., & Hirt, E. (1990). The influence of pretrial publicity on juror judgments in civil case. Unpublished manuscript. Otto, A. L., Penrod, S., & Dexter, H. (1994). The biasing impact of pretrial publicity on juror judgments. Law and Human Behavior, 18, 453–470. Padawer-Singer, A. M., Singer, A. N., & Singer, R. L. (1977). Legal and social-psychological research in the effects of pre-trial publicity on juries, numerical makeup of juries, non-unanimous verdict requirements. Law and Psychology Review, 3, 71–79. Penrod, S. D., Groscup, J. G., & O’Neil, K. O. (2001). Assessing the effects of pretrial publicity in the case of Elizabeth “Lizzie” Grubman. Unpublished manuscript. Richmond Newspapers v. Virginia (1980). Rideau v. Louisiana, 373 U.S. 723 (1963). Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Simon, R. J., & Eimermann, T. (1971). The jury finds not guilty: Another look at media influence on the jury. Journalism Quarterly, 48, 343–344. Steblay, N. M., Besirevic, J., Fulero, S. M., & Jimenez-Lorente, B. (1999). The effects of pretrial publicity on juror verdicts: A meta-analytic review. Law and Human Behavior, 23, 219–235. Studebaker, C. A., & Penrod, S. D. (1997). Pretrial publicity: The media, the law and commonsense. Psychology, Public Policy, and Law, 3, 428–460. Studebaker, C. A., Robbennolt, J. K., & Pathak-Sharma, M. K. (2000). Assessing pretrial publicity effects: Integrating content analytic results. Law and Human Behavior, 24, 317–333. Tankard, J. W., Middleton, K., & Rimmer, T. (1979). Compliance with American Bar Association fair trial-free press guidelines. Journalism Quarterly, 56, 464–468. Tans, M., & Chaffee, S. (1966). Pretrial publicity and juror prejudice. Journalism Quarterly, 43, 647–654. U.S. Department of Justice. 28 C.F.R. $50.2. U.S. v. McVeigh, 918 F. Supp. 1467 (1996). Van Dyke, J. M. (1977). Jury selection procedures. Cambridge, MA: Ballinger. Vidmar, N. (2003). Symposium:III. The jury in practice: When all of us are victims: Juror prejudice and “terrorist” trials. Chicago-Kent Law Review, 1143, 1–42. Wilson, J. R., & Bornstein, B. H. (1998). Methodological considerations in pretrial publicity research: Is the medium the message? Law and Human Behavior, 12, 477–497.

Chapter 12

Trial Consulting and Discrimination Law: An Untapped Opportunity Richard L. Wiener

The intention of this interdisciplinary discussion is to review the logic of the fundamental legal models of discrimination, especially employment discrimination, and identify places in the law where trial consultants can be useful to attorneys who litigate these types of cases. We present to trial consultants the basic outline of employment discrimination and offer to attorneys new ways to think about using trial consultants in discrimination proceedings. Psychological consultants already contribute a great deal to litigation in this area as statisticians, work evaluators, and expert witnesses in the areas of discrimination based on race (cf., Brief, 2008; Brief, Dietz, Cohen, Pugh, & Vaslow, 2000; Chugh & Brief, 2008; Fiske & Lee, 2008), sex (cf., Baker, 2005; Bisom-Rapp, Stockdale, & Crosby, 2007; Crosby, 2008), age (cf., Glover, & Branine, 2003; Hedge, Borman, & Lammlein, 2006), and disability (cf., Ball, Monaco, Schmeling, Schartz, & Blanck, 2005; McMullin, & Shuey, 2006; Schartz, Hendricks, & Blanck, 2006). The existing literature in these areas focuses on the role of a psychologist in studying and documenting discrimination in the workplace. This chapter identifies some new and interesting ways in which psychologists can assist attorneys in discrimination proceedings first from a substantive point of view, that is, by assisting the attorneys to collect evidence and satisfy the elements of law to the advantage of their clients. Experts (psychologists, statisticians, economists, etc.) can assist attorneys in preparing the substantive case to present to the judge or jury. In addition, the chapter offers some insights into the litigation itself, offering some suggestions about how psychologists can act as litigation consultants assisting the attorneys in constructing the soundest arguments possible with the facts of a particular case. We have organized the chapter around some basic models of discrimination, showing how both substantive experts and trial consultants can contribute to the plaintiff and defense in discrimination claims. As we present each model, we outline the law, then present a current example of a case, and analyze what substantive R.L. Wiener (*) Department of Psychology, University of Nebraska/Lincoln, 338 Burnett Hall, Lincoln, NE 68588, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_12, © Springer Science+Business Media, LLC 2011

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experts and trial consultants might offer to each side of the case. We review models of discrimination for disparate treatment, mixed motivation, systemic disparate treatment, disparate impact, disability, and sexual harassment.

Intentional Discrimination For some theories of discrimination, the plaintiff has the burden of showing that the defendant intentionally considered a protected status (i.e., race, gender, religion, ethnicity, or age). Thereafter, the outcome of that intentional discrimination had an adverse impact upon the plaintiff or a class of plaintiffs. The role of trial consultants and substantive social science consultants in these types of cases is rich and varied. First, we consider the models and roles of consultants in disparate treatment ­including disparate treatment of an individual claimant (based on race, color, religion, sex, national origin, or age), mixed-motive cases, and systemic disparate treatment that affects a class of individuals.

Disparate Treatment of an Individual Claimant Title VII.  In the language of psychology, a disparate treatment case depends upon a legal judgment that the court and/or jury must make about whether an agent covered under Title VII had intentionally discriminated against an employee because of the employee’s protected status. Simply showing an association between an adverse impact and class membership is insufficient. Instead, the Supreme Court has “operationalized” a complex burden shifting process to validate the judgment of discriminatory intent. The leading case regarding individual disparate treatment is McDonnell Douglas Corporation v. Green (1973), in which the US Supreme Court announced the order and allocation of proof in a private nonclass action suit based upon section 703(a)(1) of the Civil Rights Act of 1964 as amended in 1991. In this case, an African-American worker claimed that the company turned him down for a job because of his race. The language of Title VII states, “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…” The Court held that in a disparate treatment case the plaintiff has the initial burden to show membership in a class protected by law (e.g., racial, ethnic, religious, or sex), that the plaintiff applied for a job (or benefit) for which he or she was qualified, that the employer rejected the plaintiff, and that the employer continued to seek other qualified candidates that were not of the same protected class category as the plaintiff. If the plaintiff is able to produce evidence to support this prima facie case, the burden of proof shifts back to the employer to articulate a legitimate nondiscriminatory

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reason for the adverse treatment. The same model applies to other disparate treatments such as an employer firing or demoting an employee because of race, color, religion, sex, or national origin. In McDonnell Douglas, Mr. Greene had participated in an illegal civil rights demonstration against the company, helping to block traffic on an access road to the company. McDonnell Douglas argued that this was a legitimate nondiscriminatory reason for refusing to rehire Green, who was a former employee. The Court ruled that once the employer produces a legitimate reason, the burden shifts again back to the plaintiff to show that that reason was pretext and not the actual reason for the adverse treatment. The successful plaintiff will proffer evidence to show a pattern of discrimination at the employers’ place of business, perhaps by identifying nonminority employees or candidates who the employer treated more fairly than the minority plaintiff was treated, or perhaps by showing through a pattern of statistics that the employer regularly engages in discriminatory conduct against minority employees or candidates. Does the proof of pretext satisfy the veridicality of a legal judgment of intent on the part of the judge or jury? Prior to 1993, the courts indeed did not contest the validity of a judgment of intention if it came with the production of a prima facie case followed by a demonstration that the employer’s legitimate nondiscriminatory reason for the adverse treatment was pretext. However, one could argue that even if the plaintiff did show pretext, still absent is a demonstration of some action on the part of the employer that proves discriminatory intent. Indeed, in St. Mary’s Honor Center v. Hicks (1993), the Supreme Court took this position and held that even after the plaintiff’s showing of pretext, the jury must find that there was some discriminatory reason for the employer’s action. In other words, a legal judgment of intention in this model must point to a factor that shows that the employer, in fact, did intend to discriminate based upon the plaintiff’s protected status. It is not sufficient simply to defend the prima facie case; instead, the plaintiff’s attorney must convince the judge or jury of the discriminatory intent of the employer. In the language of psychology, the decision maker must make a positive determination of intent; it is not enough to conclude that the legitimate nondiscriminatory justification is false; the decision maker must be convinced of the discriminatory intent of the employer. Here, the Court is more concerned with protecting against a type I error (finding an effect of discrimination when one does not exist) than a type II error (missing a discriminatory action when one does in fact exist). Before discussing the role of trial consultants in Title VII cases, it is useful to consider a similar claim of age discrimination. Age Discrimination in Employment Act (ADEA).  Similar to Title VII, the ADEA Sec. 4(623)(a) (1) states, “It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age1; (2) to limit, segregate, or classify his employees 1

  The ADEA considers individuals 40 years of age or older members of the protected class.

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in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age…” In Reeves v. Sanderson Plumbing Products, Inc. (2000), the employer fired plaintiff Roger Reeves, a 57-year-old supervisor, ostensibly because he had failed to maintain accurate attendance and tardiness records on his shift. Reeves claimed that the company terminated him because of his age and proffered evidence at trial that made a substantial showing that he had kept accurate records. The jury found in favor of the plaintiff and awarded him damages accordingly. The Fifth Circuit Court of Appeals reversed, concluding that even though Reeves may have successfully produced a prima facie case and may have successfully shown that Sanderson’s claims of poor record keeping were pretext, Reeves had failed to introduce additional evidence that the company’s motivation to fire the plaintiff was his age. Upon appeal, the US Supreme Court (Reeves, 2000) adopted the McDonnell Douglas order and allocation of proof to rule in favor of the plaintiff, in part, because there was additional evidence that the jury could have used to conclude that Reeves’s age motivated at least one of the decision makers who was responsible for his dismissal. The Court held that evidence beyond the production of a prima facie case of discrimination and a showing of pretext was not necessary to win an individual disparate impact case, providing that the jury could have determined by the preponderance of the evidence that the plaintiff was a victim of intentional discrimination. While Justice Ginsburg in her concurring opinion noted that in some cases there might be a need for additional circumstantial evidence (beyond the prima facie case and the proof of pretext), those situations would be uncommon. Thus, while the McDonnell Douglas scheme for finding discrimination under either Title VII or the ADEA does require the plaintiff to carry the burden of showing intentional discrimination, the manner in which the plaintiff carries that burden beyond producing a prima facie case and demonstrating pretext is largely a matter of the discretion and judgment of the trier of fact, jury, or judge. In the end, then, the role of a trial consultant working for the plaintiff depends upon the consultant’s ability to help the attorney argue to the jury that the defendant did indeed intend to discriminate against the plaintiff (or the contrary position, if the consultant serves the defense). What help, if any, can a trial consultant bring to such a case? The role of substantive consultants and trial consultants.  Arguably, substantive consultants in disparate treatment cases have a lesser role to play than do litigation consultants. The evidence itself in individual disparate treatment cases is most likely to come out of testimony of other witnesses, documents, and old-fashioned investigative lawyering. The key issue becomes whether there is a pattern of discrimination, which is best evidenced by other workers with qualifications equal to those of the plaintiff who share neither the plaintiff’s protected class status (e.g., gender, ethnicity, race, or age) nor the plaintiff’s adverse employment outcome. However, the defense in such cases may find a psychological researcher who possesses skills in regression type statistical analyses and the ability to find legitimate explanations for discriminatory trends helpful in arguing with data against pretext, in favor of the employer’s just treatment of all employees, that is, an employer with adequate and

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high-quality data could potentially use that data, with help from a social scientist consultant, to buttress their arguments against pretext. However, the same data might make the argument in favor of pretext depending upon the relationships that the consultant uncovers in the results of the statistical analysis. The substantive question, the answer to which could assist either the defense or plaintiff, is simply, “Does a significant statistical relationship between minority status and adverse impact exist after controlling for all other legitimate reasons for such a decision?” If there is such an outcome, then that suggests that the employer intended to discriminate; if not, it lowers the likelihood that the employer intended to discriminate. The more important role for the social scientist in this type of case is that of litigation expert who can assist the attorney to apply some of the psychological models that help explain how jurors and judges are likely to draw inferences about intentionality. Some appropriate approaches might include rules and heuristics for inferring intention that rely on covariation detection (i.e., making causal interpretations as a function of information association across time and space; see Alloy & Tabachnik, 1984; Barker & Andrade, 2006; Gilovich, Griffin, & Kahneman, 2002; Hattori & Oaksford, 2007; Juslin, Fiedler, & Chater, 2006). Others involve applying theories of causal attributions (inferring causal interpretations based upon prior experience with social reality) (Heider, 1958; Kelley, 1972 McArthur, 1972; Weiner, 1986), counterfactual thinking (i.e., drawing inferences of causality according to thoughts about what might have been) (Kahneman & Miller, 1986; Mandel, 2003; Mandel & Lehman, 1996; McCrea, 2008; Roese, 1997; Roese & Olson, 1995; Wells & Gavanski, 1989; Wiener et al., 1994; Wiener & Pritchard, 1994), and models of anticipated and experienced emotion (i.e., inferring causal structure from predictions and observations of emotions in the self and others; see Baumeister, Vohs, Dewall, & Zhang, 2007; Gilbert, Brown, Pinel, & Wilson, 2000; Lerner & Tiedens, 2006; Loewenstein, Weber, Hsee, & Welch, 2001). Older approaches such as understanding correspondence bias (using unreliable information to attribute causality to other actors rather than the situation; see Choi & Nisbett, 1998; Epley, Savitsky, & Gilovich, 2002; Fein, 1996; Gilbert & Malone, 1995; Jones & Davis, 1965; Kelley, 1967; Krull et al., 1999), and the like could also be of value. A trial consultant applying these theories and empirically testing the results with mock jurors or mock juries could make significant contributions to strengthening the attorney’s case in favor of one side or the other. Such applications could assist the attorneys to strengthen or weaken the jurors’ or judge’s interpretation of the facts in favor of finding intentional discrimination. As an example of what a trial consultant might offer, consider the recently decided case, Brady v. Office of Sergeant of Arms (2008). Mr. Brady worked for the House of Representatives of USA as a shift supervisor in the Parking and Garage Security. Two fellow employees accused Brady of sexual harassment, claiming that one day at work, he grabbed his crotch in front of the two workers who then registered a complaint with the House Sergeant of Arms. The officer ordered an investigation and concluded that the incident likely had happened as reported, that even though one of the workers was not offended others were offended, and that Brady had violated the existing sexual harassment policy. The Sergeant demoted

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Brady who then filed a claim in district court claiming that he was discriminated against because of his race in violation of Title VII of the Civil Rights Act. The district court dismissed the case because Brady had not successfully demonstrated a prima facie case, but on appeal, the US Court of Appeals for the District of Columbia upheld but with a different approach. The court noted that following St. Mary’s v. Hicks, the test of a prima facie case was no longer dispositive. Thus, even if the plaintiff succeeds at his burden of demonstrating the prima facie case over pretext, the plaintiff still needs to have “produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason, and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin” (Brady, 2008, p. 494). Brady argued that the sexual harassment incident never happened and that the complainants acted out of racial motivation against him. He argued that the matter of the complainants’ credibility was a factual issue that a jury should have decided. The Court of Appeals ultimately held in favor of the district court’s summary judgment; to avoid going to a jury, all that is required is that the employer “honestly and reasonably believed” (p. 496) in good faith that the sexual harassment incident occurred. Because Brady did not proffer evidence of pretext to show that the employer did not honestly believe in its stated reason for firing Brady, the trial court had not erred in dismissing the case. The issue was not the success of the prima facie case; instead, it was the reasonableness of the purported reason for the demotion. The plaintiff needed to show that the employer had not believed honestly in the harassment complaint and had instead demoted Brady because of his race. Data could have helped the plaintiff in this case. Data collected and properly analyzed by a research scientist to show a pattern of demotions associated with race even after controlling for other factors (especially controlling for worker complaints made about a worker of the minority race) could have at least raised some doubts about the employer’s good faith belief in the honesty and reasonableness of the sexual harassment complaint. Certainly, obtaining those data would have been difficult, but if the consultant had been able to procure them and had showed a significant association between adverse actions and race, one could have supported the claim that the Sergeant’s conclusion was pretext. It is noteworthy that such a strategy is not without risk, however. If the data failed to show such an association or showed an association that disappeared after controlling for other factors such as the existence of complaints against the dismissed employees, they would have only reinforced the defendant’s claim that the demotion was one of good faith and reasonable belief in the plaintiff’s misbehavior. On the one hand, it is possible that such data would be privileged as attorney–client work product, yet still the existence of these data that argue in favor of the opponent’s case would still present significant challenges for a researcher who is under some level of responsibility to not withhold data that is inconsistent with the researchers’ reasons for collecting the data in the first place. Even without data about demotions, the issue of what is and what is not a goodfaith belief is a psychological issue about which social psychologists studying

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attribution theory could have a great deal to say. Psychologists assisting in the trial preparation could have been able to offer some suggestions about how people make inferences about the responsibility of actors blamed for wrongdoing (see above discussion). A careful examination of the testimonies in the investigation and the evidence that came forth could allow a psychologist to help either the plaintiff or the defense shape an argument about whether the employer was likely to have actually believed the sexual harassment complaints. Further, a great deal of research examines the manner in which people decide whether a social sexual act at work is or is not an action of harassment (cf., Wiener et al., 2002; Wiener & Hurt, 2000; Wiener & Winter, 2007; Wiener, Winter, Rogers, & Arnot, 2004). A psychologist hired to act as a consultant for either side in this case could have a great deal to say about whether the complainant fit the pattern of people who would have found Brady’s actions harassing. If the literature favors formation of a harassment judgment (or disfavors such a judgment) on the part of the complainant, this could have implications for the strength of the good-faith belief on the part of the employer. Consultation from a psychological consultant under these conditions could be very helpful. Similar analyses are possible for a great many disparate treatment cases. Of course, the psychologist considering the issue of trial process must help the attorney make a decision about whether the good-faith effort was likely to be veridical, and the reasonableness of such a decision depends upon the research evidence in the literature, and not upon the psychologist’s own speculations. Speculation and appeals to ill-defined and unsupported psychological expertise without the supporting research would not only be ethically questionable but also be unlikely to stand up to the counterarguments of the opposing counsel. Nonetheless, the issue of what constitutes pretext, what constitutes intention to discriminate, and how to make that argument to judges or juries is one about which psychological trial consultants could offer some expertise. As evidenced by the recent District of Columbia ruling in Brady, the issue of what constitutes a reasonable belief and what constitutes pretext is an active issue that is likely to recur in post-St. Mary’s v. Hicks disparate treatment cases.

Mixed-Motive Cases of Discrimination What happens if an employer creates an adverse impact against an employee who belongs to a protected class but the employer has at least some good cause for the decision? Can a trial consultant assist either the plaintiff or defense in a case of so-called mixed motives? After Price Waterhouse v. Hopkins (1989) (now codified in the Civil Rights Act of 1991), plaintiffs who can show that an employer considered an illegal factor in reaching an adverse impact judgment receive some Title VII protection. Hopkins was an accountant at Price Waterhouse for 5 years and had procured a contract for the company valued at about 25 million dollars just prior to going up for partnership. As was the standard procedure at Price Waterhouse, the partners wrote comments about the candidate and submitted them to a review

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committee for evaluations. The partners’ comments included many strong statements endorsing Hopkins’s character, accomplishments, independence, and integrity. However, some commented that Hopkins was overly aggressive and even abrasive and appeared as a woman overcompensating for her gender. One comment read, “She needs to walk, talk, and dress more femininely.” Price Waterhouse turned down Hopkins’ application, and she brought a suit under Title VII. Social psychologist, Susan Fiske, testified at trial that the Price Waterhouse work environment was rife with stereotype-invoking language, behavior, and cues that were capable of triggering strong gender stereotyping (Fiske, Bersoff, Borgida, Deaux, & Heilma, 1991). Although the Supreme Court’s decision did not rely overtly on Fiske’s testimony, the court did adopt a sex-role stereotype theory of discrimination that other plaintiffs have used in subsequent cases. The Court held that in this type of mixed-motive case in which there were both legitimate reasons and illegitimate reasons for an adverse judgment, if the plaintiff can show that the employer took an illegal factor (e.g., gender) into consideration when making its decision, this is a violation of Title VII. Following Congress’s amendment of the Civil Rights Act in 1991, the plaintiff who proves that a mixed motive drove the adverse decision is entitled to injunctive relief (an order issuing the adverse impact to cease), attorney fees, and costs, but not necessarily other monetary damages. After the Civil Rights Act of 1991, the employer may show as an affirmative defense by a preponderance of the evidence that even without the use of the prohibited factor the employer would have reached the same decision. If the employer fails at this defense, it is liable for damages and back pay. Of course, the best way to take advantage of this defense is for the employer to show that it made similar decisions for other employees when the discriminatory factor was absent. In the gender discrimination context, some interesting questions become: (1) Did the employer deny a benefit to male employees because they were too aggressive and abrasive? If so, then the employer may have indeed reached a similar decision without taking into account an illegal factor. (2) Did the employer grant a benefit to other women employees similarly situated to the plaintiff, but who were not aggressive and abrasive? If so, then the employer seemed to have relied on the plaintiff’s aggressiveness to reach its decision. Substantively, the arguments in a mixed-motive case have little room for psychological contribution. To be sure, testimony about the stereotype-inducing nature of a work environment like the testimony that Professor Fiske brought in Price Waterhouse could support (or detract) from the believability of other direct evidence of the employer taking into consideration an illegal factor. However, the evidence of inclusion of that factor in the employer’s decision strategy will likely come from direct testimony, documents, or witness observations. However, with regard to the issue of developing an argument that supports (or refutes) the dependence of the adverse outcome upon the illegal motivation, psychological theory and research have a great deal to offer. From a decision-making perspective, the trier of fact makes the decision about the contribution of the illegal motivation to the thought process of the employer by engaging in counterfactual thinking (see above discussion), asking “if/only” questions.

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If only the company had not taken gender (age, race, or ethnicity) into consideration, would it have reached the same decision? Psychologists have long studied counterfactual thinking and have shown that it is related to a number of factors including the emotional state of the decision maker (especially regret; see Mannetti, Pierro, & Kruglanski, 2007; Yoon & Vargas, 2005; Zeelenberg et al., 1998) and the closeness in time of the antecedents and outcomes (Byrne, Segura, Culhane, Tasso, & Berrocal, 2000; Haynes et al., 2007; Walsh & Byrne, 2004). Counterfactual thinking can trigger intense feelings of regret in decision makers producing more firmly held beliefs especially if the sequence of events, which decision makers undo, occurs in one of several favored temporal orders. However, counterfactual thinking arguments need to take into consideration the intervening factors in the causal chain that transpire between the triggering events and the outcomes of the action (Seelau, Seelau, Wells, & Windschitl, 1995; Wells, Taylor, & Turtle, 1987). Sometimes, it is easier to mentally mutate actions that occur early in the sequence and sometimes it is easier to do so when the events come before the “to be mutated” action. It is always easier to undo and make judgments about causal sequences when the events that the evaluator tries to mentally simulate are near misses, that is, events that almost were different (Gavanski & Wells, 1989; Kahneman & Miller, 1986; Miller & McFarland, 1986; Wells & Gavanski, 1989; Wiener et al., 1994). Psychologists acting as trial consultants have a great deal of expertise to bring to bear on how attorneys can successfully shape arguments about the causal contribution of the illegal motivation to the actual decision that the employer has reached. The issue is largely one about how people draw inferences about the causal chain that connects antecedents (legal and illegal factors) to employer judgments, and this inference is largely a product of counterfactual thought. Consultants armed with the literature of counterfactual thinking can not only help either side develop stronger arguments but also test out the arguments empirically using mock jurors presented with different types of counterfactual presentations. For example, will attorneys be more persuasive if they elicit examples of men who employers treated adversely because of aggressive behavior or of women who employers treated well in the absence of abrasive and overbearing conduct? Is there an optimal mixture of both types of arguments? What are the most effective examples of aggressive behavior on the part of men to make the former point, and what are the most effective examples of successful conduct of women to make the latter case? Researchers could collect data using both types of arguments, or mixtures of arguments to develop decision-making trees or graphs using path analysis to determine what types of arguments would be strongest with different fact patterns. This type of psycholegal analysis could be very effective in mixed-motive cases. Trial consultants can only be helpful in mixed-motive cases if the court allows circumstantial evidence as well as direct evidence, that is, if the evidence that the employer relied on an illegal factor and that the employer would not have made the same decision in the absent of that factor must be direct evidence only (e.g., statements, documents, or admissions), then the trial consultant’s knowledge of judgment and inference processes is not very helpful. However, in Desert Palace v. Costa (2003), the Supreme Court upheld the value of circumstantial evidence in these types of

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cases. Catherine Costa was a woman employed as a warehouse worker who had a number of problems with management and other employees, including an altercation with another employee (a physical fight in an elevator) that resulted in her manager firing her. At trial, she showed that her supervisor singled her out for stalking and that she received harsher discipline than men did for the same actions. The Supreme Court sided with the plaintiff, holding that direct evidence is not necessary for a mixed motivation instruction to the jury. Psychologists can be very helpful to attorneys hoping to make mixed-motive arguments on either side of this issue by taking advantage of the counterfactual thinking literature. Consider the case of Wright v. Murray Guard, Inc. (2006), in which Wright served as a lieutenant security guard for Murray Guard from December of 2002 until July of 2003 when the company terminated him, citing reasons of allegations of sexual harassment that others brought against him, poor job performance, and failure to follow procedures. An African-American female guard (Bradley) brought the main complainant against Wright in the sexual harassment case. The company had previously disciplined Bradley by moving her into a different plant because she had failed to follow procedures and had allowed an unauthorized individual to enter the Nike facility in Memphis. Wright was the investigator in the Bradley case, and he was the one who had concluded that Bradley had failed to follow proper procedures. Later, a Murray CEO received an anonymous letter suggesting that Wright had sexually harassed several individuals at the Nike Plant including Bradley. Murray later reinstated Bradley as a guard at the Nike plant but reprimanded her for her conduct. Wright sued under Title VII, 42 U.S.C. Sec 2000e-2 and included among other claims the allegation that the company had fired him, in part, because of his race and gender, even though there were other legitimate reasons for the company’s adverse decision. The plaintiff offered a mixed-motive theory of disparate treatment (Desert Palace v. Costa, 2003). The district court dismissed the case in summary judgment because it found that Wright had not “…. presented evidence, direct or circumstantial, from which a reasonable jury could logically infer that [a protected characteristic] was a motivating factor in [the defendant’s adverse employment action against the plaintiff].” Harris v. Giant Eagle, Inc. (2005, p. 297). Wright argued that evidence of the company’s use of an illegal factor in its judgment process was the fact that although Bradley had an opportunity to answer claims against her, Wright had no opportunity to refute the sexual harassment allegations against him. Wright alleged that Murray Guard had not allowed him to refute the allegations because he was a Black male guard. Thus, Wright invited the court to engage in a counterfactual thinking experiment in which he asked the court to mentally mutate the event and ask, “If only Wright had not been a Black male, would the company have fired him?” The problem with this counterfactual is that there are other differences between Wright and Bradley in allegations of misconduct, namely, other workers had accused Wright of multiple acts of sexual harassment, and the company accused Bradley of not following company procedures. A psychologist trial consultant would have warned against relying on a counterfactual that mutated multiple elements (sex and race) in the context of other unequivalent

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actions. At the very least, it would have been helpful to test out the arguments before offering them at court. The lower and upper courts held that the inference of illegal consideration of sex and race was not valid because of differences in the workers’ misconduct. The counterfactual thinking literature would have predicted this outcome.2

Systemic Disparate Treatment Model The systemic disparate treatment model applies social science analysis to problems of systemic mistreatment. The analysis begins with the null hypothesis, that is, the hypothesis that an employer acts with unbiased decision making, without the intent to discriminate against any protected class. If enough evidence is amassed (meeting the preponderance of the evidence standard of proof) to throw the null hypothesis into doubt, then the trier of fact can reject it and conclude that the decision-making process proceeded with intent to discriminate against a protected class. For example, in Teamsters v. U.S. (1977), the government attempted to show that the Teamsters hired African-Americans and Hispanics at a disproportionately lower rate than it hired Whites for coveted line driver positions (which paid more) and that those minorities that it hired served in low paying and undesirable jobs working as local drivers. In fact, of 1,828 line drivers, only 8 (0.4%) were Black and fewer (5 or 0.3%) were Hispanic. Because there were a much larger proportion of Black and Hispanic individuals living in the community, the Court interpreted this evidence as

 In its 2009 term, the US Supreme Court took a case in which a 54-year-old claims administrator working for the FBL Financial Services relied on a mixed-motive theory in an age discrimination case that he brought under the Age Discrimination and Employment Act (ADEA) of 1967. FBL demoted the older worker assigning his responsibilities to another who was ostensibly more capable of carrying out his old duties. The new worker was younger than the complainant and prior to this action, the complainant had supervised his replacement. Although there was no loss of wages for the plaintiff, his job involved less responsibility and status. A jury receiving a mixedmotive instruction returned a verdict in favor of the older worker. The company’s appeals eventually reached the US Supreme Court, which pointed out that when Congress amended the Civil Rights Act of 1991, it codified the burden switching model of mixed-motive cases for Title VII litigation but when it amended the ADEA it did not include similar language. The Court held that because the language in the ADEA still reads, “[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age” (italics included by the Court), the ADEA does not provide for the switching burdens that Title VII allows in a mixed-motive case (Gross v. FBL Financial Services, 2009, p. _____ ). As any intervention from Congress is absent, the ADEA as currently written and interpreted by the US Supreme Court considers causality in age-based disparate treatment cases to be “but for causality,” and, therefore, requires that the plaintiff must show that age was the cause of the adverse impact and not simply a contributing factor. In summary, the mixed-motive model and jury instruction is currently not available in age discrimination suits but is still a viable theory in sex, race, ethnicity, and religion cases.

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an “inexorable zero.” Inasmuch as the difference in hiring rates (99% of the line drivers were White) spoke for itself as evidence of discrimination, it required no further tests to show that the disproportionality was great enough to make implausible the assumption that the Teamsters acted without discriminatory bias. Furthermore, the majority of the African-American and Hispanic drivers indeed had lower paying city driver jobs. Buttressing the numeric data were the testimonies of 40 individual workers who claimed that they were the victims of intentional discrimination. The Supreme Court held in Teamsters that without another explanation, a nondiscriminatory decision process would produce a sample of employees that reflects the general parameters of the community from which the company recruits workers. Rejecting the null hypothesis in a systemic disparate treatment case has serious implications for the defendant. The court will grant injunctive relief outlawing the process that produced the initial discrimination and creating a rebuttable presumption that supports damages, back pay, and the like for all members of the affected class of employees or applicants. The amount of money in dispute may be staggering. The interests at stake in systematic disparate impact cases are significant. The issue how the courts ought to test the absence of a discrimination hypothesis is an important concern. Furthermore, testing assumptions with numerical data, that is, the decision of whether or not to reject the null hypothesis, as any social scientist can attest, is not always so clear. Of course, one of the ways in which the social sciences solve that problem is to conduct statistical tests that estimate the likelihood of a type I error, rejecting the null hypothesis when it is, in fact, true. By convention social scientists have decided not to reject the null if the probability of a type I error is greater than 0.05 (5 out of 100). The logic of simple hypothesis testing and available ways of calculating type I and type II errors are the standard intellectual fare of all psychologically trained consultants. The Supreme Court in Hazelwood School District v. United States (1977) faced a situation in which the data did not result in an “inexorable zero” so that the court had to fashion a rule to decide when to reject the presumption of unbiased or nondiscriminatory intent. Hazelwood hired teachers using an unstandardized system that allowed the school principals nearly unlimited discretion in which they invited applicants for interviews at the school and retained unchallenged authority to decide whom to hire. As a result of this process, in 1973 there were 22/1,231 or 0.2% African-American teachers in the school system. In 1970, the general St. Louis community (which includes the Hazelwood area) had hired 15.4% Black teachers (in the city and county areas). The court of appeals for the Eighth Circuit (affirmed on appeal by the US Supreme Court) decided that the proper comparison was between Hazelwood’s teaching staff and the “racial composition of the qualified public school teacher population in the relevant labor market.” In the 1973–1974 academic year, Hazelwood had 1.8% African-American teachers in its system, but the St. Louis county claimed 5.7% of the same in its labor force. The difference between the totals was more than 5 standard deviations and that produced a significant difference under the binomial sampling distribution.

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The role of substantative and trial consultants.  While the law makes clear the decision structure that the courts require in a systemic disparate treatment claim, applying the steps to the facts of any given case is anything but simple and likely requires the assistance of a statistician, preferably a social scientist familiar with both the content area and the family of regression methodologies. Following Hazelwood (1977), systematic disparate treatment cases turn on an intent-based model. The plaintiff must show that the actual numbers of the members of a protected class under Title VII (age, race, gender, religion, or ethnicity) or the ADEA (age) are less than what one would expect based upon the existing labor market (in an employment case) and that the difference between the numbers is statistically significant. In Hazelwood, this meant that the actual rate was two or three standard deviations less than the ideal number, which should not have resulted without intentional discrimination, and that difference was statistically significant using a binomial distribution. There are, of course, other means of demonstrating a statistically significant association between a protected class and an adverse employment decision, such as simple correlations, chi square contingency tables, multiple linear regression, and logistic regression if the adverse impact is a dichotomous factor such as promoting, hiring, or laying off employees. The critical issue for the courts is whether the researcher has defined the relevant sample (actual sample) in an interpretable manner and whether the statistician compares that rate to the correct universe (e.g., labor market). In addition, the Supreme Court in Bazemore v. Friday (1986) acknowledged that statistical studies that take into account other factors that might explain away an association between a protected factor and an adverse outcome are preferable. However, the justices held that “[n]ormally, failure to include variables will affect the analysis’ probativeness, not its admissibility” (p. 400). The Court held that even if specific control factors that might be correlated with protected factors (like experience or preparedness) were not part of the statistical model predicting an adverse outcome, the trial court should still admit the statistical evidence, allowing the trier of fact to consider it in light of the other evidence in the case. Identifying the correct samples to compare, building an appropriate regression model, and testing the resulting statistical associations are well within the expertise of psychological researchers acting as trial consultants. This is true whether the consultant works for the plaintiff and has the task of defining and defending the analysis or stands with the defense and has the task of critiquing and refuting the analysis. One case that points out the opportunities realized and missed for psychological research consultation was Adams v. Ameritech, Services Inc. (ASI) (2000), in which the Seventh Circuit Court of Appeals upheld the appellants’ right to use statistical data to try to prove an age discrimination disparate treatment case. ASI came into existence to service other telephone companies after the breakup of the American Telephone & Telegraph Company system. ASI performed a variety of services for its operating companies including marketing, sales, billing, finance, and information technology. In 1992, the president of the company decided that ASI needed to downsize (as did many companies in the early 1990s) to increase its competitiveness. The plan for downsizing included a voluntary component that offered pensions

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and an involuntary component that consisted of targeted layoffs. ASI intended to reduce the number of managers working for the company by 15%. The involuntary termination program, Company Resizing Program, or CRESP consisted of three stages. In stage 1 the planner placed employees into 102 groups of similar skill and salary levels and ranked the members of each group in order of favorability so that the bottom 30–35% in each category were the “at-risk” employees. At the second stage, the managers considered additional factors and then reranked the employees in each group according to their irreplaceable job skills, experience, and knowledge, job performance, leadership criteria, and growth potential. The planner acknowledged that growth potential, the individual’s likelihood to grow and change with the business, or their advancement potential would favor younger employees. In the end, ASI laid off 1,320 managers (almost 20%), 591 of whom volunteered to take the pension benefits. The plaintiff’s expert presented data that compared the ASI’s layoff for all managers according to age group in 5-year intervals in 1992 and found higher rates for the intervals with ages higher than 40 as compared to those lower than 40. The defendant’s expert examined the same data for each CRESP group at the stage 1 process and found smaller age differences. The plaintiff’s expert then showed that 62.6% of the 1992 terminations were 40 years of age or above, even though they comprised only 58.1% of the workforce, and that in 1993 the older employee layoffs (40 or above) accounted for 79.3% of the terminations but only 61.3% of the labor force. These differences were more than two standard deviations apart on a binomial distribution so that they were statistically significant. The district court ruled in summary judgment in favor of the defendant on the disparate treatment claim holding that the underlying information was unreliable. Furthermore, the analysis did not show that age was the cause of the differential layoff pattern only that it was not due to chance, the analysis did not take into account other nonage-related variables, the consultant was not familiar enough with the procedures and relied only on the plaintiff’s descriptions, and that the jury would find the reports too confusing. A psychological consultant in a case like Ameritech could offer assistance at several levels to either the plaintiff or the defendant. At a substantive level, consultants working for either side should take seriously the issue of ruling out alternative explanations for the age-related layoffs by conducting regression analysis that could take into account other factors correlated with age such as job skills, experience, knowledge, job performance, leadership criteria, and growth potential. If after controlling for these factors, age was still a significant predictor of layoffs, then that would bolster the plaintiff’s arguments that the company relied upon the age of the employee to make its final decisions. On the other hand, if any one of these or any other business related factor was so significantly associated with age that it removed the age termination relationship, then the plaintiff’s argument showing that the terminations were intentional discrimination would face a serious and perhaps insurmountable challenge. These analyses are standard, easy to perform provided that quality data are available, and probably should have been conducted before the attorneys presented the case at the trial level.

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Second, the consultants should examine the different ideal workforce samples to use in the comparisons between the percent of employees terminated because of age and the percent of older people in the workforce. What should the workforce estimate be? All people in the workforce 40 years or older? All older people with management experience? All older people in geographic areas surrounding the worksites? There are many possible comparison groups; some might show significant discrepancies with the termination levels at ASI, and some might not. Careful analysis of the comparison groups including research examining the differences between the ASI termination rates and the percent of workers above 40 in the ideal sample could show different findings for the main statistical comparisons. The consultants on both sides of the case should perform these analyses and be prepared to make substantive arguments in favor of the most advantageous ideal workforce sample for plaintiff or defendant. Of course, those arguments will need to be persuasive on logical and substantive grounds, not merely because they produce statistics favorable to the client’s case. Attorneys working closely with psychological consultants may be best able to construct the most persuasive arguments. Finally, as the appellate court pointed out, the presentation of these data can be confusing to lay people unfamiliar with complicated statistical concepts. This could be a critical issue for both sides as they try to convince a jury of their arguments at trial. A psychological consultant familiar with statistical analyses and the manner in which people process statistical information could develop several different approaches using demonstrative evidence and statistical charts (cf., Nisbett, Krantz, Jepson, & Kunda, 1983; see also the Chap. 10 by Nemeth). The best strategy would be for the consultant to conduct several mock trials and focus groups testing out the different approaches, finally settling on the one that conveys the information to a jury in a way that is understandable, accurate, and favorable to the client. After presenting different approaches to different groups, the consultant could use a variety of qualitative and quantitative techniques to examine the mock jurors’ understanding of their arguments. There are indeed many ways to present statistical data in charts, tables, and narratives with examples. Some combination of the methods would be most likely to assist the attorneys in arguing almost any type of systemic disparate treatment case. In the end, the criterion of most importance would be the ease with which a combination of materials best conveys the client’s message to a lay jury.

Discrimination Without Intent For some theories of discrimination, the plaintiff does not need to show specific intent on the part of the defendant. Instead, it may be enough to show that the plaintiff was the victim of a neutral factor that produced a high rate of adverse impact or that because of gender or disability the employer created a work environment that prevented the plaintiff from performing as well as others in nonprotected classes. Here, we examine the role of consultants in cases that do not require the trier of fact to infer intentional discrimination on the part of the defendant (including

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disparate impact cases under Title VII and the ADEA, Americans with Disability Act discrimination cases, and finally sexual harassment cases).

Disparate Impact Theory In Griggs v. Duke Power Company (1971), the Supreme Court held that following the Civil Rights Act of 1964 not all illegal discrimination need involve intent on the part of the defendant. According to the Court, when Congress passed the Civil Rights Act, it intended to remove all artificial and unnecessary barriers to employment when those barriers functioned to discriminate because of race or other impermissible classifications. As a result, even an action or policy that appears to be neutral, that is, one that is neutral on its face cannot be allowed to continue to create discriminatory disparities. In 1955, Duke Power Company required a high-school diploma for applicants that it hired in any department other than the lowest labor division, and in 1965 new employees had to “pass” two employment tests (i.e., the Wonderlic Personality Test and Bennett Mechanical Comprehension Test). While the high-school diploma and psychological tests constitute neutral selection factors (neither discriminates against protected classes on its face), the selection process at Duke resulted in disproportionate ratios of Black and White workers. The rate of African-American workers passing the high-school diploma criterion and working outside the labor division was 12%, while the rate of White workers was 34% so that the rate of adverse impact (the ratio of the disadvantaged group compared to the advantaged group) was equal to 0.35. When the ratio of the disadvantaged to the advantaged group falls below the cutoff point of 0.80 (80%), this constitutes evidence of disparate impact as the result of a neutral policy. For the aptitude tests, the rate of passage of Blacks to Whites was even lower (0.06–0.58 or slightly more than 0.10), again demonstrating that the neutral policy was creating a disparity that disfavored a group that was defined according to a protected factor, race here. In Connecticut v. Teal (1982), the Supreme Court narrowed the disparate impact theory holding that the neutral factor that produces an adverse impact must be a specific articulated factor and not simply a disproportionate hiring outcome. Connecticut required employees to pass a written exam to attain permanent promotion to the position of Welfare Eligibility Supervisor and while only 54% of Blacks passed, 79% of White workers did the same producing a disparate impact ratio of 68%, which falls short of the 80% cutoff. However, in selecting people to promote, the state looked beyond the test and considered past work performance, recommendations, and seniority, which actually produced a hiring ratio that favored Blacks over Whites. Nonetheless, the Supreme Court ruled that the test, although neutral on its face, did produce a disparate impact and was in violation of Title VII. The Court reasoned that Congress meant to protect individual workers against disparate impact and not whole categories of workers; therefore, a “bottom line” defense failed because the contested neutral practice still discriminated against individual

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African-American workers in practice. Following Teal, unless it is impossible to separate the practices that produce a disparate impact into its component parts, a plaintiff cannot claim disparate impact and a defendant cannot defend against it on the basis of the “bottom line” selection outcome. It is noteworthy that defending a selection procedure as indivisible or analyzing it into its component stages is a work that psychological consultants are well suited to perform. Following the Civil Rights Act of 1991, the defendant in a disparate impact case has the burden of showing the neutral factor that produced the adverse impact is “job related” and “consistent with a business necessity” by the preponderance of the evidence to successfully and affirmatively defend against a disparate impact claim (Lanning v. Southeastern Penn. Transportation Authority, 1999). However, under the Civil Rights Act (1991) Sec 703(k) (1) (A) (ii) even if the defense succeeds in carrying this burden, if the plaintiff can demonstrate an alternative business practice that is not discriminatory in its impact, and if the defendant chooses not to use that procedure, then the defendant is still liable. For example, if there are two selection procedures for high-school teachers, both of which are positively and significantly related to successful teaching, but one discriminates by protected class (say gender) and the other does not, it is the duty of the school to use the test that does not discriminate. The role of substantive and trial consultants.  It is probably more natural for attorneys trained to approach analytic tasks from a humanistic as opposed to a social science perspective to look to intention-based theories than impact theories of discrimination. However, the two theories often intertwine and in some cases, the application of multiple theories might be the best approach. Still, it is easy to miss the possibility of a disparate impact case until it is too late to pursue it, perhaps because of the unfamiliarity of the statistical logic upon which the case must proceed. Furthermore, because of the similarity of these two types of claims and because both are sometimes available under Title VII, attorneys unfamiliar with the statistical logic that forms the basis for a disparate impact case may argue those cases as if they were disparate treatment cases. This is exactly what happened in Johnson v. Nashville and Davidson County (2008), where the assistance of a research scientist acting as a trial consultant might have been most helpful. In Johnson v. Nashville and Davidson County (2008), two plaintiffs, sergeants in the Nashville Police Department, applied for promotion to lieutenant along with 150 other candidates. The department’s selection process included written tests, which served as an initial screening device followed by an evaluation at the department’s assessment center to determine if the candidates who passed the test were suitable to serve as lieutenants. Both the plaintiffs survived the screening test (one ranked fifth and the other ninth) and proceeded on to the assessment center evaluation. The department assessment center applied a “slide banding” method to determine which candidates to promote to lieutenant and that process recommended several African-American and female candidates, but not either of the white male plaintiffs. The plaintiffs complained that the state’s assessment center favored African-Americans and women regardless of their scores on the screening test. They filed an equal protection clause claim along with a separate Title VII claim

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and several other state claims, which the district court dismissed. The plaintiffs argued that the assessment center was an example of misused discretion, which would have supported a disparate treatment rather than a disparate impact claim. The district court dismissed all the plaintiffs’ claims, in part, because the plaintiffs did not identify the assessment center as a neutral policy that discriminated against their candidacies because of their race and gender. The district court would have been somewhat sympathetic had the plaintiffs made a stronger disparate impact claim arguing that the assessment center was a neutral procedure that discriminated against white males. However, counsel in this case did not provide the statistical arguments to support a disparate impact theory in the original pleadings. Furthermore, the data reported in the case showed that the white policemen but not the Black or female officers were denied promotion following the “banding method” even after the white males had passed the screening test. Of course, without examining the data for the other candidates, it is difficult to determine if it would have yielded results reaching the 0.80 disparate impact criterion. Still, it is quite possible that a knowledgeable psychological trial consultant conducting such an analysis could have assisted the plaintiffs in this case. Attorneys might find the statistical training of psychological trial consultants useful in making disparate impact cases. Defense attorneys who often work for large firms representing corporations in employment discrimination cases are at a distinct advantage in that they have greater access to social science trial consultants to assist with the relatively rare occurrence of disparate impact cases. Nonetheless, the summary judgment against the plaintiffs in Johnson v. Nashville suggests that it might have been worth the time for those attorneys to have sought the input of trial consultants on the allegations of discrimination, if only to estimate the likelihood of successfully calculating adverse impact in the case. In addition, the trial consultant familiar with organizational process and procedure in workplace settings could be helpful to attorneys trying to identify specific components of the selection, promotion, or firing processes that appear neutral on their faces but nonetheless result in a disparate impact on a protected class. Although the inference of intention, which psychological trial consultants can be most helpful with, is not at play in disparate impact cases, if the case does go forward to a jury the trial consultant can be useful in assisting the attorneys in developing and testing the most successful means of presenting complicated statistical arguments to the triers of fact. Once again, focus groups, mock trials, and even juror surveys could assist the trial consultant and the client in understanding when and how lay people are likely to understand and misunderstand arguments about selection rates, firing rates, odds ratios, and the like (on these techniques generally, see Chaps. 4 by Winter and Robicheaux, and 5 by Belli and Wingrove). Even more fundamental for a plaintiff’s attorney, a workplace expert in the content area of the dispute could help identify a neutral factor, which produces the 80% disparate impact ratio favoring the majority group. For the defense, it may be useful to have an expert who could testify that the decision process is indivisible and it cannot be subdivided into identifiable parts. This would be especially helpful if the evidence shows that the whole process does not discriminate. Similarly, a substantive consultant

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for the defense may help the client argue that the neutral factor is a business necessity and job related and show data that supports the relationship of the neutral factor to job performance. For example, if Nashville could have shown that scores on its screening test and on its assessment center predict successful job performance, it would have greatly assisted the defendant in making its case. Just as a trial consultant can use regression statistics to show disparate treatment (e.g., age predicting layoffs), the same types of analyses have the potential to demonstrate the job relatedness and business necessity of neutral factors. Before leaving the topic of disparate impact, it worthwhile to mention the most recent development in Constitutional case law, which may offer some opportunities for the use of trial consultants in determining what constitutes, “a strong basis in evidence” that an employer is justified in deciding not to use a selection procedure that the employer has already started to make use of or that the employer is intending to use to make hiring or promotion decisions. In Ricci v. DeStefano (2009), firefighters from New Haven, Connecticut brought a disparate treatment suite against the city who had jettisoned results of a testing instrument developed to select and promote firefighters to the positions of lieutenant and captain. The city hired an industrial organizational psychology consulting firm to develop a test for selection purposes. The firm conducted a job analysis through the use of surveys and ride along observations with the firefighters to produced a test that included both oral and written components. One hundred and eighteen firefighters took the qualifying exam, and the results showed a strong adverse impact in which no AfricanAmerican firefighters succeeded in qualifying for promotion, while a number of Whites did qualify. In response to the threat of a disparate impact case, the City decided not to certify the results of the exam. The US District Court for the District of Connecticut found for the city in a summary judgment, which the Second District Court of Appeals affirmed. The District Court adopted the City’s “goodfaith” belief that had it acted upon the test scores it would have been subject to a Title VII suit brought by the African-American and Hispanic firefighters. The US Supreme Court reversed holding that the City had acted with discriminatory intent inasmuch as it jettisoned the test results because too few AfricanAmericans competed successfully on the test. To avoid liability the City had to show more than a good faith belief that it would not have fared well in a disparate treatment case. Instead, the Court held that “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action” (p. 17). A defense against the disparate treatment action requires that an employer have a strong basis to believe that the neutral action (here, the selection tests) would not pass as a job-related business necessity action and/or that the plaintiffs would be able to identify an equally valid, less-discriminatory alternative that served the employers’ needs, which that the employer failed to make use of. Only under these conditions would failing to use a selection procedure because of threatened disproportionality not rise to the level of a disparate treatment action.

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It is not clear how far this case will generalize. Could future plaintiffs need to demonstrate a strong basis in evidence for the absence of a job-related business necessity or the availability of a less discriminatory selection alternative to avoid summary judgment? It is clear that at the very least employers need to take very seriously the job-related, business necessity justification when contemplating using new or old procedures for promotion and hiring. Selecting procedures that do not have a valid connection to job performance demonstrated ahead of time can result in placing the employer in a position where dismissing those procedures, if they show adverse impact after the fact, could result in a Title VII disparate impact case and at the same time, not dismissing such results could produce a disparate treatment case. Seeking the assistance of a substantive consultant to help determine the validity of existing procedures in light of both the current case law and the state of the science could be invaluable to avoid litigation. For example, in Ricci, one alternative procedure with less discriminatory impact that the Supreme Court rejected for New Haven was the use of assessment centers. Yet, in the Johnson case (see above), another court treated functional assessment centers as a neutral procedure that might have produced an adverse impact. Substantive and trial consultants can assist lawyers and employers in thinking carefully about the characteristics of safe and not so safe promotion and selection tools in light of current litigation standards. They can also assist attorneys trying these cases in evaluating the strength of a potential case based upon the research literature in a given work-related area and the likelihood of a jury evaluating the procedure in a favorable manner.

Disabilities and Reasonable Accommodations The Americans with Disabilities Act 42 U.S.C. § 12101 et seq. prohibits covered agencies (including private employers, public entities, and government agencies) from denying an accommodation for persons who suffer from a disability, within the meaning of the act. The individual must be qualified for a position with accommodations, the accommodations must be reasonable and the accommodations may not impose an undue hardship upon the covered agency. Unfortunately, the statute provides little definition of its central concepts such as disability and reasonable accommodation so that the case law that originally applied to the act has had a great deal of discretion in defining its terms. More recently, Congress in its 2008 session has passed amendments to the act that attempt to fill in some of the definitional problems (42 U.S.C. Sec. 12101-12213). We examine the case law that helped give meaning to the statute and then return to the 2008 amendment that resolved some (though not all) of the courts’ contradictory interpretations of the law. In the lead case that gives meaning to the law, Sutton v. United Airlines (1999), the plaintiffs, two twin sisters with myopia but who saw with 20/20 vision with corrective lenses, filed applications to serve as commercial airline pilots and were disqualified because they failed their visual acuity tests at the time of their interviews. The women filed a claim in district court and upon ultimate appeal the

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Supreme Court held that the ADA did not protect the sisters because neither had a disability within the meaning of the ADA. According to the Court, a disability is a physical or mental impairment that substantially limits one or more of the major life activities; furthermore, under the law, the plaintiff must show that there was a record of such impairment or show that the defendant regarded the plaintiff as suffering from such impairment. An impairment that has the potential to alter a major life activity includes “…any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental  illness, and specific learning disabilities.” Under EEOC regulations, which do not by themselves carry the weight of law, the impairment must substantially limit one’s ability to perform a major life activity that the average person in the general population can perform including caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (Note that the Amendments of 2008 codified this EEOC regulation, identifying these functions as major life activities. Major life activities now “…include but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, breathing, learning, reading, concentrating, thinking, communicating, and working.”) (Americans with Disabilities Act of 1990 as amended in 2008, 42 U.S.C. § 1201 3(2)a). In Sutton, the EEOC argued that the courts should determine whether an individual is substantially limited in a major life activity without regard to any mitigating measures (medicines, assistive devices, or prosthetic devices). The Supreme Court disagreed, holding that the Congress meant the ADA to determine disability with reference to mitigating or corrective measures, taking into account the positive and negative affects of those measures. The Court concluded that the target of the act was individuals and not groups. The justices went on to say that if the Congress was referring to the uncorrected state, then the ADA would have covered many more than the estimated 43 million people that it covered in 1999. Under ADA, the Sutton twins did not have a disability because with mitigating measures (eyeglasses) their impairments did not limit a major life activity. Therefore, the airlines did not violate the ADA in turning down their applications. The 2008 Amendments overturned the mitigating measures holding from Sutton stating that “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures …” Ironically, for the Sutton Court, the amendment goes on to list a number of medical devices and technologies that are to be disregarded when examining major life activity limitations but ends by stating that “ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a life activity” (42 U.S.C. § 1201 4(E)(i)). Nonetheless, removing the mitigating measures qualification from most impairments under the ADA extends its reach, making the usefulness of trial consultants who estimate the

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impact of impairments on limiting life activities even greater. Trial consultants armed with empirical data that show the connection between specific mental or physical impairments and limitations in the enumerated life activities (see above) could assist attorneys in making and refuting these arguments. Furthermore, with the extended application of the ADA, there could be a greater need for consultants to apply the psychological theories of attribution, association, and counterfactual thinking to assist counsel in fashioning ADA arguments to offer to judges and juries. Further delineating the meaning of the ADA, the Third Circuit Court of Appeals considered whether a nurse who, after an injury caused by lifting a patient, could not lift more than 15 or 20 lb was qualified to perform her nursing duties (Deane v. Pocono Medical Center, 1998). The Court held that a worker is qualified for a job if, with or without reasonable accommodations, the individual possesses the skill, experience, education, and other job-related requirements and can perform the essential features of the job. The definition of essential features of the job turns on several types of evidence including the employer’s judgment of essential features, preexisting written job descriptions prepared for advertising, or interviewing for the position, and formal job analyses as might be completed by a social scientist expert in job performance. The Third Circuit overruled the lower courts and determined that Nurse Deane was qualified for the nursing position and that the hospital owed her reasonable accommodations. The ADA does little better in defining the issue of reasonable accommodations. Following the lead of the Supreme Court in Sutton, the lower courts decide which accommodations are reasonable on a case-by-case basis. The emergent rule seems to be that a reasonable accommodation is one that allows an individual with a disability to perform the essential features of the job without imposing an undue hardship upon the defendant (U.S. Airways, Inc. v. Barnett, 2002). An undue hardship is not one that is defined solely in terms of financial cost but instead must limit the ability of the employer to operate its business or disallow the rights of other workers, such as disallowing other workers with greater seniority but without a disability equal access to remuneration or other desirable conditions of employment. The role of substantive and trial consultants.  One area in which the ADA offers some of the most interesting work for substantive consultants and applied researchers concerns claims that arise out of mental illness. The exact and original language in the ADA defined a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” (42 U.S.C. § 1201 (2)(A)). Nonetheless, plaintiffs have had a difficult time convincing trial courts that mental illness is an impairment that limits a major life activity. The absence of mental health research demonstrating the impact of mental illness on major life activities makes claims of mental illness under the ADA challenging. To be sure, there are volumes of work examining mental illness impairments, but little of it addresses the issue of how different types of mental illness limit major life activities as the law assesses such limitations. While much of this work should proceed in the course of academic research outside of the dynamics of a specific case, it is nonetheless feasible for substantive trial consultants to contribute to this work. In fact, trial consultants working on specific cases might be helpful to

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the specific case and to the general problem of eliminating discrimination due to mental illness by collecting data to demonstrate how specific forms of mental illness limit major life activities. Cases that intertwine mental illness and physical illness are very likely the most promising for furthering an empirical basis for analyzing the impact of mental illness on major life activities. For illustrative purposes, consider a recent and complicated motion for summary judgment in Dilbeck v. Whirlpool Corporation (2008), which the plaintiffs brought under the older version of the ADA before the 2008 Amendments. Anne Dilbeck went to work for Whirpool as a tubing production worker but applied for and was accepted into the company’s apprenticeship program to become a millwright. Millwrights install and maintain industrial machinery, a job that takes a great deal more training and earns a great deal more money than tubing production work. The apprenticeship required Dilbeck to complete 8,000 h of on-the-job training in a 4-year period, which she was unable to complete because she suffered from irritable bowel syndrome and depression, both diagnosed by medical doctors. Dilbeck took advantage of the Family Medical Leave Act and took some time off; however, as a result, she could not finish her apprenticeship hours in the 4-year period. Although the company knew that Dilbeck was suffering from two illnesses, which triggered reciprocal attacks, the CEO removed her from the program, resulting in a substantial loss of salary because the millwright program paid considerably more than the tubing position did. Dilbeck filed a grievance that went unanswered at the company and she eventually brought an ADA suit to district court. In denying Whirlpool’s motion for a summary judgment, the court concluded that Dilbeck had met the burden of establishing a prima facie case showing first that she suffered from impairments recognized under the ADA (Irritable Bowel Syndrome and Depression). Although the defendant argued that Dilbeck was not qualified for the position as millwright because she had not finished her 8,000 h of apprenticeship, the court found this to be a genuine issue of material fact and that jurors should decide whether the 8,000 h of training in 4 years was an essential job function for millwrights. However, the court was not so agreeable to the plaintiff when it turned its attention to whether either of the illnesses (Depressive Disorder and Irritable Bowel Syndrome) substantially limited a major life activity. It did so by considering the nature, severity, duration, and the permanent or long-term course of the impairments. It held that the recurring and severe IBS episodes are not curable and that this illness did limit two major life activities: Dilbeck’s ability to take care of herself and her ability to eliminate body wastes. However, the court rejected Dilbeck’s claim that her depressive disorder substantially limited her ability to sleep or take care of herself because the severity and frequency of the depressive episodes were undocumented and the mechanism that could give rise to an inference of sleep disruption (other than getting up frequently to use the bathroom) was absent from the record. Furthermore, the court found that Dilbeck’s depressive episodes occurred irregularly and did not limit her life activities in a regular and continuous manner. The court appears to have applied different standards to IBS and depression requiring much more stringent causal connections to major life activities for the latter than the former.

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Although a final answer awaits litigation under the new provisions, the 2008 Amendments to the Americans with Disability Act seem to broaden the protection that the law offers to those who suffer from mental illness. As in the old statute, the new statute prohibits discrimination against individuals who suffer from a disability, which includes: (1) physical or mental impairment that substantially limits a major life activity, (2) record of such an impairment, or (3) being regarded as having such an impairment. However, the amendments offer broader definitions of both the “substantially limits” construct and the “being regarded” prong. First, in 42 U.S.C. Sec. 1201 (4)(D) (2008), the law now states, “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” While plaintiffs like Dilbeck have had a difficult time arguing that mental illness substantially limited a major life activity, the 2008 amendments seem to suggest that impairments that occur intermittently such as depression, bipolar disorder, or anxiety disorder are covered under the ADA if they would have debilitative effects on a major life activity when not in remission. Under this new definition, the ADA may consider mental illness disorders as a covered impairment, at least under some conditions. Psychological trial consultants may be able to help attorneys argue for and against the mental illness impairments in specific cases using data and trial process techniques. Furthermore, the 2008 amendments broaden ADA coverage of individuals who are regarded as having an impairment with new language, which states, “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity” (42 U.S.C. Sec. 1201 (3)(A,B) (2008)). However, the impairment may not be transitory and minor, and “A transitory impairment is an impairment with an actual or expected duration of 6 months or less.” Once again, the new language awaits tests in the courts. However, it would seem to suggest that if an employee like Dilbeck is regarded as having a mental disorder (e.g., depression) and that disorder is expected to be chronic and will last longer than 6 months, then the ADA prohibits discrimination against that employee regardless of whether the mental illness limits or is perceived to limit a major life activity. Following the 2008 amendments, attorneys who wish to proceed on ADA grounds of mental illness as an impairment might find help from a substantive trial consultant who could assist with proffering empirical evidence to show the connection between mental illness and disruptions of major life activities both in the general case and the specific case. We can only speculate on the outcome; however, one substantive role that trial consultants can play in ADA cases is to document the impact of impairments on major life activities for individuals who suffer from specific illnesses. After the 2008, the amendments’ cover episodic impairments that show remission periodically, as long as those impairments limit of one or more major life activities during the time in which the individuals suffering from them are symptomatic. On the contrary, defendants’ attorneys could seek trial consultants to investigate and report on the limitations of research that tries to tie impairments

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to limitations in life activities, whenever the work exists and the courts allow such research into the record. Finally, empirical work on this issue is probably the most likely to be successful in cases that intertwine physical and psychological illnesses such as in Dilbeck, where the plaintiff argued that there was a reciprocal relationship between the onset of her depressive episodes and IBS episodes, with each triggering the other. A line of argument that trial consultants could make with empirical data, but which was not put forth in this case, might proceed by showing that the interaction of the two illnesses (physical and psychiatric) increases the substantial limitation of major life activities. In other words, the co-occurrences of depressive episodes and IBS may have had the most substantial limiting effects on Dilbeck’s ability to take care of herself and obtain regular sleep. Data that speak to the interactive and facilitative influence of physical and mental illnesses could be a contribution of a psychological trial consultant. Furthermore, trial consultants could collect data to show that mental illnesses such as depression, bipolar disorder, or even anxiety disorder carry their own stigma in the workplace. More specifically, data that show that bosses and fellow workers regard individuals with mental illness as having a chronic impairment that is reoccurring, long lasting, and debilitating could be useful to attorneys who are bringing cases under the ADA. These data will be especially effective if consultants can show that stigma attached to mental illnesses produces discrimination in the form of denying job benefits such as hiring, promotions, or special training (e.g., like programs in Dilbeck v. Whirlpool) or if they show adverse actions such as layoffs, terminations, or demotions. As always, consultants working for the defense would try to show that the data are flawed or that they do not apply to the defendants in specific cases. The trial court in Dilbeck v. Whirlpool Corporation (2008) denied the defendant’s motion for summary judgment and held that Dilbeck was entitled to a trial to determine whether Whirlpool failed to offer her reasonable accommodations that were not an undue hardship in violation of ADA. It also went on to find that Dilbeck was entitled to a trial regarding Whirlpool’s disparate treatment of the plaintiff in denying her an extension for completing the 8,000 h of apprenticeship. As in all other discrimination cases discussed so far, trial consultants might assist attorneys in preparing for trials by testing case theories, presentation of materials, development of arguments, preparation of jurors, and the like. In summary, a list of issues that might submit to empirical investigations in ADA cases include the following: (1) What empirical evidence is there that specific disabilities tend to substantially impair major life activities? Which major life activities are or are not implicated? (2) What empirical evidence is available to document the qualifications for specific jobs and identify the essential functions of specific jobs? (3) Are there data that speak to the effectiveness of various reasonable and perhaps not so reasonable accommodations on job performance? (4) What constitutes undue hardship from both the perspective of the employer and the employees? (5) What evidence is there for stigma in the workplace that shows that people are regarded as impaired and that the bias results in discrimination? Each of these issues has relevance both for specific cases and for the ADA cases in general so that they are ripe for trial consultants

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to consider as topics of applied and, indeed, more basic research. Finally, what are reasonable and unreasonable accommodations? Are there studies that can demonstrate who can perform what types of jobs with and without accommodations?

Sexual Harassment The last category of allegations of discrimination that does not involve intent per se is sexual harassment. To invoke Title VII protection, a plaintiff must demonstrate that he or she is a member of a protected class (e.g., sex, race, ethnicity), that he or she was the recipient of unwelcome conduct, and that protected class feature (i.e., sex) was the cause of the unwelcome behavior (Meritor v. Vincent, 1986). If the outcome of the harassment involved a tangible condition of employment such as salary, promotion, or demotion, then the severity or pervasiveness of the conduct speaks for itself. However, if the outcome did not include a tangible condition of employment, then the plaintiff must show that the unwelcome conduct was sufficiently severe OR pervasive to create a hostile or abusive working environment both by a subjective and objective standard (Harris v. Forklift Systems, Inc., 1993), that is, both the plaintiff and a reasonable person in a situation similar to the one that the plaintiff occupied at the time of the alleged misconduct must show that the conduct was unwelcome and sufficiently severe or pervasive to constitute abuse. In deciding whether conduct meets the sufficiently severe or pervasive standard, the trier of fact should consider the frequency of the conduct, whether it involves physical threats or humiliation, whether it interferes with work performance, and whether it impacts the complainant’s psychological being in a negative manner. These issues are difficult to determine in cases that occur between members of different genders. (For example, the female secretary in Meritor did agree to sexual activity with her male boss because she feared for her job, so even though she consented to the sexual conduct, she maintained successfully that his conduct was unwelcome and sufficiently severe and pervasive to create a hostile work environment). However, in cases of same-sex harassment, the issues are even more difficult to assess. Initially, it was unclear whether to be actionable sexual misconduct at work needed to involve members of the opposite sex; however, in 1998 (Oncale v. Sundowner Offshore Services, 1998), the Supreme Court ruled definitively on that question. Mr. Oncale worked as a roustabout on a Chevron Oil platform in the Gulf of Mexico where his male coworkers subjected him to sex-related humiliating actions, physical assault, and even threatened him with rape. The District Court and the Fifth Circuit Court of Appeals said that because Oncale was a male and not a homosexual, he had no cause of action under Title VII against male coworkers who harassed him. The Supreme Court ruled in the other direction holding that “Nothing in Title VII necessarily bars a claim of discrimination ‘because of sex’ merely because the plaintiff and defendant ‘are of the same sex’” (p. 79). While the Court agreed that Title VII does not prohibit all verbal or physical harassment in the workplace but only that which is caused by the sex of the complainant, it went on

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to hold that harassing conduct need not be motivated by sexual desire to be actionably based upon sex. In Oncale, the Supreme Court provided three ways a man could successfully bring a case based upon actionable unwelcome misconduct because of his sex. He could show that the alleged harasser was acting out of sexual desire or out of a general hostility to men in the workplace that motivated the alleged harasser. Alternatively, he could show patterns of conduct in mixed gender workplaces that demonstrated that the harasser(s) singled out men but not women for this treatment. Substantive consultants in same sex hostile work environment cases could assist attorneys by collecting ongoing or simulated data to show whether the type of complaints made in a specific case are likely the result of general hostility directed toward a complainant because of her or his sex. Alternatively, the complaints might be the result of other characteristics that supervisors or coworkers find offensive and research could show that outcome as well. Experimental tests designed to disentangle sex and other attributes of the alleged victim could be useful in these types of cases. An affirmative defense that is available for sexual harassment cases could significantly influence the work of trial consultants. In Burlington Industries, Inc. v. Ellerth (1998), the plaintiff, Ellerth, was a salesperson in one of Burlington’s divisions in Chicago. Manager Slowik had authority to make hiring and promotion decision with his supervisor’s consent, but he was not Ellerth’s immediate boss. Slowik invited Ellerth to a hotel lounge on a business trip and caressed her knee as he told her, “You know, Kim, I could make your life very hard or very easy at Burlington.” He also made comments about her breasts and commented to her after she received a promotion “…they certainly like women with pretty butts/legs.” Finally, Slowik offered some advice to Ellerth, noting, “Are you wearing shorter skirts… it would certainly make your job easier…” When Ellerth’s complaint reached the District Court, the court dismissed the case, noting that although the conduct was severe and pervasive enough to create a hostile work environment, Burlington neither knew nor should have known about the conduct. Furthermore, because no supervisor ever carried out the threats, this was not a quid pro quo case so that the employer was not vicariously liable for Skowik’s actions. The Supreme Court overturned the district court and used the opportunity to clarify conditions of liability for quid pro quo and hostile work environment harassment. Following Burlington Industries, an employer is subject to vicarious liability to a victimized employee for a hostile work environment created by a supervisor with immediate (successively higher) authority over the employee. When the alleged harasser takes a tangible action (trades a tangible reward for sexual favors), there is no affirmative defense because this is a quid pro quo action. An agent of the organization with supervisory authority engages in misconduct and the company that the alleged harasser represents is aware of the misconduct by virtue of the fact the supervisor acts with company authority. However, if the alleged harasser took no tangible action, an employer may raise an affirmative defense (proven by a preponderance of the evidence) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. If the plaintiff employee unreasonably failed to take advantage of any preventative or corrective

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opportunity that the employer provided to avoid harm, then the employer is not liable for the alleged harasser’s misconduct. Finally, the defense against coworker harassment is the same defense against regular negligence, namely, a failure of proof defense. The defendant must show that it was unaware of the conduct and had no reason to suspect it to avoid liability for harassing behavior. Following Burlington Industries, a substantive psychological consultant could offer assistance to either plaintiffs or defendants. In cases that involve a supervisor engaged in hostile work environment harassment, a substantive consultant could assist either side (but especially the defense) by analyzing the existing preventative policy showing whether it offered a legitimate recourse, how public it was, and how available was the corrective opportunity. Empirical evidence showing that other workers were aware (or unaware) of the preventative opportunities and how easy (difficult) it was to use the policy could make a significant contribution to cases that involve a supervisor who engages in hostile work environment allegations. Furthermore, in cases that involve coworker harassment allegations, survey data documenting other workers’ awareness of the actions could benefit either side of the case depending upon the case facts and the outcome of the survey. Substantive trial consultants could contribute important evidence to cases that involve same-sex harassment where the case may turn on the issue of whether the misconduct resulted from negative attitudes toward homosexuals (not a valid cause of action under Title VII) or negative stereotypes toward effeminate men at work (actionable under Title VII). Consider the recent case of Vickers v. Fairfield Medical Center (2006) in which complainant Christopher Vickers worked as a private police officer at the medical center along with other men occupying similar status positions and under a male supervisor. Vickers befriended a male homosexual doctor at the medical center and assisted him in investigating allegations of harassment that the doctor allegedly suffered. When Vickers’ colleagues found out about his association with the doctor, they began making sexual slurs and comments degrading him, calling him gay, and questioning his masculinity. Vickers complained about daily comments calling him gay and other comments suggesting that he offered his colleagues and supervisor sexual favors. One of the allegations of misconduct occurred when Vickers and one of his coworkers were involved in handcuff training. The other male coworker handcuffed Vickers, simulated sex with him, and photographed the incident. Eventually, the picture wound up displayed in one of the windows at the medical center. Ultimately, Vickers resigned from his position at the medical center and filed a discrimination suit that made its way to district court. The district court dismissed the case, ruling that Vickers was not the victim of unwelcome sexual misconduct because of his sex; instead, he was harassed because of his perceived sexual orientation and Title VII does not prohibit discrimination because of sexual orientation. Vickers argued to the trial court and upon appeal to the federal circuit court in Eastern Michigan that his fellow workers discriminated against him because his conduct was effeminate and that they found it more consistent with that of a woman than that of a man. However, the trial court dismissed the case in summary judgment, holding that Vickers’ claim was not an example of the sex stereotyping theory of liability that the Supreme Court endorsed in Price Waterhouse v. Hopkins (1989).

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The court found that Vickers could not claim that he was the victim of gender policing because he violated sex-role stereotypes; instead, he was the victim of discrimination because of his perceived status as a gay male. Title VII does not prohibit discrimination against homosexuals; they are not a protected class under the law. In order to avoid extending the protections of Title VII to homosexuals without legislative authority, the courts would have required Vickers to show that the harassers were motivated by sexual desire, general hostility toward men in the workplace, or were motivated to harass men but not women in similar circumstances. Because Vickers satisfied none of these factors, the appellate court affirmed the lower court’s summary judgment. It is interesting to note that Vickers never divulged at work or during his motions, whether he was or was not a homosexual. The lesson for trial consultants is that in cases of same-sex harassment that do not involve unrequited romantic attraction, there is a need for the plaintiff to show that the complained after conduct is not a reaction to the homosexual status of the complainant (perceived or real) and instead comes from a negative reaction to effeminate men, that is, the harassing conduct that men levy against other men at work comes from a dislike for men who violate sex-role stereotypes (i.e., that is that they are not masculine enough) and is not a result of antagonism toward homosexuals per se. Survey data collected in the workplace and simulated research data could address this empirical question. Furthermore, experimental data that showed that male harassers would not engage in similar behavior toward women in a mixed environment would help show that the conduct was the result of sex and not sexual orientation. Of course, defendant attorneys and trial consultants aligned with them would do well to attack the credibility of a consultant’s analysis showing that the conduct was based on sex and not sexual orientation. In addition to this narrow issue, substantive consultants may also contribute more generally to sexual harassment cases by using the existing empirical research to help answer the questions about what constitutes unwelcome behavior, especially when an alleged victim does not complain in a timely manner. Other issues of importance include analyses about what constitutes severe or pervasive misconduct from perspectives of both male and female complainants, how should the courts and how do juries take context into perspective, and is there a difference between taking the reasonable person or reasonable victim’s point of view. Furthermore, as is the case in the other areas of discrimination, both sides can make use of psychological trial consultants to frame arguments in ways that consider the reasonableness standard and take advantage of types of unwelcome conduct, the frequency of the conduct, the presence or absence of humiliation, the lack of physical contact, and so on.

Damages Analyses of damages in discrimination cases is a timely topic (see Ledbetter v. Goodyear, 2007), which established limits for back pay in employment discrimination cases and the Lilly Ledbetter Act that Congress passed in 2009 which overruled Ledbetter v. Goodyear allowing a 2-year window for accrued damages in disparate

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treatment cases), but a full explication of available damages is beyond the scope of this chapter (see Chap. 13 by Bornstein and Greene). However, a few comments about the general availability of damages and the important role that a psychological trial consultant could play in assessing these damages are in order. Until the revision of the Civil Rights Act in 1991, Section 706G of Title VII identified available remedies as injunctive relief, ordering affirmative action such as reinstatement, rehiring, and back pay or other equitable relief. With the passage of that Act, Sec. 1981a; 42 US code, statute provides that if an employer intentionally engages in unlawful discrimination, the plaintiff can recover monetary damages, 42 US Sec. 1981. This also applies to the ADA and ADEA. Punitive damages are available under Sec. B if the employer discriminates with malice or reckless action. Furthermore, because compensatory damages do not include back pay, caps on compensatory damages do not limit the amount of back pay that the plaintiff may recover. Section b(3) lists compensatory damages to include loss of future pecuniary gain, loss of consortium, and emotional suffering. These rules apply to disparate treatment, sexual harassment, and ADA cases, but not to disparate impact cases. Following the Civil Rights Act amendments in 1991, plaintiffs in many discrimination cases stand to win a great deal of monetary remediation and defendants could lose a great deal. As a result, there is increased emphasis on settlement and alternative dispute resolution techniques. Although experts (economists, labor specialists, physicians, and psychologists) often assist attorneys in evaluating loss and damages suffered in discrimination cases, we know of no trial consultant efforts at conducting empirical research to estimate damages in cases to assist in settlement (see Bornstein and Greene, Chap. 13). Psychological trial consultants could construct survey studies to administer to a pool of perspective jurors that present the elements of liability and measure distributions of financial outcomes resulting from different arguments and varied fact patterns. Data collected to estimate the value of discrimination cases could be of great assistance to both plaintiff and defendant counsel in discussing settlements to achieve the strongest possible position in negotiations. It is always preferable to negotiate from a position of strength, which comes from an accurate knowledge of the value of a case. Therefore, empirical estimates of potential jurors’ awards could assist both sides in reaching a settlement agreement. These studies are well within the expertise of psychological trial consultants, and those consultants could efficiently and quickly conduct that research using Web-based technology to come up with empirical estimates of how much a jury is likely to value a case.

Conclusion: Diversity of Efforts and Ethical Considerations We briefly outline some of the major contributions that trial consultants can make both to the substantive issues and to trial process in a variety of discrimination models. The area is rich, and the opportunities are varied. There are many points of entry and a diverse set of opportunities for trial consultants and attorneys to join forces in creative ways to argue their client’s cases. Our review only touches on the

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most basic opportunities. While we try to distinguish between efforts that are substantive in their contributions, that is, those that may include expert witnesses, compared to those in which social scientists act as more traditional trial consultants, we recognize that this distinction is difficult to make and points in this chapter may appear somewhat arbitrary. The important points that we identify here are not really about this distinction. Instead, our purpose was to highlight some of the important contributions to resolving discrimination disputes that psychologically based trial consultants can provide. If nothing else, we hope that we have identified areas of interest that would be fertile for additional collaboration between trial consultants and attorneys representing both plaintiffs and defendants in these types of cases. The only limitation to the successful collaboration in areas of discrimination law is the creativity of consultants and attorneys. On a final concluding note, it is worthwhile pointing out that a great deal of the consulting efforts that we discuss involve research and collecting data both specific to particular case facts and more generally about classes of discrimination theories. Psychological researchers acting as consultants and the attorneys that they may work for should be aware that the ethics of trial consulting are complicated in these types of cases (on ethics in consulting generally, see Chap. 16 by Stolle and Studebaker). First, the trial consultants must be aware of their own ethical guidelines, especially as they relate to psychological research. If they are affiliated with a research institution (e.g., university), they need to consider whether there is a need for the involvement of Institutional Review Boards (IRBs) in conducting the work, and if so how that might influence the design and outcome of the research and consulting experience. With or without the involvement of IRBs, psychological consultants need to consider whether they have an obligation to make research results known even if they do not favor their client’s case. Is this an ethical responsibility for work that one will not disseminate on a broad scale? If so, then how will negative results be reconciled with any of the financial agreements made with attorneys contracting for the research? At the same time, attorneys hiring psychological consultants should be aware of the ethical responsibilities of research psychologists and other consultants. Anticipating conflicts of interest ahead of time will help teams of attorneys and consultants avoid problems of data ownership and collection in discrimination cases, which could produce sensitive and interesting results. Consideration of ownership and dissemination should occur at the beginning of any consulting arrangement. We believe that some preliminary attention paid to these concerns will go a long way toward avoiding ethical dilemmas that could arise from consultant and attorney relationships, opening the door for healthy collaboration between social scientists and lawyers to the benefit of both and their clients in discrimination cases. In the end, the final advice that consultants and attorneys should use to guide their collaboration is the creativity that each brings to the task. As long as both types of professionals take care to consider the ethical implications of their work ahead of time, we are certain that there is a rich opportunity for collaboration in this interesting area that intersects both psychology and law. We hope that our comments will help those who are interested in pursing this area of collaboration to do so successfully.

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Wiener, R.L., Winter, R., Rogers, M., & Arnot, L. (2004). The effects of prior workplace behavior on subsequent sexual harassment judgments. Law and Human Behavior, 28, 47–67. Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006). Yoon, S., & Vargas, P.T. (2005). When “what might have been” leads to what isn’t best: Dysfunctional counterfactual thinking in consumer affect and cognition. In F.R. Kardes, P.M. Herr, & J. Nantel (Eds.), Applying social cognition to consumer-focused strategy (pp. 331–352). Mahwah: Lawrence Erlbaum Associates Publishers. Zeelenberg, M., van Dijk, W.W., van der Pligt, J., Manstead, A.S.R., van Empelen, P., & Reinderman, D. (1998). Emotional reactions to the outcomes of decisions: The role of counterfactual thought in the experience of regret and disappointment. Organizational Behavior and Human Decision Processes, 75, 117–141.

Chapter 13

Consulting on Damage Awards Brian H. Bornstein and Edie Greene

Cases that come to trial in the civil litigation arena typically involve two broad ­decisions by jury or judge: liability or fault, and compensation for injury or loss (there may be punitive damages as well, but these are rare, occurring in only 5% or so of civil trials with winning plaintiffs; see, e.g., Langston & Cohen, 2008; Eisenberg, Goerdt, Ostrom, Rottman, & Wells, 1997). Our focus here is on jurors’ and juries’ assessments of damages to compensate injured parties for their losses, and the role that the trial consultant can play in shaping those decisions. Consider the case of Paul Pollard v. Pleasant Villa Corporation that came before a Colorado jury in 1993 and for which one of us acted as trial consultant. Liability in this case was straightforward: Pollard, a black man in his 30s who was working in engineering, had come to the apartment of an acquaintance to settle a financial matter. A dispute ensued and became more heated, and eventually the acquaintance doused Pollard with a powerful drain cleaner that he had borrowed from his landlord (who was employed by the defendant, Pleasant Villa Corporation). Pollard was horribly burned, lost an ear, became blind in one eye, and was left severely disfigured as nearly half of his face melted away in a moment. Given the evidence on causation and negligence, liability was never an issue. However, assigning a monetary value to these profound injuries was anything but straightforward. Many questions arose: How would a jury evaluate the pain and suffering that Pollard endured? What future could they envision for a horribly deformed person? Would they appreciate the emotional toll that the plaintiff claimed his disfigurement imposed or would they reject his claims as greedy and self-serving? Would they be horrified by his appearance and rebuke his request for compensation, or would they be overly sympathetic and excessively generous? This case was ripe for the involvement of a trial consultant as these large questions, and a potentially very large damage award, loomed. Trial consultants can assist civil litigants on three main damages related tasks. All are relevant to the needs of both plaintiffs and defendants alike. First, they can help to estimate the value of a plaintiff’s injury. Valuing the injury ordinarily employs the B.H. Bornstein (*) Department of Psychology, University of Nebraska/Lincoln, 335 Burnett Hall, Lincoln, NE 68588, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_13, © Springer Science+Business Media, LLC 2011

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techniques of surveys and focus groups (see Chap. 5 by Wingrove, Korpas, & Belli). Second, consultants can help retain and prepare experts and lay witnesses for trial. In requesting damages, plaintiffs must document the nature and extent of their injuries. In cases with significant losses and injury, both sides typically call experts to support their own view of the injury’s severity and how much it is worth (in cases involving less severe injuries, experts may not testify or may testify only on behalf of the plaintiff). Consultants can locate and work with these relevant experts, especially if they do not have much testifying experience. Consultants hired by plaintiffs can also prepare for trial those plaintiffs and other witnesses who will corroborate the plaintiffs’ testimony. Finally, consultants can work with and advise attorneys on making effective arguments with respect to damages. Jurors receive little guidance on awarding damages by way of judicial instructions (Greene & Bornstein, 2000, 2003), and corroborating evidence, especially for noneconomic damages, is likely to be sparse (e.g., a plaintiff might request $1 million for pain and suffering, but offer little, if any, evidence to support that amount). Thus, damages are an element of trial where attorney argument is likely to be especially influential (Plotkin, 2004; Spiecker & Worthington, 2003). We describe each of these tasks for the consultant in turn.

Task 1: Valuing the Injury Valuing the plaintiff’s injury is essential because it provides an estimate of the “market value” of a particular injury in a given locale. Injuries naturally vary along a continuum of severity (e.g., Bovbjerg, Sloan, & Blumstein, 1989; Bovbjerg, Sloan, Dor, & Hsieh, 1991), but there is considerable variability within a certain injury type. This means that plaintiffs whose injuries are of roughly the same magnitude and who sustained them in a similar manner may receive vastly different sums of money in compensation, so-called horizontal inequity (Saks, Hollinger, Wissler, Evans, & Hart, 1997). In order to make compensation more equitable, some commentators have proposed using schedules and/or providing jurors with examples of typical awards (e.g., Bovbjerg et  al., 1989; Saks et  al., 1997). Such schedules are used somewhat effectively in circumscribed types of cases, such as those involving workers’ compensation and specific disabilities. For a number of reasons, wider application of compensation schedules is difficult, however. First, schedules pertain mostly to physical injuries. For example, loss of a hand is worth $X, and loss of a foot is worth $Y. But a substantial portion – roughly half – of all compensation awarded in civil cases is for noneconomic or general damages, such as pain and suffering (Vidmar, Gross, & Rose, 1998). Emotional injuries are, by their very nature, intangible, making them difficult, if not impossible, to scale. Second, the same injury can affect different plaintiffs differently. For example, a machinist might be able to withstand the loss (real or functional) of the little finger on the nondominant hand with relatively few effects, but a concert pianist could not. In this case, the identical injury would likely produce very different economic as well as noneconomic consequences. Third, each injury or case is relatively unique.

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Paralysis can be total or partial. Degrees of partial paralysis do not fit easily into discrete categories. Some paraplegics and amputees have considerable pain in the affected limbs, but others do not. These subtle and not-so subtle variations make any sort of one-size-fits-all approach, no matter how well intentioned and how many categories it allows, a good deal cruder than the reality it seeks to reflect. Finally, the appropriate damages in many cases are virtually impossible to estimate without data. Consider the case, about which one of us was contacted several years ago, of babies switched at birth. The plaintiff, one of the “babies,” discovered the error when she was in her 20s. The hospital did not dispute the error, which DNA testing confirmed; so the sole dispute was over the amount of damages. The facts of the case indicated that the plaintiff had not had a loving relationship with the parents who raised her. After they realized they were not her birth parents, they became still further estranged; moreover, the woman’s real birth parents were not interested in establishing a relationship with her either (the other woman, on the other hand, received the attentions of both sets of parents). What damages are called for in this case? Perhaps as a result of the defendant’s negligence, the plaintiff had a difficult childhood in a cool and distant family. If it can be documented that a childhood spent with her birth parents would have been better in some ways, then she was injured “but for” the defendant’s negligence and deserves compensation.1 For example, if the birth parents were significantly better off financially, she could claim that she would have had better access to educational and career opportunities. Thus, there might be provable economic loss, though it is difficult to quantify the difference in lifetime earnings by someone whose parents both had college degrees and lived in an affluent neighborhood and another person whose parents lived in more humble circumstances. The bulk of any damages to be awarded in this case would appear to be noneconomic. For the rest of her life, this woman will have the painful knowledge that the hospital’s mistake deprived her of a “normal” childhood with her biological family. This injury is compounded by the fact that she is now unwanted by not one, but two sets of parents. How much is a “normal” sense of family worth? Many people (including, probably, the advertising agency hired by MasterCard) would say it is priceless. Nevertheless, there are no benchmarks for quantifying this sort of emotional distress, which is as hard to characterize as it is to quantify. The only thing that seems certain is that the plaintiff is entitled to substantial compensation; but whether that means $500,000 or $50 million is impossible to say. The benefits of valuation are many. Knowing how much the plaintiff can realistically seek to recover at trial aids the plaintiff in evaluating, and the defendant in making, settlement offers. Pretrial valuation can also help litigants learn which aspects of the injury (e.g., pain, disability, etc.) elicit the greatest sympathy. This knowledge then suggests which evidence should be highlighted (by the plaintiff) or minimized (by the defendant) at trial.  Interestingly, if the defendant can show that her birth parents would have been just as unloving as her rearing parents, then there would be no “but-for” causation with respect to her past injuries. Her future injuries would still be difficult to contest.

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One might suspect that an important application of injury valuation takes place during jury selection (see Chap. 2 by Crocker and Kovera). Indeed, if the process could identify which types of jurors tended to award more or less compensation, attorneys could use that information to make peremptory challenges during voir dire. Considerable mock jury research has explored the relationship between juror characteristics and damage awards. Characteristics that have been explored – and that are often discernible from pretrial questionnaires – are demographic variables and attitudes. Generally, what this research shows is that the former are not good predictors of juror damage awards, but the latter – especially specific attitudes related to civil litigation – can be useful in predicting jurors’ awards (Vinson, Costanzo, & Berger, 2008). With respect to demographic variables, there appears to be little or no relationship between juror characteristics and the size of their awards in tort cases. This finding, similar to what we know about the role of demographic factors in decisions in criminal cases, has come from a variety of studies involving different methodologies: a highly realistic trial simulation (Diamond, Saks, & Landsman, 1998), a factorial survey of jury-eligible adults in two states (Wissler, Hart, & Saks, 1999), and archival analyses of large numbers of cases (Eisenberg & Wells, 2002; Rose & Vidmar, 2002). Although significant folklore has built up around the notions that minorities give larger awards, that people who are sued in Alabama or in the Bronx run an increased risk of suffering staggering losses (Hayes, 1992), and that poor people are especially likely to favor plaintiffs and disfavor corporate defendants, the data suggest that these assumptions are almost entirely groundless (Eisenberg & Wells, 2002; Rose & Vidmar, 2002; Saks, 2002). Slight geographic variation in awards may actually be a result of cultural and regional differences in filing and settlement practices, rather than a consequence of jurors’ demographic factors. For example, attorneys in different parts of the country may have different standards that dictate whether to take a case to trial or to settle it, so any geographic differences may simply reflect the fact that juries in different locales are deciding different cases, rather than deciding cases differently (Rose & Vidmar, 2002). In our experience, many attorneys assume and expect that certain groups of jurors – as defined by obviously discernible characteristics like age and race – will respond to the evidence in predictable ways. With limited time for voir dire questioning and limited experience in asking jurors about other, less distinguishable characteristics, they tend to rely on their intuitions and assumptions about the importance of demographic features when making choices about peremptory challenges. Thus, an important role for the trial consultant is to alert attorneys to the fallacy of “the Bronx jury” and the excessively generous Alabama jury, and, more generally, to inform them of the general lack of a relationship between obvious demographic features of prospective jurors and their likely damage awards. If demographic features are not useful predictors of jurors’ sentiments about damages, are there other factors that might yield better predictions about jurors’ preferences? Some attitudes, such as authoritarianism, are good predictors of verdicts in criminal cases (Dillehay, 1999), but these sorts of broad personality variables apparently matter little in civil cases. Rather, the best attitudinal predictors of

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damage awards are attitudes toward civil litigation – including tort reform – and attitudes toward corporations. Greene, Goodman, & Loftus (1991) evaluated the relationship between jurors’ attitudes toward tort reform and their decisions in a mock personal injury lawsuit. They found a negative correlation between jurors’ sentiments about the existence of a litigation crisis and the need for tort reform, on one hand, and the award they assessed as mock jurors in a wrongful death case, on the other hand. The more jurors perceived a crisis or favored tort reform measures, the lower their awards. Valerie Hans and her colleagues (e.g., Hans, 2000; Hans & Lofquist, 1992) have also demonstrated that jurors with positive attitudes toward business, protort reform attitudes, and a belief in the existence of a litigation crisis tend to award less than jurors with opposing viewpoints. For example, Hans and Lofquist (1994) interviewed 269 jurors’ who had served on 36 juries and asked them questions about the legitimacy of suing, the size of damage awards, and the apparent “litigation crisis.” They also asked a subset of these jurors questions about their attitudes toward business and corporate responsibility. Somewhat surprisingly, jurors were more favorably inclined toward corporate defendants than toward individual plaintiffs (though this research took place before widely publicized corporate scandals, such as those involving Enron and WorldCom). To examine the role that these beliefs might play in the jury deliberation room, Hans and Lofquist computed the mean attitudinal score for each jury separately and then correlated these mean attitudes with the jury’s award. They found that litigation crisis attitudes were negatively correlated with the verdicts rendered by jurors in the cases they heard: The more strongly jurors collectively perceived a litigation crisis and need for tort reform, the lower the jury award. Finally, Vinson et al. (2008) exposed 446 mock jurors to realistic case presentations in insurance, tobacco, and pharmaceutical cases set for trial. In both the tobacco and pharmaceutical cases, the size of jurors’ punitive damage award was predicted by jurors’ perceptions about the existence of a litigation crisis. Given these findings, a trial consultant can assist lawyers in drafting voir dire questions that would reveal something about jurors’ sentiments toward tort reform and help the attorney to advocate for use of these questions, either in open court or on a written jury questionnaire. Overall, though, demographic and attitudinal variables still explain only a relatively small proportion of the variance in jury awards, and it may be hard to identify general patterns of compensation as a function of juror characteristics or attitudes. Furthermore, as in the Vinson et al. study, these characteristics and beliefs might predict awards in some cases but not others, suggesting that it is essential to test for such relationships using the particular case facts at issue. The trial consultant has an obvious role to play in this realm. The most effective methods for injury valuation are surveys and focus groups (for a more detailed treatment of survey techniques, see Chap. 5 by Wingrove et al. Typically, surveys are administered to a diverse cross-section of jury-eligible citizens within the jurisdiction where the trial will be held (or in multiple jurisdictions, where the task is to select the most favorable jurisdiction). The materials contain a synopsis of the case, relevant legal information (e.g., definition of legal

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terms such as negligence, strict liability, and preponderance of the evidence), and demographic and attitudinal measures. Mean awards from a large sample provide a reference point for evaluating and making settlement offers, as well as for selecting an ad damnum (the amount of money that is requested at trial), if one is used. Focus groups are necessarily smaller, but allow one to present a more realistic, detailed version of the case, perhaps with videotapes or even live actors. Since focus group members engage in discussion, observers can determine how injuryand damages-related information would play out during jury deliberation. Despite the size limitations, it is important to obtain a sample as representative of the venire as possible, though one needs to be cautious in drawing inferences based on the very small samples involved. For example, if a focus group contains two AfricanAmericans, and they both advocated for relatively large awards, one would not want to conclude that “African-Americans favor larger awards” and make an effort to select or eliminate from the jury all African-Americans.2 The data provided by focus groups are more qualitative, whereas survey data are more quantitative. Each has its advantages and limitations, and the decision of which to use must be based on the demands and features of the case at hand. One way to have the “best of both worlds,” of course, is to use multiple focus groups.

Task 2: Expert and Lay Witness Guidance The task of awarding damages, especially in the realm of intangible, noneconomic losses, is daunting indeed. Typically, there are few benchmarks to guide these arbitrary decisions and jurors receive “precious little guidance” from the judge to assist them in determining damage awards (Greene & Bornstein, 2000; Kalven, 1964). Since they lack confidence in their own ability to assess quantities for pain and suffering and emotional distress, in particular, jurors must often rely on expert witnesses called by the plaintiff to apprise them of the extent and nature of the plaintiff’s injuries, the types of activities that have been affected by those injuries, and the likely long-term prognosis for the plaintiff. Of course, defendants’ experts can dispute these claims. Trial consultants can assist both in locating and preparing experts for trial; the latter task is an especially important component of an effective trial strategy because to be effective, expert witnesses must appear to be objective, clear, unbiased, and able to communicate with jurors in a direct and honest way (Plotkin, 2004). Many experts, though well-credentialed and highly competent in their respective fields, could have minimal experience in the courtroom or little sensitivity to the abilities and concerns of average laypeople. Without the assistance of a trial consultant to fine-tune their presentations, jurors could perceive the testimony of expert witnesses as overly complex, hostile, or condescending (see Chap. 8 by Cambron).

 Eliminating prospective jurors solely on the basis of race is unconstitutional (Batson v. U.S, 1986), but this prohibition is largely unenforceable (Brown, 2003).

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A variety of experts can be called to testify about the amount of damages warranted in a particular case. With respect to economic damages, actuaries, accountants, or economists can provide evidence on a plaintiff’s life expectancy, retirement age, probable job-related raises and promotions, likely expenditures, etc. They can also explain the real value of a given award over time by detailing the impact of various presumed interest and inflation rates. These sorts of economic assumptions can have a profound impact on the size and real value of an award. For example, suppose that a plaintiff is seeking to recover damages for her husband’s negligently caused death at age 45, when he was earning $50,000/year. Assuming an annual raise of 3% and retirement at age 63 would yield lost income of $1,205,844 (before taxes); but assuming an annual raise of 7% would yield lost income of $1,818,953, a difference of $613,109. Assuming a retirement age of 68, in addition to a 7% annual raise, would yield a difference of $1,652,999. Obviously, it behooves the plaintiff to engage an expert who uses fairly liberal projections, and it behooves the defendant to have an expert who uses fairly conservative projections. Some data suggest that expert testimony from an economist can assist jurors in assigning monetary awards for economic damages and that jurors do rely on this expert advice (Raitz, Greene, Goodman, & Loftus, 1990). Much testimony in a lawsuit for damages obviously involves characterizing the damage, or injury, itself. Typically, the plaintiff seeks to highlight the severity of the injury and its consequences, whereas the defendant seeks to minimize the same. In addition to the expert testimony on economic damages described above, a variety of experts can provide evidence on physical and psychological aspects of the injury. For example, physicians, mental health practitioners, and physical, occupational, and rehabilitation therapists who evaluate or work with an injured plaintiff might be called upon to testify. Their testimony can provide benchmarks or hard evidence that jurors can use in their subjective assessments of compensation. Expert testimony on noneconomic damages is less common, but our impression is that it is increasingly prevalent. In fact, in cases where emotional distress is the primary cause of action, it is quite common for experts to be involved (Perrin & Sales, 1993), although they rarely are able to provide or support a precise figure for nonpecuniary damages. Still, these experts can be helpful in justifying (or challenging) the need for noneconomic damages (Goodman-Delahunty & Foote, 1995). Many plaintiffs (and even some attorneys) have little basis on which to compare their experiences to those of others, whereas experts have a much larger knowledge base that allows them to make comparative judgments and give more nuanced assessments of the impact of the injury. In addition, some plaintiffs downplay the extent of their psychological injuries in order not to appear emotionally fragile and vulnerable, whereas other plaintiffs unfairly portray themselves as ruined by their injuries (see Chap. 14 by Gouvier, Stewart, and Brennan). A relatively objective assessment by an expert (even one hired by that side) can aid the jury in understanding the real extent of the loss. Experts who perform this function are typically mental health professionals, such as clinical psychologists or psychiatrists (see Chap. 14 by Gouvier et al.). Some states now allow into evidence testimony related to “hedonic” damages that detail the plaintiff’s loss of enjoyment of life (Schwartz & Silverman, 2004). A few states allow expert witnesses, typically psychologists or economists, to apply ­formulas

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derived from governmental studies, models of consumer behavior, or research on worker risk avoidance in calculating a monetary award for hedonic damages. Some commentators (e.g., Schwartz & Silverman, 2004) contend that it is problematic to count hedonic losses as separate from pain and suffering and that doing so poses the risk of duplicative damage awards. There is some empirical support for this idea (Poser, Bornstein, & McGorty, 2003). But our point is this: Where expert testimony on hedonic damages is allowed, consultants can be effective in assisting these experts either to paint a clear and compelling portrayal of the plaintiff’s loss of enjoyment of life, or to prepare counterexperts to challenge these assertions, as appropriate. Of course, the most influential witnesses are usually not the experts but the plaintiff and his or her family members who can provide details about the plaintiff’s daily life, activities that have been limited or curtailed by the injury, areas of functioning that are still intact, and the plaintiff’s psychological reactions to being injured. Jurors often come to a trial with cynical beliefs about plaintiffs’ motives for suing and seeking compensation, so they scrutinize these witnesses with great care, watching their movements and reactions both on and off the witness stand. (One of us worked as a trial consultant in a case where jurors observed and commented on the fact that the plaintiff – a middle-aged woman who complained of persistent back pain that impaired her mobility and that resulted from an automobile accident for which she was seeking recompense – changed the color of her toenail polish twice over the course of a week-long trial). An important task for a consultant hired by the plaintiff is to engage in typical witness preparation activities with these witnesses. Consultants can assist the plaintiff and his or her witnesses to become aware of their emotional and physical demeanor and the likely impact that their presentation may have on jurors. A related task for the consultant is to assist with or advise about demonstrative evidence used at trial, such as “day-in-the-life” videos illustrating the effects of a plaintiff’s injury on daily living, or graphic reenactments of the plaintiff’s injuries. Although such evidence raises concerns about prejudice, it is increasingly allowed (Bornstein & Nemeth, 1999; Colon ex rel. Molina v. Bic USA, Inc., 2001; Nemeth, Chap. 10), and Kassin and Dunn (1997) suggest that visual evidence of this sort can have a greater impact on jurors than oral testimony. Trial consultants who specialize in visual design and representation are especially well suited to produce these kinds of technical displays, and courtrooms are increasingly able to incorporate such technology in trials (Feigenson & Dunn, 2003).

Task 3: Maximizing the Impact of Attorney Argument The third main way in which trial consultants can assist in the damages phase of trial, as in other phases of a trial, is with attorneys’ questioning of witnesses and argument. Where damages are concerned, the relevant components of the task for attorneys are in setting an appropriate amount, justifying that amount through witness testimony, and presenting evidence and argument in a compelling and credible manner.

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Plaintiffs do not always request a specific amount in damages (often referred to as an ad damnum), but when they do, a major decision is how much to request. A consultant can assist in this decision. As discussed above, economic damages can be quantified to some degree (though, as noted, the amount will vary depending on the assumptions one uses), but the amount of noneconomic damages is largely arbitrary. How can one determine whether a plaintiff’s pain and suffering merits $1 million or $5 million in compensation? This is an area where the valuation research undertaken by a consultant (and described in the chapter’s first section) can be especially ­helpful, as it gives litigants an idea of how much a particular injury is worth. Suppose, for example, that a large-scale survey based on particular case facts showed that participants awarded a hypothetical plaintiff – with injuries identical to those of the real plaintiff – an average award of $500,000, with a range of $50,000– $5 million and a standard deviation of $200,000. The standard deviation means that 68% of the awards fell within the range of $300,000–$700,000 (± one standard deviation), and 95% fell within $100,000 and $900,000 (± two standard deviations). Based on these figures, how much should each side argue for at trial? Most research on the effects of the ad damnum supports the adage that “the more you ask for, the more you’ll get” (Chapman & Bornstein, 1996). This pattern makes sense in the light of cognitive psychological research on the “anchoring and adjustment” heuristic (Tversky & Kahneman, 1974), according to which people’s quantitative judgments are influenced by a numerical starting value, even if that value is an arbitrary one. A number of researchers have documented the anchoring influence of the ad damnum on jurors’ damage awards (Broeder, 1959; Chapman & Bornstein, 1996; Diamond, Ellis, Saks, & Landsman, 2000; Greene, Downey, & GoodmanDelahunty, 1999; Hastie, Schkade, & Payne, 1999; Hinsz & Indahl, 1995; Malouff & Schutte, 1989; Marti & Wissler, 2000; Raitz et al., 1990). For example, Chapman and Bornstein presented mock jurors with trial testimony describing a plaintiff who claimed that her birth control pills caused ovarian cancer. Given identical case facts, the plaintiff requested $100, $20,000, $5 million, or $1 billion in damages. Not only did she receive more compensation when she asked for more (see Fig.  13.1), but participants evaluated the evidence in the case more favorably toward the plaintiff as the ad damnum increased. The other studies cited above found comparable results (with the exception of the study by Marti & Wissler, 2000, described below).

Fig. 13.1  Anchoring results: mean compensation as function of the ad damnum

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One of the more striking results of the Chapman and Bornstein (1996) study is that the anchoring effect persisted even with the extreme ad damnum of $1 billion. Is there no limit to how much plaintiffs should ask for? Or at some point do they appear too greedy, where a very large ad damnum might work against them? Chapman and Bornstein found that a plaintiff who asked for more money was perceived as relatively more selfish and less generous; still, these perceptions were not correlated with damage awards. Another study suggests, however, that given different case facts and ad damnum levels, a “boomerang” effect might occur. Marti and Wissler (2000) presented mock jurors with evidence from a personal injury lawsuit in which the plaintiff, a longshoreman, was allegedly injured by the negligent actions of the defendant shipping company. In different versions of the study, he requested $1.5 million, $15 million, or $25 million in damages. Although he received the least amount of money in the $1.5 million condition, the mean award was greater in the $15 million condition than in the $25 million condition, suggesting that the very large ad damnum request worked against him (see Fig. 13.1). Marti and Wissler suggest that the reason they obtained a boomerang effect and Chapman and Bornstein did not is that the latter study used mid-level and extreme anchors that were quite far apart ($5 million vs. $1 billion). Given a greater number of intermediate values, they might have detected a boomerang effect as well. Marti and Wissler conclude that, although it may indeed be generally true that “the more you ask for, the more you get,” you also need to “be careful what you ask for.” In our experience, plaintiffs’ attorneys typically are not privy to the details of these empirical studies or to their implications, so a consultant can be useful in bringing them to light. Suggested compensation need not, of course, come only from the plaintiff. The defendant can provide a “counteranchor” in rebuttal. Research shows that these values influence jurors’ awards in a reciprocal fashion to an ad damnum provided by the plaintiff (Greene et al., 1999; Marti and Wissler, 2000; Raitz et al., 1990); that is, a low anchor provided by the defense serves the function of pulling awards downward. This counteranchor effect can be especially useful in cases where liability has been established and the parties are only disputing the appropriate amount of damages. If the defendant suggests a damages amount while simultaneously contesting liability, it could have the unintended (and undesirable) effect of implying liability. Finally, the values that serve as anchors need not even come from the litigants at all. Where else might jurors receive arbitrary dollar values? The answer is: from the judge. The tort reform movement of the past two decades has led to the enactment of laws in several states that statutorily cap damage awards for pain and suffering and/or punitive damages. For example, in the realm of punitive damages, some states impose a flat amount as the upper limit (e.g., a cap of $250,000), other states use a maximum permitted ratio whereby punitive damages may not exceed some ratio of the compensatory damages, and some states impose both kinds of limits. Still other states (e.g., Louisiana and Nebraska), do not allow punitive damages at all. The explicit purpose of caps is to limit the amount that defendants are required to pay in damages; and in general, they serve this purpose well (e.g., Danzon, 1986; Yoon, 2001). However, they can have paradoxical effects in certain situations, such as when the cap exceeds what jurors might normally award. A study that examined

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the impact of caps on pain and suffering damages showed that in cases involving only mild or moderate injuries to the plaintiff, caps increased both the size and variability of the plaintiff’s award (Saks et al., 1997). Studies that have evaluated the impact of caps on punitive damage awards show that as the level of the cap on punitive damages increases, the size and variability of the compensatory award increase as well (Robbennolt & Studebaker, 1999). Jurors also augment their compensatory awards in situations where punitive damages seem appropriate but are not allowed (Greene, Coon, & Bornstein, 2001). Although jurors are not typically instructed about caps imposed on their awards, over time some members of the jury may become aware of such provisions and impose their own limitations on their awards (Saks et al., 1997). Consultants should alert attorneys to this possibility. In general, though, an important contribution of consultants is in assisting attorneys to justify whatever amount they propose at trial, so that jurors have some foundation for assessing damages and some data to use in supporting their arguments during deliberation. As noted above, experts can be crucial in substantiating a particular level of damages, but attorneys also play a vital role in this process, as they have considerable leeway in arguing for why a certain amount of money is appropriate. A common tactic that attorneys use in justifying noneconomic damages, popularized by the well-known lawyer Melvin Belli (1982), is to use per diem arguments. This sort of argument proposes a specific amount that a plaintiff’s injury is worth for each day that the plaintiff has to live with it. Calculated over the relevant time period – often the remainder of the plaintiff’s life – a relatively small per diem can produce a sizeable total. For example, imagine a 30-year-old plaintiff who has chronic back pain as the result of a motor vehicle accident. Assuming a life expectancy of 70 years, arguing that the plaintiff’s pain is worth a mere $10/day would yield a total of $146,000 ($10/day × 365 days/year × 40 years). Attorneys are not always permitted to make per diem arguments, but they are becoming increasingly acceptable (Pearson, 2002; McAuliff & Bornstein, 2010), and consultants can assist attorneys in presenting or rebutting this kind of argument. Do per diem arguments influence jurors’ damage awards, and if so, does it matter how one phrases the argument? As the name indicates, per diem arguments typically request a specific amount per day; but other units of time could be used as well. Asking for $1/day is roughly equal to $7/week, $30/month, and $365/year, but would these values have the same impact on jurors’ reasoning? McAuliff and Bornstein (2010) have found that the type of per diem argument does matter. They presented mock jurors with the facts of a hypothetical case in which a female plaintiff, a pedestrian, had been hit by a negligently driven ­automobile. At trial, she requested damages for a 2-year period of pain and suffering (because future pain and suffering is variable, unpredictable, and often diminishes, the researchers told participants that the plaintiff had recovered and that she sought ­damages solely for her past pain and suffering). She requested $10/h, $240/day, $7,300/month, or a lump sum of $175,000; there was also a control condition in which her attorney made no award recommendation. Even though the plaintiff’s ­perceived ­suffering did not vary across conditions, mock jurors awarded more when

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she asked for $10/h or $175,000 total than in the $7,300/month and control ­conditions. Their awards were also more variable in the $10/h condition. It is interesting to note that the lowest rate value (i.e., $10/h) led to the largest awards; this is probably because it was associated with the greatest number of time periods (i.e., there are more hours than days or months in a 2-year period). McAuliff and Bornstein presented additional data showing that, even though the per diem arguments were equivalent, participants perceived them differently, focusing more on the dollar value (as opposed to the time unit) as the amount/time request increased. They suggest that in the largest per diem argument ($7,300/month), the request might therefore seem excessive and lead to a lack of assimilation toward the anchor. A familiarity with these sorts of research findings would enable trial consultants to tailor attorneys’ arguments for maximum effectiveness. As with most of the endeavors described in this chapter, they are applicable to both plaintiff and defense efforts. We note one final role that the consultant can play in dealing with attorneys. Trials that detail intense human suffering and loss can be emotional affairs for all parties involved (including the jurors themselves). In these cases, attorneys must walk a fine line between professionalism and sentimentality, between detachment and compassion. In fact, both plaintiffs’ attorneys and defense counsel have the arduous job of zealously representing their clients’ interests while simultaneously maintaining an appropriate and credible demeanor with jurors; being either overly emotional or overly dismissive can have important negative ramifications. Jurors presumably scrutinize the credibility of plaintiff and defense counsel, looking for signs of honesty and dishonesty, integrity, and deceit, just as they do with lay and expert witnesses (though we know of no research that specifically tests this hypothesis). Astute consultants can help attorneys to become aware of the impact their style can have on the ultimate arbiters of damage awards – the jury.

Conclusions This chapter shows that trial consultants have much to offer civil litigants regarding damage awards. Perhaps their most frequent and useful role – given that the vast majority of cases do not go to trial – is in helping litigants to make informed settlement decisions. In order to make or evaluate a settlement offer, both plaintiffs and defendants must know how much a particular injury is likely to be “worth” at trial. Consultants have available a number of techniques that they can use to value a plaintiff’s injury. If a case does go to trial, consultants can aid in jury selection, retaining and preparing expert and lay witnesses, and developing effective attorney arguments and presentation styles. These activities are, of course, part of the trial consultant’s standard repertoire and are not limited to damages issues in civil cases. Nonetheless, civil cases raise some unique issues that do not come up in other types of trials. For example, in selecting jurors who will be most favorably disposed to one’s side of the case, the consultant and attorney must consider not only who is more or less

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likely to find the defendant liable, but also who will award more or less money if the defendant is deemed responsible. This dual decision does not typically arise in criminal trials where jurors determine guilt but rarely sentence a defendant who has been found guilty (capital trials are the most notable exception) and makes jury selection in injury cases especially difficult. Jurors who are more likely to find for the plaintiff on liability might or might not also be more inclined to award large sums of money as damages, if the defendant is first found liable. The testimony of expert witnesses and the arguments that are offered by counsel in injury-related cases are also highly specialized. Economic and actuarial testimony is a staple of contract disputes as well as tort cases, but this information is sometimes difficult for jurors to follow. Although broad principles of persuasion may apply to all types of attorney arguments, advocating for or against a particular sum of money is a good deal different from arguing that one’s client did not commit the crime with which he is charged. Obviously, different skills are required of attorneys working in these different domains, and trial consultants can work with attorneys to enhance the requisite skills in each field. Indeed, it behooves both plaintiff and defendant in high-stakes civil litigation to seek the advice and counsel of a trial consultant with special expertise in this area. Not doing so raises the risk that jurors will struggle, unaided, through the murky waters of subjectivity.

References Batson v. U.S., 476 U.S. 79 (1986). Belli, M. (1982). Modern trials (2nd ed.). St. Paul: West. Bornstein, B. H., & Nemeth, R. J. (1999). Jurors’ perception of violence: A framework for inquiry. Aggression and Violent Behavior, 4, 77–92. Bovbjerg, R. R., Sloan, F. A., & Blumstein, J. F. (1989). Valuing life and limb in tort: Scheduling “pain and suffering”. Northwestern University Law Review, 83, 908–976. Bovbjerg, R., Sloan, F., Dor, A., & Hsieh, C. (1991). Juries and justice: Are malpractice and other personal injuries created equal? Law and Contemporary Problems, 53, 5–42. Broeder, D. (1959). The University of Chicago jury project. Nebraska Law Review, 38, 744–760. Brown, L. (2003). Racial discrimination in jury selection: Professional misconduct, not legitimate advocacy. Review of Litigation, 22, 209–317. Chapman, G. B., & Bornstein, B. H. (1996). The more you ask for, the more you get: Anchoring in personal injury verdicts. Applied Cognitive Psychology, 10, 519–540. Colon ex rel. Molina v. Bic USA, Inc., 199 F.Supp.2d 53 (S.D.N.Y. 2001). Danzon, P. (1986). The frequency and severity of medical malpractice claims: New evidence. Law and Contemporary Problems, 49, 57–79. Diamond, S., Ellis, L., Saks, M., & Landsman, S. (2000). Ad damnums and caps: Assistance or merely influence? Paper presented at meeting of American Psychology-Law Society. New Orleans. Diamond, S., Saks, M., & Landsman, S. (1998). Juror judgments about liability and damages: Sources of variability and ways to increase consistency. DePaul Law Review, 48, 301–325. Dillehay, R. (1999). Authoritarianism and jurors. In W. Abbott & J. Batt (Eds.), Handbook of jury research. Philadelphia: American Law Institute. Eisenberg, T., Goerdt, J., Ostrom, B., Rottman, D., & Wells, M. T. (1997). The predictability of punitive damages. Journal of Legal Studies, 26, 623–660.

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Eisenberg, T., & Wells, M. (2002). Trial outcomes and demographics: Is there a Bronx effect? Texas Law Review, 80, 1839–1874. Feigenson, N., & Dunn, M. (2003). New visual technologies in court: Directions for research. Law and Human Behavior, 27, 109–126. Goodman-Delahunty, J., & Foote, W. (1995). Compensation for pain, suffering, and other psychological injuries: The impact of Daubert on employment discrimination claims. Behavioral Sciences and the Law, 13, 183–206. Greene, E., & Bornstein, B. H. (2000). Precious little guidance: Jury instruction on damage awards. Psychology, Public Policy, and Law, 6, 743–768. Greene, E., & Bornstein, B. H. (2003). Determining damages: The psychology of jury awards. Washington: American Psychological Association. Greene, E., Coon, D., & Bornstein, B. (2001). The effects of limiting punitive damage awards. Law and Human Behavior, 25, 215–232. Greene, E., Downey, C., & Goodman-Delahunty, J. (1999). Juror decisions about damages in employment discrimination cases. Behavioral Sciences & the Law, 17, 107–121. Greene, E., Goodman, J., & Loftus, E. F. (1991). Jurors’ attitudes about civil litigation and the size of damage awards. American University Law Review, 40, 805–820. Hans, V. P. (2000). Business on trial: The civil jury and corporate responsibility. New Haven: Yale University Press. Hans, V. P., & Lofquist, W. S. (1992). Jurors’ judgments of business liability in tort cases: Implications for the litigation explosion debate. Law and Society Review, 26, 85–115. Hans, V. P., & Lofquist, W. (1994). Perceptions of civil justice: The litigation crisis attitudes of civil jurors. Behavioral Sciences & the Law, 12, 181–196. Hastie, R., Schkade, D., & Payne, J. (1999). Juror judgments in civil cases: Effects of plaintiff’s request and plaintiff’s identity on punitive damage awards. Law and Human Behavior, 23, 445–470. Hayes, A. (1992). Inner city jurors tend to rebuff prosecutors and to back plaintiffs. Wall Street Journal, A1. Hinsz, V. B., & Indahl, K. E. (1995). Assimilation to anchors for damage awards in a mock civil trial. Journal of Applied Social Psychology, 25, 991–1026. Kalven, H. (1964). The dignity of the civil jury. Virginia Law Review, 50, 1055–1075. Kassin, S., & Dunn, M. (1997). Computer-animated displays and the jury: Facilitative and prejudicial effects. Law and Human Behavior, 21, 269–281. Langston, L., & Cohen, T. (2008). Civil bench and jury trials in state courts, 2005. Bureau of Justice Statistics Special Report (NCJ 223851). Washington: U.S. Department of Justice. Malouff, J., & Schutte, N. S. (1989). Shaping juror attitudes: Effects of requesting different damage amounts in personal injury trials. Journal of Social Psychology, 129, 491–497. Marti, M. W., & Wissler, R. L. (2000). Be careful what you ask for: The effect of anchors on personal injury damages awards. Journal of Experimental Psychology: Applied, 6, 91–103. McAuliff, B. D., & Bornstein, B. H. (2010). All anchors are not created equal: The effects of per diem versus lump sum requests on pain and suffering awards. Law and Human Behavior, 34, 164–174. Pearson, J. O. (2002). Per diem or similar mathematical basis for fixing damages for pain and suffering. American Law Reports: Cases and Annotations, 3, 940–986. Perrin, G., & Sales, B. (1993). Artificial legal standards in mental/emotional injury litigation. Behavioral Sciences & the Law, 11, 193–203. Plotkin, H. (2004). Appraising intangibles: How jurors award non-economic damages. Orange County Lawyer, 46, 44–47. Poser, S., Bornstein, B., & McGorty, E. (2003). Measuring damages for lost enjoyment of life: The view from the bench and the jury box. Law and Human Behavior, 27, 53–68. Raitz, A., Greene, E., Goodman, J., & Loftus, E. (1990). Determining damages: The influence of expert testimony on jurors’ decision making. Law and Human Behavior, 14, 385–395. Robbennolt, J. K., & Studebaker, C. A. (1999). Anchoring in the courtroom: The effects of caps on punitive damages. Law and Human Behavior, 23, 353–373. Rose, M., & Vidmar, N. (2002). The Bronx “Bronx jury”: A profile of civil jury awards in New York counties. Texas Law Review, 80, 1889–1898.

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Saks, M. (2002). Trial outcomes and demographics: Easy assumptions versus hard evidence. Texas Law Review, 80, 1877–1887. Saks, M. J., Hollinger, L. A., Wissler, R. L., Evans, D. L., & Hart, A. J. (1997). Reducing variability in civil jury awards. Law and Human Behavior, 21, 243–256. Schwartz, V., & Silverman, F. (2004). Hedonic damages: The rapidly bubbling cauldron. Brooklyn Law Review, 69, 1037–1071. Spiecker, S., & Worthington, D. (2003). The influence of opening statement/closing argument organizational strategy on juror verdict and damage awards. Law and Human Behavior, 27, 437–456. Tversky, A., & Kahneman, D. (1974). Judgment under uncertainty: Heuristics and biases. Science, 185, 1124–1131. Vidmar, N., Gross, F., & Rose, M. (1998). Jury awards for medical malpractice and postverdict adjustments of those awards. DePaul Law Review, 48, 265–299. Vinson, K., Costanzo, M., & Berger, D. (2008). Predictors of verdict and punitive damages in high stakes litigation. Behavioral Sciences and the Law, 26, 167–186. Wissler, R., Hart, A., & Saks, M. (1999). Decision making about general damages: A comparison of jurors, judges, and lawyers. Michigan Law Review, 98, 751–826. Yoon, A. (2001). Damage caps and civil litigation: An empirical study of medical malpractice litigation in the South. American Law and Economics Review, 3, 197–227.

Chapter 14

Neuropsychological Concerns William Drew Gouvier, Heather A. Stewart, and Adrianne M. Brennan

Introduction Owing to advances in injury prevention, acute emergency care, and rehabilitation technology, individuals who have sustained neurological insult, such as traumatic brain injury (TBI), enjoy a much improved prognosis. Each year, approximately 1.4 million Americans sustain TBIs, 230,000 of whom survive (Thurman & Guerrero, 1999). Additionally, at any given time there are 5.3 million Americans living with TBI-related disability (Langlois, Rutland-Brown, & Thomas, 2004). Costs associated with TBI are among the highest of all injuries and account for $48.3 billion annually (Brain Injury Association, 1999). The gravity of these statistics is underscored by the prediction that by the year 2020, TBI will be the third leading cause of death and disability (Murray & Lopez, 1997). Due to the prevalence of neurological insult and the monetary expenses related to TBI, civil cases related to TBI are becoming increasingly more common within the forensic arena. Law firms are among the top sources of referral for neuropsychologists (Sweet & Moberg, 1990; Sweet, Moberg, & Westergaard, 1996). In a recent survey of practicing neuropsychologists, 94% reported working within a legal setting (Essig, Mittenberg, Peterson, Strauman, & Cooper, 2001). Neuropsychologists are most commonly called upon to assess levels of functioning following a brain injury; however, they can also be called upon for the assessment of acute and chronic pain, mental competency, guardianship, criminal responsibility, and financial compensation (Denney & Wynkoop, 2000; Kaufmann, 2005; Spreen & Strauss, 1998; Tyrer & Lievesley, 2003; Wasyliw & Golden, 1985; Ylvisaker, Kolpan, & Rosenthal, 1994). An estimated 62% of attorneys retain neuropsychologists in the majority of their brain injury cases, with plaintiff attorneys utilizing neuropsychologists more than any other expert witness (Essig et al., 2001). Interestingly, in many jurisdictions, neuropsychologists can testify both to the nature and extent of injuries as well

W.D. Gouvier (*) Department of Psychology, Louisiana State University, Baton Rouge, LA 70803, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_14, © Springer Science+Business Media, LLC 2011

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as to the cause of injury. The reader is encouraged to consult with relevant state codes and legal precedents for states that allow testimony on causation (Heilbronner & Karavidas, 1997; Hom, 2003; Kaufmann, 2005; Richardson & Adams, 1992). This chapter is intended as a guide for trial consultants as well as legal, graduate, and undergraduate students interested in the application of neuropsychology to the legal setting. Before beginning our discussion on the forensic neuropsychological evaluation, a brief review of important terms and definitions will be provided. For example, a neuropsychologist is defined as a clinical psychologist who applies knowledge of psychological, neurological, cognitive, behavioral, and physiological principles, techniques, and tests, in order to evaluate patients’ strengths and weaknesses as they relate to central nervous system functioning (Barth et  al., 2003). In addition, neuropsychologists use their knowledge and information to identify and diagnose neurobehavioral disorders as well as plan and implement rehabilitation programs. A specialized neuropsychologist, such as the forensic neuropsychologist, applies knowledge of brain–behavior relationships to a particular issue, in a manner that is based on scientifically validated principles and methodologies (Hom, 2003). This chapter will discuss issues germane to the role of neuropsychology within a legal setting and will discuss relevant topics including (a) legal and ethical issues, (b) assessment, and (c) recommendations for rehabilitation of brain-injury sequelae. There are four cardinal principles that apply to the forensic neuropsychologist. These principles are (1) that optimal patient outcome is promoted by appropriate legal outcomes, (2) that the quality and quantity of neuropsychological evidence significantly impacts the legal outcome, (3) that multidisciplinary cooperation in litigation improves the legal outcome, and (4) that to ensure success, neuropsychologists must be forensically literate (Taylor, 1996, 1999). This last principle is of particular importance because the forensic clinician must ensure that they are competent in both the principles and application of neuropsychology as well as issues relevant to the application of their field of study to the forensic arena. Important forensic issues include being aware of legal statutes and the various interpretations of those statutes, knowing the role and extent of provided testimony, and the ability to accurately communicate the strength of their scientific conclusions. When testifying, the neuropsychologist must be cognizant of the need to (a) limit testimony solely to domains of competence, (b) ensure fluency in legal definitions and potential differences in the admissibility of their testimony, (c) clarify roles within the setting as one of experts rather than advocates, and (d) appropriately communicate the confidence of their conclusions (Taylor, 1999). When providing a conclusion, the neuropsychologist must be able to confidently and accurately communicate the strength of their conclusions as: (a) possible – the relationship between A and B is greater than zero, (b) probable – the relationship between A and B is greater than 50% (i.e., more probable than not), or (c) a reasonable degree of neuropsychological certainty, or (d) clear and convincing (Hartman, 1999; Taylor, 1999). While the distinction between the latter two categories is not operationally defined, one can view the distinction as a strong argument with valid opposing views (c), versus arguments sufficiently strong that no challenge can be seriously considered.

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Another, often overlooked, task of the forensic neuropsychologist is that of attorney education. Neuropsychologists are frequently retained to educate attorneys about issues relevant to a case (Essig et al., 2001; Kaufmann, 2005; Van Gorp & McMullen, 1997). In a recent survey, more than 75% of personal injury plaintiff attorneys report that neuropsychologists assist in their preparation for crossexamination in cases where neuropsychological testimony is pertinent. Importantly, however, the neuropsychologist working in this capacity must stay vigilant to ensure that information intended for educational purposes is not misused or misinterpreted by the attorney (Essig et  al., 2001). Another important issue is that of third-party presence. Whether or not third parties are permitted during an evaluation depends on the particular jurisdiction within which the case is taking place, but the practice is generally discouraged due to potential ethical dilemmas and social facilitation or inhibition effects (McCaffrey, Fisher, Gold, & Lynch, 1996). The two most important standards applicable to the admission of testimony of a forensic neuropsychologist are the Frye and Daubert Standards (see chapters by Pearce and Cambron). Historically, in order for expert testimony to hold up in a court of law, it must have met all of the requirements of the Frye Standard. The Frye Standard stated that all underlying scientific principles must be “sufficiently established to have gained general acceptance in the particular field in which they belong” (Frye v. United States, 293 F.; McKinzey & Ziegler, 1999). But in 1972, Federal Rule of Evidence 702 displaced the Frye Standard by providing guidelines on the admissibility of scientific evidence. The rule stated that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case” (Fed. Rules Evid. Rule 702, 28 U.S.C.A.). The premise of this requirement was that any expert testimony must be reliable to be admissible. Only when the testimony is reliable can it assist the trier of fact in understanding and interpreting the evidence (Reed, 1996; Vallabhajosula & Van Gorp, 2001). Federal Rule 702 has since been amended in response to the U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1995). In 1995, the Daubert Standard determined that all trial judges would be responsible for determining the admissibility of scientific evidence. The broad criteria of Federal Rule of Evidence 702 would no longer determine the admissibility of scientific evidence; now, the requirement for admission of scientific evidence would be determined by a trial judge via a nonexclusive checklist handed down in Daubert. The specific factors explicated by the Daubert Standard are (1) whether the expert’s technique can be or has been tested; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community. The Daubert Standard further stated that evidentiary reliability would

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be based on scientific validity (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1995). In psychology, validity is defined as the extent to which a test measures what it purports to measure, while reliability refers to the reproducibility of the measurement. In other words, reliability refers to the degree to which an obtained score approximates an actual score, and validity refers to the degree to which the obtained score accurately describes the phenomena of interest (Gouvier, 1999). In law, evidence is considered reliable if it proves what it purports to prove (Vallabhajosula & Van Gorp, 2001). Since it is well known in psychometric theory that psychological validity is constrained by psychometric reliability, evidentiary reliability under Daubert is equivalent to psychology’s use of the term validity. It is based on the reliability and validity of instruments used to collect data and the inferential techniques used to analyze and generate diagnoses and opinions (Fielder, 1997).

Neuropsychological Assessment Neuropsychological assessment has been found to be as valid as the majority of traditional medical diagnostics (Meyer et  al., 2001). Overall, neuropsychological assessments evaluate a patient’s “abilities distributed on a gradient … taking into account the relationship of each measure with age, education, gender, and intelligence if such ­relation can be found in normative studies” (Spreen & Strauss, 1998; p. v). Ideally, assessments should be conducted early and repeatedly (Bajo & Fleminger, 2002; Bennett, 2001; Giacino, 2004; Giacino et  al., 2002). In a recent review, Sherer and Novack (2003) recommended that serial assessments begin following the resolution of posttraumatic amnesia (PTA), or 1 week to 1 month after injury, and continue throughout the recovery process, lasting up to 2 years post-injury. These baseline and ­subsequent serial assessments provide valuable demonstrations of deterioration or recovery. Such demonstrations are important not only to aid patient understanding but also to aid the clinician in their conceptualization of the case (Robertson & Murre, 1999). There is a variety of different approaches to the neuropsychological assessment, including the use of flexible deficit focused batteries driven by a process approach, the use of standardized fixed batteries that rely primarily on an actuarial approach to interpretation, and the reliance on pathognomonic signs and profile interpretations to infer the presence of brain dysfunction. Of these approaches, former two have garnered nearly all of the attention and debate in the forensic neuropsychological literature. The clinical approach to neuropsychological assessment utilizes a flexible battery of tests, each tailored to the patient and emphasizing qualitative evaluation of functioning (Lezak, 2004). Strengths of this approach include flexibility and the ability to provide a detailed profile of individual strengths and weaknesses. Weaknesses of this approach include examiner subjectivity based on clinical experience and less empirical methodology. Sweet et al. (1996) noted that the use of flexible batteries had increased to 60% in recent years. Given the current trends in reduced testing time associated with the increase in managed health-care providers, it is believed that this trend will continue.

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An actuarial-quantitative approach to neuropsychological assessment utilizes objective data, based upon empirically validated norms (Reitan & Wolfson, 1993). An obvious strength of this approach is its structure, which prevents the oversight of important aspects of functioning. Also, an actuarial approach most clearly satisfies the Daubert standard because it can be easily replicated and evaluated by other practitioners (Reed, 1996; Russell, Russell, & Hill, 2005). Weaknesses of the actuarial approach include the potential over-reliance on numerical data and the lesser consideration of factors such as motivation and premorbid strengths and weaknesses. Furthermore, the use of fixed batteries usually requires long hours of assessment and often neglects specific deficits (Spreen & Strauss, 1998). Neuropsychologists are relying less and less on fixed batteries and the percentage of such batteries had reduced to 14% by 1994 (Sweet et al., 1996). Overall, the neuropsychological evaluation emphasizes the standardized collection of data, which is empirically correlated with behavioral and physiological indices (Wasyliw & Golden, 1985; Reitan & Wolfson, 2000). Indeed, a neuropsychologist who considers a multitude of factors including premorbid ability, baseline functioning, challenging behaviors, communication abilities, perseverative or memory difficulties, and who has modified the evaluation accordingly, provides the most confident and meaningful evaluation (Denney & Wynkoop, 2000; Holden, 2001; Klonoff & Dawson, 2004; Van Gorp & McMullen, 1997; Ylvisaker et  al., 1994; Zasler & Martelli, 2003). Thus, a thorough assessment of damages requires a process that is best conceptualized in terms of a neuropsychological caseformulation. Optimally, this formulation is achieved by (a) considering the nature of the physical injury, (b) assessing neuropsychological functioning with serial assessments and, if possible, with multiple sources of information, (c) estimating prognosis and expected recovery, (d) evaluating treatment options in terms of present and probable future needs, and (e) considering state and federal guidelines (Hartman, 1999; Zillmer, 2004).

Premorbid Functioning Premorbid, or pre-injury, IQ estimation is important in that it provides one of the relatively few quantifiable markers of functioning before injury (Vanderploeg, Schinka, & Axelrod, 1996). Several techniques are available and they are described in detail in Neuropsychological Assessment, 4th edn (Lezak, 2004). Briefly, they are as follows: (1) demographic approaches, which incorporate factors such as the patient’s age, gender, level of educational attainment, as well as pre-injury employment; (2) current performance approaches, which estimate the patient’s premorbid IQ based on current performance; and (3) combined approaches, which are based on both demographic variables and current performance levels. Consideration of the most important method in determining premorbid IQ levels includes the information available to the clinician as well as length of assessment and the patient’s ability to complete sometimes complex measures.

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Mental Status Examination The Mental Status Examination is typically the first assessment procedure conducted to evaluate current performance. It incorporates information obtained from direct ­questioning as well as behavioral observations. Several standardized mental status examinations are available, including the Dementia Rating Scale (Mattis, Jurica, & Leitten, 2001), the Mini-Mental State Exam (Folstein, Folstein, & McHugh, 1975), and the Neurocognitive Status Exam (Kiernan, Mueller, & Langston, 1995), and while the test formats vary, nearly all incorporate information on the following: (1) appearance, (2) orientation, (3) speech, (4) thinking, (5) attention and concentration, (6) memory, (7) cognitive functioning, (8) emotional state, and (9) insight and judgment (Lezak, 2004). Performance on these nine domains indicates whether formal testing is possible, and, if so, which areas are most problematic. In addition, because of its brevity and portability, the mental status exam is often the best measure of progress in an individual with severe brain damage in the first 6–8 weeks following return to consciousness.

Intellectual Functioning Intelligence testing is an integral part of the neuropsychological examination and may elucidate abilities such as memory, learning, perceptual organization, problem-solving, and abstract reasoning that have been lowered by brain damage (Groth-Marnat, 1997). The most frequently used assessment instruments for intelligence are the Wechsler scales (Groth-Marnat, 2000). Scores generated by performance on the verbal and nonverbal subtests provide three indices of intelligence, namely Full Scale IQ, Verbal IQ, and Performance IQ; and four ability indices, Verbal Comprehension, Perceptual Organization, Working Memory, and Processing Speed (Wechsler, 1997a). Because the Wechsler scales were developed to assess intellectual strengths and weaknesses rather than the absence or presence of brain damage, no specific brain damage profile exists (Groth-Marnat, 1997). But, nonetheless, patterns of brain damage can be inferred from performance on these scales. In addition to the Wechsler scales, the use of other broad measures of global intelligence such as the Stanford-Binet, 5th edn (Roid, 2003) as well as measures specific to a particular type of intelligence such as the Test of Nonverbal Intelligence (Brown, 2003), Raven’s Progressive Matrices (Raven, 1938), and the Peabody Picture Vocabulary Test (Dunn & Dunn, 1997) may help the clinician elucidate a patient’s cognitive strengths and weaknesses.

Memory Another important staple in the neuropsychological battery is memory assessment. A plethora of assessment measures, including the Wechsler Memory Scale, 3rd edn (Wechsler, 1997b), the Rey Auditory Verbal Learning Test (Rey, 1964), the California Verbal Learning Test, 2nd edn (Delis, Kramer, Kaplan et al., 2000), the Rey-Osterrith

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Complex Figure Test (Rey, 1964), and the Benton Visual Retention Test (Sivan, 1992), exists to measure multiple domains of memory such as verbal/visual and immediate/delayed aspects of memory as well as memory-related functions including­ attention, concentration, organization, and processing time. Overall, the majority of memory measures are quite sensitive to brain damage, and error analysis can help the clinician in localizing the damage. The reader is referred to Neuropsychological Assessment, 4th edn for a more detailed review (Lezak, 2004).

Attention and Concentration Assessment of attention and concentration is especially important because impairment in these areas has the ability to influence the outcome of nearly all measures of the neuropsychological battery. After all, how can a patient perform adequately if he cannot attend to the information presented? Attention and concentration can be broken down into several different components, including vigilance, which relates to targeting and selecting specific information; mental tracking, which requires a patient to hold and manipulate information; and complex attention, which requires a patient to hold and manipulate more complex information as well as be selective in the output of information. Several tests, including the Letter Cancellation Test (Diller et al., 1974), the d2 Test of Attention (Brickenkamp & Zillmer, 1998), Conner’s Continuous Performance Test (Conners, 1995), and the Trail Making Test (Reitan, 1992) are available to assess global and specific aspects of attention and concentration (Lezak, 2004).

Executive Functioning Higher thought processes such as the ability to initiate and follow-through on complex problem-solving tasks and the ability to think abstractly and flexibly can be assessed by incorporating executive functioning measures into the neuropsychological battery. Executive functioning is tied to the frontal lobes and impairments in executive functioning can show up as impaired initiation, preservations, concrete and inflexible thinking, and an inability to shift mental states (Lezak, 2004). A number of measures are available to assess different aspects of executive functioning including the Halstead Category Test (Choca, Laatsch, Wetzel, & Agresti, 1997), the Wisconsin Card Sorting Test (Heaton, Chelune, Talley, Kay, & Curtiss, 1993), and the Controlled Oral Word Association Test (Benton & Hamsher, 1989) to name a few.

Language Within the neuropsychological battery, the assessment of language deficits can be done in several different ways, but almost always will include assessing for aphasia and communication disorders as well as verbal fluency and naming ability (Lezak, 2004).

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Assessment techniques available to detect the presence of aphasia include the ­Reitan-Indiana Aphasia Screening Test (Halstead & Wepman, 1959), the Boston Diagnostic Aphasia Exam (Goodglass & Kaplan, 1983), and the Multilingual Aphasia Examination (Benton & Hamsher, 1989). Measures that assess naming ability are also available and are based on confrontational naming, where a patient is presented with a stimulus with the expectation to name it. The Boston Naming Test (Kaplan, Goodglass, & Weintraub, 1983) and the Controlled Oral Word Association Test are measures of confrontational naming. In depth information regarding language assessment is available in Neuropsychological Assessment, 4th edn (Lezak, 2004).

Sensorimotor Functioning Another important component to include in the neuropsychological battery is the assessment of sensory-perceptual and motor functioning. While not purely cognitive in nature, deficits in either sensory or motor functioning can inform the clinician about laterality and localization of brain damage. Perceptual impairment can be observed in several different sensory modalities, including visual, auditory, tactile, and olfaction. A measure that assesses for impairments in visual, auditory, and tactile modalities is the Sensory Perceptual Examination of the Halstead-Reitan Battery (Reitan & Wolfson, 1993). Assessment of olfaction is also important because diminished olfactory sensitivity accompanies a number of different neuropsychological disorders (Lezak, 2004). The most widely used olfaction test is the University of Pennsylvania Smell Identification Test (Doty, 1992). Motor assessment is often used as an indicator of lesion lateralization (Spreen & Strauss, 1998). Well-known measures of motor speed and strength include the Finger Tapping Test (Reitan & Wolfson, 1993), the Grooved Pegboard Test (Klove, 1963), and the Grip Strength Test (Reitan & Wolfson, 1993). The Finger Tapping Test is one of the most widely used tests of manual dexterity, and lateralized lesions usually result in slowing of the tapping rate of the contralateral hand (Haaland & Delaney, 1981). The Grooved Pegboard Test is a motor test that capitalizes on complex coordination. On this measure, patients are asked to place pegs into slotted holes angled at different positions. The rate at which a patient completes this task is indicative of level of impairment. The Grip Strength Test is a measure of hand strength. Impairments are based on the assumption that lateralized brain damage can affect contralateral hand strength (Reitan & Wolfson, 1993).

Psychological Assessment Psychological disorders are frequently comorbid with, or can be a consequence of, brain damage and thus make psychological assessment a very important component of the neuropsychological battery. Measures detecting the presence and severity of

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psychopathology are varied and range from structured and semi-structured clinical interviews to self-report measures. Popular structured clinical interviews include the Structured Clinical Interview for the Diagnostic and Statistical Manual of Mental Disorders, 4th edn. Clinician Version (First, Spitzer, Gibbon, & William, 1997) and the Diagnostic Interview Schedule (Robins, Helzer, Croughan, & Ratliff, 1981). Similar to the structured interviews, self-report measures also allow for the assessment of psychopathology. For example, the Minnesota Multiphasic Personality Inventory, 2nd edn (Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 1989; Hathaway & McKinley, 1951) and the Personality Assessment Inventory (Morey, 1991) are standardized questionnaires that elicit a wide range of self-descriptions that are scored to provide a quantitative measurement of an individual’s level of emotional adjustment (Groth-Marnat, 1997). Self-report measures with a focus on specific psychological disorders are also available and include the Beck Depression Inventory-II (Beck, Steer, & Brown, 1996) and the State-Trait Anxiety Inventory (Spielberger, Gorsuch, & Lushene, 1970) as well as many others.

Specialized Measures Due to the presenting problem, the clinician may also consider including specialized measures within the neuropsychological assessment. For instance, in patients with neurological injuries, collateral interviews such as the Iowa Collateral Head Injury Interview (Varney, 1989; Varney & Roberts, 1999; Zasler & Martelli, 2003) and the Iowa Interview for Partial Seizure-Like Symptoms should be included (Varney & Roberts, 1999). For patients with possible developmental disability, measures of adaptive functioning such as the Vineland Adaptive Behavior Scale (Sparrow, Balla, & Cicchetti, 1984) and the Adaptive Behavior Scale – Residential and Community: 2 (Nihira, Leland, & Lambert, 1992) may be considered. Finally, in patients with dementia and severe brain injury, measures of driving skills such as the Driving Scenes test of the Neuropsychological Assessment Battery should be considered (Lundqvist & Rönnberg, 2001; Stern & White, 2003).

Malingering Definitions of Malingering An important issue when assessing neuropsychological deficits within the forensic arena is to determine whether a patient has exaggerated or fabricated deficits during the assessment (Vallabhajosula & Van Gorp, 2001). According to the DSM-IV-TR, the essential feature of malingering is “intentional or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding

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­ ilitary duty, avoiding work, obtaining financial compensation, evading criminal m prosecution, or obtaining drugs” (American Psychiatric Association, 2000). Because the DSM-IV-TR does not consider malingering a specific disorder, ­guidelines rather than diagnostic criteria are provided. These guidelines include a (1) medicolegal context of presentation, (2) marked discrepancy between claimed disability and objective findings, (3) lack of cooperation in assessment and treatment, and (4) the presence of antisocial personality disorder. In response to the DSM-IV-TR’s broad categorization, various criteria have been proposed to more precisely define ­malingering (Greiffenstein, Gola & Baker, 1995; Rogers, 1997; Trueblood & Schmidt, 1993). Perhaps the most thoroughly outlined proposal is provided by Slick, Sherman, and Iverson (1999), who define malingering as “the volitional exaggeration or fabrication of cognitive dysfunction for the purpose of obtaining substantial material gain, or avoiding or escaping formal duty or responsibility” (p. 552). The authors describe three categories of malingering, namely possible, probable, and definite. For a patient to be classified into one of these categories, some combination of four criteria is to be met. The four criteria are as follows: Criterion A:  Presence of a substantial external incentive: at least one clearly identifiable and substantial external incentive is present at the time of examination. Criterion B:  Evidence from neuropsychological testing: evidence of exaggeration or fabrication on neuropsychological tests as evidenced from at least one of the following: 1. Definite response bias – below chance performance (p < 0.05) on one or more forced-choice measures. 2. Probable response bias – performance on a well-validated test or index is consistent with fabrication or exaggeration. 3. Discrepancy between test data and known patterns of brain functioning. 4. Discrepancy between test data and observed behavior. 5. Discrepancy between test data and reliable collateral reports. 6. Discrepancy between test data and documented background history. Criterion C: Evidence from self-report: significant inconsistencies or discrepancies in a patient’s self-reported symptoms that suggest fabrication or exaggeration as evidenced by one of the following: 1 . Self-reported history is discrepant with documented history. 2. Self-reported symptoms are discrepant with known patterns of brain functioning. 3. Self-reported symptoms are discrepant with behavioral observations. 4. Self-reported symptoms are discrepant with information obtained from collateral informants. 5. Evidence of exaggerated or fabricated psychological dysfunction – performance on well-validated validity scales or indices on self-report measures of psychological adjustment is strongly suggestive of exaggeration or fabrication. Criterion D: Behaviors meeting necessary criteria from groups B or C are not fully accounted for by Psychiatric, Neurological, or Developmental Factors: behaviors

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are the product of an informed, rational, and volitional effort aimed at least in part toward acquiring or achieving external incentives. To qualify as a definite malingerer, the patient must meet criteria A, B1, and D; meaning there must be substantial external incentive, the presence of a definite negative response bias on neuropsychological test(s), and no psychiatric, neurological, or developmental factor that would significantly diminish one’s capacity to appreciate laws or mores against malingering. To qualify as a probable malingerer, the patient must meet criterion A, two or more from B2–B6, and D, or criterion A, one from B2–B6, one from C1–C5, and D. Therefore, a patient can be classified as a probable malingerer in two ways, by having the presence of external incentive, two pieces of evidence from neuropsychological testing, and no psychiatric, neurological, or developmental disorder; or by having external incentive, one piece of evidence from neuropsychological testing, one piece of evidence from self-report, and no psychiatric, neurological, or developmental disorder. There are also two ways in which a patient can qualify as a possible malingerer: the patient must either meet criterion A, one from C1–C5, and D (external incentive, evidence from selfreport, and no psychiatric, neurological, or developmental disorder) or must meet criteria that would classify him/her as a definite or probable malingerer with the exception of criterion D. While fairly new, the proposed definition and criteria of Slick et al. (1999) appear to be gaining support in the research community. Several recent studies have classified subjects according to this definition and criteria, demonstrating a strong conceptual framework from which to operate (Greve, Bianchini, Mathias, Houston, & Crouch, 2002; Mathias, Greve, Bianchini, Houston, & Crouch, 2002). This system is vulnerable to abuse and criticism, as any possible malingerer can be assuredly reclassified as a probable malingerer if the neuropsychologist keeps administering more and more malingering tests until the client eventually fails one.

Types of Malingering Lipman (1962) distinguished among four types of malingering: (a) invention – the patient has no symptoms and fraudulently represents that he has, (b) perseveration – genuine symptoms were present, but have ceased and are alleged to continue during the time of the assessment, (c) exaggeration – the patient represents symptoms that are worse than they are, and (d) transference – genuine symptoms are fraudulently attributed to a separate incident. When looking at this issue, there are several ways to assess malingering. Which method a clinician uses should depend on the ­particulars of the case. Through the employment of multiple detection strategies, the likelihood of discovering malingering is increased. A multitiered approach using both quantitative and qualitative data provides the most stable foundation from which to base a diagnosis (Gouvier, Hayes, & Smiroldo, 1998; Reynolds, 1998; Slick et al., 1999).

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Malingering Detection Methods: Qualitative Data Recognition Versus Recall When a pattern of neuropsychological performance is markedly discrepant from currently accepted models of normal and abnormal brain functioning and the discrepancy is consistent with exaggeration or fabrication, malingering is suspected (Slick et al., 1999). One known method that taps into this discrepancy is the examination of recognition versus recall ability (Rogers, 1997). It is widely accepted that the ability to recognize learned items is nearly always better than the ability to recall them freely, so when recall is better than recognition performance, an attempt to exaggerate or fabricate may be to blame. Tests such as the RAVLT recognition task and the CVLT recognition task provide useful comparisons of a patient’s recognition and recall abilities. Tests using recognition tasks vary substantially in their sensitivity to response bias; however, so interpretations of their findings should be made accordingly (Gervais, Rohling, Green, & Ford, 2004).

Examination of the Performance Curve Another method that provides valuable qualitative information is the examination of the performance curve. The performance curve is evident when easy items are correctly answered more frequently than difficult items, and as the difficulty of the items increases the incidence of correct responding decreases (Rogers, 1997). It has been shown that some malingerers do not achieve an appropriate performance curve. That is, they do not achieve the expected proportion of correct responses as the item difficulty increases. According to Frederick and Foster (1991), malingerers often fail a “more-than-expected” proportion of easy items compared to their performance on more difficult items. Atypical Performance Another possible sign of malingering is atypical test performance. Mittenberg, Azrin, Millsaps, and Heilbronner (1993) examined feigned deficits in attention and concentration on the Wechsler Memory Scale – Revised (WMS-R) and found that simulated malingerers averaged two standard deviations below the mean on the attention/concentration index, yet only one standard deviation below normal on the general memory index. Furthermore, it was discovered that if the general memory index exceeded the attention/concentration index by 25 points or more, the probability of feigning was 85%. Atypical performances provide signals of the possibility of feigning because malingerers often fake deficits on tests that measure specific domains rather than show deficits in overall functioning (Rogers, 1997).

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Marked Inconsistencies When marked inconsistencies are observed during assessment, the possibility of malingering is considered. Marked inconsistencies can include a comparison of reported deficits with knowledge of true deficits from brain injury, or gross discrepancies between known recovery patterns and what is reported or observed through testing (Rogers, 1997). When no credible explanation for the observed deficits is available, malingering should be suspected. Unlike other detection methods, this strategy depends on the experience and expertise of the evaluating clinician. In fact, the greater the experience and expertise, the more likely the clinician is to be aware of a performance inconsistent with the reported injury.

Discrepancy Between Test Data and Observed Behavior Qualitative differences are further observed when there is a discrepancy between the test data and a patient’s observed behavior (Slick et al., 1999). Reynolds (1998) reported a case where a felony criminal referral could not recall his name, age, date of birth, or mother’s name, and received a total score of zero on the WAIS-R, yet when asked for his attorney’s information recited it from memory in clear and articulated speech. Although quite rare, an inconsistency of this magnitude is often all one needs for a diagnosis of malingering.

Discrepancy Between Test Data and Reliable Collateral Reports Similar to discrepancies between test data and observed behavior are discrepancies between test data and reliable collateral reports. Spouses, family members, or anyone else in close contact often provide reliable collateral reports with the patient. Slick et al. (1999) provide a case example where the patient was unable to perform simple math problems during testing yet handled all of the family’s finances. Clearly a discrepancy of this nature alerts the clinician to the possibility of exaggeration.

Discrepancy Between Test Data and Documented Background History Discrepancies between test data and documented background history may also be indicative of possible malingering. Reynolds (1998) advocates obtaining and reviewing all premorbid records as a way of verifying a patient’s self-report. As stated by Reynolds (1998), “every forensic psychologist has had the experience of the patient who, prior to his or her head injury, by self-report had been a high functioning

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i­ndividual, an A or B student in high school, who graduated in the top 10% of his or her class but whose high school transcript shows a GPA below 3.0, a class rank at the 50th percentile, and a SAT below 950” (p. 270). This retrospective bias is frequently observed among persons who have suffered some sort of physical injury or cognitive losses, even when there is no forensic element involved, and hence no implicit motivation to appear impaired (Hilsabeck, Gouvier, & Bolter, 1998).

Malingering Assessment Methods: Quantitative Data Forced-Choice Measures Forensically speaking, the best indication of malingering is derived from tests that are designed to specifically detect malingering. The most common malingering detection measures are those based on the forced-choice method (Haines & Norris, 1995). The rationale for using a forced-choice measure is based on the binomial distribution theorem. A patient is presented with a measure where a specific ability is assessed by a large number of items presented in a multiple-choice format (Rogers, 1997). The patient’s performance is then compared to the likelihood of success based on chance alone. For example, on a measure that consists of two items from which the patient must choose, the patient could theoretically answer 50% of the items correctly based on chance alone (Haines & Norris, 1995). The assumption behind forced-choice measures is that if a subject scores significantly below chance at a p < 0.05 level, there is the presence of purposive distortion by the patient, that is, the patient deliberately chose to respond with the incorrect answer (Reynolds, 1998). A major criticism of using forced-choice measures is that they are extremely conservative; by using a below chance performance as the criterion from which to determine malingering, only the most blatant malingerers are caught (Haines & Norris, 1995). Although the specificity (ability to identify persons without feigned neurocognitive problems) of the below chance index on a forced-choice measure is unsurpassed, the sensitivity (ability to detect individuals feigning cognitive impairment) appears to be unacceptably low, allowing many malingerers to slip through the cracks. In response to the low sensitivity of forced-choice measures came the derivation of cutoff scores.

Cutoff Scores Binder and Willis (1991) performed a validation study on a commonly used forcedchoice measure, the Portland Digit Recognition Test (PDRT) (Binder, 1993). The study was composed of six groups, three groups of head-injured patients with no financial incentive, one non-patient group instructed to simulate brain injury, and two groups with real-life incentives to appear brain-damaged. Results indicated that the two compensation seeking groups, as well as the simulators, performed significantly­ worse than the other groups. These findings allowed the examiners to develop a cutoff

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score to better assess the motivation to perform poorly. The cutoff score represents the lowest score achieved by subjects with documented brain dysfunction and no financial incentive; therefore, if a patient with minor or no documented brain injury performs significantly worse than patients with major brain dysfunction, malingering is to be suspected (Haines & Norris, 1995). However, c linicians must remain cognizant that patients with documented head injury are not capable of feigning believable memory deficits on the PDRT, thus potentially reducing the additive value of similar tests (Ju & Varney, 2000). The generation of cutoff scores made it so that it was no longer necessary to rely on scores significantly below chance as an indication of poor motivation, now less extreme scores could be used, thus improving the sensitivity of this method (Rogers, 1997). Popular forced-choice measures also include the PDRT, the Test of Memory Malingering (TOMM) (Tombaugh, 1996), and the Word Memory Test (WMT) (Green, Lees-Haley, & Allen, 2002).

Malingering Assessment Within Forensic Referrals Patients with pending legal charges or who are currently involved in other forms of litigation are more likely to exert less effort during neuropsychological evaluations than other patients (Gierok, Dickson, & Cole, 2005; Green, Rohling, Lees-Haley, & Allen, 2001). Neuropsychological research has generally acknowledged this phenomenon and a “paradigm shift” within the field has ensued (Green, 2003). Furthermore, in order for malingering detection measures to be accepted into evidence, there is a heightened need for neuropsychologists to demonstrate the reliability and scientific validity of the specific tests and measures they used during assessment (Vallabhajosula & Van Gorp, 2001). The scientific validity of a test designed to detect malingering is considered analogous to the test’s sensitivity, specificity, positive predictive value, and negative predictive value. The sensitivity of a test designed to detect malingering refers to the number of malingerers who are detected by the prediction method. More specifically, sensitivity refers to the number of malingerers who are “caught” by the measure. By contrast, a measure’s specificity refers to the number of honest respondents who are classified as such by the prediction method. Therefore, a measure’s specificity is determined by the exclusion of honest respondents as malingerers. Positive predictive value is the number of individuals who are predicted to be malingering, who are, in fact, malingering, whereas negative predictive value is the number of individuals who were predicted as honest respondents who truly were honest.

Recovery and Outcome Crucial to the assessment of damages is the ability to provide realistic cost estimates of the proposed plan of care. Recovery and outcome can be reliably measured using measures that are appropriate to the type of injury sustained as well as the

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particular interests of the clinician (Turner-Stokes, 1999). There is a variety of ways to predict recovery, including assessment of physical functioning and injury severity (Correia, Faust, & Doty, 2001; Englander, Cifu, Wright, & Black, 2003; Green, Rohling, Iverson, & Gervais, 2003); loss of consciousness, recovery of orientation, posttraumatic amnesia (Alderson & Novack, 2002; Cifu et  al., 1997; Dikmen, Machamer, Powell, & Temkin, 2000; Iverson, Lovell, & Smith, 2000; Katz & Alexander, 1994; Novack, Bush, Meythaler, & Canupp, 2001; Rappaport, Hall, Hopkins, Belleza, & Cope, 1982; Stuss et al., 1999; Whyte, Cifu, Dikmen, & Temkin, 2001); premorbid status (Novack et  al., 2001); and psychosocial functioning and adaptive functioning (Boake, 1996; Formisano et al., 2004; Hodgkinson, Veerabangsa, Drane, & McCluskey 2000; Jennett & Bond, 1975; Rappaport et al., 1982). When predicting recovery, it is important to consider the expected patterns of recovery. In general, recovery patterns from diffuse pathology are consistent, while recovery from focal pathology is typically unpredictable (Dikmen, Machamer, Winn, & Temkin, 1995). Once particular functions have improved, they tend to maintain. As patients recover, the presenting cognitive impairments improve from more basic deficits in arousal and consciousness to higher levels such as attention, executive functioning, and insight (Stuss & Buckle, 1992). Time between injury and the implementation of a rehabilitation program also significantly impacts the success of rehabilitation (Wood, McCrea, Wood, & Merriman, 1999). An essential part of treatment planning depends on recommendations supported by appropriate and effective treatments. Rehabilitation goals should include restorative methods when appropriate, which attempt to improve functioning to premorbid levels, as well as compensatory models, which attempt to improve patient functioning by assisting them in their adaptation to their disability. Restitution and compensation models have been successful and continue to show promise as rehabilitation technology continues to progress (Carney et al., 1999; Rath, Langenbahn, Simon, Sherr, Fletcher, & Diller, 2004). Familiarity with frequently encountered sequelae following neurological injury and relevant treatment research is essential to treatment planning. Common issues following TBI include mild traumatic brain injury (MTBI), postconcussional disorder (PCD), anosognosia, anxiety and depression, social and relational problems, and vocational problems. Due to the abundance of brain-injury sequelae, even a cursory discussion of disorders and their relevant treatments is impossible within the scope of this chapter. The reader is encouraged to independently refer to studies and reviews of post-TBI sequelae (Albensi & Janigro, 2003; Hinkebein, Martin, Callahan, & Johnstone, 2003; Mehta, et al., 1999; Millar, Nicoll, Thornhill, Murray, & Teasdale, 2003; Nemetz et al., 1999), substance abuse disorders (Ashman, Schwartz, Cantor, Hibbard, & Gordon, 2004; Corrigan, 1995; Corrigan, Smith-Knapp, & Granger, 1998; Taylor, Kreutzer, Demm, & Meade, 2003), changes in behavior and personality (Bezeau, Bogod, & Mateer, 2004; Eames & Wood, 2003; Ponsford, 2003), disorders of the expression and recognition of emotion (Borod, Bloom, Brickman, Nakhutina, & Curko, 2002), diminished motivation (Marin & Wilkosz, 2005), epileptic and nonepileptic seizures (Binder, Kinderman, Heaton, & Salinsky, 1998; Bushnik, Englander, & Duong 2004; Roberts, 1999; Westbrook, Devinsky, & Geocadin, 1998), and pain (Ehde & Jensen, 2004; Tyrer & Lievesley, 2003).

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Mild Traumatic Brain Injury and Postconcussional Disorder MTBI is defined as a traumatically induced physiologic disruption of cerebral function, manifested by at least one of the following: (1) loss of consciousness of no longer than 30 min; (2) loss of memory; (3) alteration in mental status at the time of the accident, even in the absence of loss of consciousness or amnesia; (4) physical symptoms that are potentially brain-related; and (5) development of posttraumatic cognitive deficits that cannot be completely accounted for by emotional factors, but whose initial Glasgow Coma Scale did not exceed a score of 13–15 after 30 min and whose posttraumatic amnesia did not last longer than 24 h (The Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine, 1993). Typical MTBI symptomatology includes cognitive deficits in areas such as attention, concentration, memory, irritability, as well as behavioral changes such as disinhibition, and emotional lability. MTBI represents the TBI population at the margin between being substantially impaired from acquired brain injury versus having minimal neurocognitive losses, which interact with emotional reactions to the injury and perceived losses. The majority of patients with MTBI recover, although up to 20% continue to experience residual symptoms, often described as PCD (Ruff, 2005; Ruff, Camenzuli, & Mueller, 1996; Hartlage, Durant-Wilson, & Patch, 2001). The symptoms of PCD typically resolve within the first 3–6 months post-injury (Kashluba et al., 2004) though symptoms can last several years or longer (Millis et al., 2001). Additionally, symptoms of PCD may be associated with, and mediated by, nonneurological factors, such as demographics, depression, headaches, and stress (Bryant & Harvey, 1999; Gouvier, Cubic, Jones, Brantley, & Cutlip, 1992; Gunstad & Suhr, 2004; Iverson & Lange, 2003; Santa Maria, Pinkston, Miller, & Gouvier, 2001). Many of the symptoms of MTBI and PCD also occur in patients with other medical issues, such as chronic pain. In fact, even healthy controls report symptoms associated with PCD, thus underscoring the importance of appropriate differential diagnosis (Gunstad & Suhr, 2004; Iverson & Lange, 2003; Smith-Seemiller, Fow, Kant, & Franzen, 2003). Rehabilitation programs to treat cognitive deficits have shown some promise, particularly for attention and memory impairments (Cappa et  al., 2003; Dirette, 2002; Gorman, Dayle, Hood & Rumrell, 2003; Khan-Bourne & Brown, 2003; National Institutes of Health, 1998). Researchers generally agree that a combined approach that incorporates standardized treatment as well as individualized treatment has the best efficacy and effectiveness (Carney et  al.,1999; Cicerone et  al., 2000). For example, in one study, significant improvement was observed on both imaging and neuropsychological test performance following cognitive rehabilitation training (Laatsch, Little, & Thulborn, 2004). Computer-assisted memory retraining for patients with TBI-related amnesia has also been shown to be effective, though to a limited degree (Tam & Man, 2004). Klonoff, Lamb, and Henderson (2000, 2001) have provided some of the most encouraging data with initially observed improvements in functioning lasting as long as 11 years following the cessation of treatment.

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In a review of cognitive rehabilitation technologies, Gartland (2004) reported on factors that contribute most strongly to success. These factors include (a) the presence and severity of cognitive deficits, (b) the type of rehabilitation utilized, (c) the patient’s capacity for independent living, and (d) the level of vocational activity. While the efficacy and effectiveness of cognitive rehabilitation programs have been shown, cross-validation is still needed (Kapur, Glisky, & Wilson, 2004). Management of neurobehavioral disorders through pharmacotherapy has been found to enhance recovery potential as well (Glenn & Wroblewski, 2005). Importantly, however, the majority of efficacy and effectiveness research on pharmacotherapy has been exploratory, and further research is needed before pharmacotherapy can be confidently included as an element of cognitive rehabilitation (Brain Injury Special Interest Group, 1998; Deb & Crownshaw, 2004; Kadyan, Colachis, Depalma, Sanderson, & Mysiw, 2003).

Anosognosia Patients’ self-awareness of impairments following neurological insult can vary; some patients are fully cognizant of their deficits while others are largely oblivious. Impaired awareness of neurological deficits, formally known as anosognosia, is frequently observed following moderate and severe TBI, impedes gains that are possible from rehabilitation (Prigatano, 2005; Sherer, Hart, Whyte, Nick, & Yablon, 2005; Wehman, Targett, West, & Kregel, 2005; Williams & Evans, 2003). One study examined the impact of self-awareness on goal setting and rehabilitation outcome and found that patients who had less realistic awareness of their limitations also set less realistic goals (Fischer, Gauggel, and Trexler, 2004). Subsequently, these patients showed less improvement through rehabilitation. Furthermore, patients with accurate insight of their impairments made greater gains in cognitive functioning than did patients without accurate insight (Koltai, Welsh-Bohmer, & Schmechel, 2001).

Depression and Anxiety Disorders Disorders of anxiety and depression frequently follow TBI, and the importance of considering differential diagnoses, reactivity, and co-occurring diagnoses should not be dismissed (Williams, Evans, & Fleminger, 2003). The emergence of depressive and/or anxiety symptoms following neurological injury is commonly observed and has been found to affect cognitive performance (Elderkin-Thompson et  al., 2003; Rath et al., 2004). In a review of cognitive behavioral therapies (CBT) applied to patients with TBI, Khan-Bourne and Brown (2003) demonstrated that CBT, in particular, showed great potential for its utility in treating patients with brain injury. Many depressive symptoms overlap with symptoms of dementia (e.g., memory problems and slowness of thought), and the clinician must be skilled in separating true cognitive impairment from pseudodementia or mood-induced cognitive impairment.

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Symptoms such as psychomotor agitation, impaired immediate memory and learning abilities, defective attention and concentration, impaired orientation, and loss of interest in one’s self-care are common to both dementia and depression and thus create difficulty in differential diagnosis. Nonetheless, there are several indicators that can help with the differentiation of dementia from “pseudodementia,” or depressioninduced cognitive impairment. For example, individuals with depression are more likely to be aware of their impaired cognition, with complaints of poor memory far exceeding actual memory deficits. By contrast, individuals with dementia are typically less aware of their cognitive deficits. The onset of cognitive impairment is also an important indicator. Cognitive deterioration from a dementing process typically has a slow and insidious onset, whereas cognitive impairment accompanying depression is more likely to develop over a period of a few weeks (Judd & Kunovac, 1998). Additionally, the quality of cognitive deficits is an important indicator. Individuals with depression-induced cognitive impairment will typically demonstrate intact incidental learning, evident through appropriate temporal orientation. Individuals with dementia are less likely to know the day of the week, the date, and the time of day (Jones, Tranel, & Benton, 1992). Finally, cognitive impairment induced by depressive symptoms is likely to remit following a trial of antidepressant medication, while no such remission is observed in individuals with cognitive impairment due to a dementing process (Judd & Kunovac, 1998). Similar to depressive symptoms, cognitive deficits, when compounded with anxiety, can affect recovery (Kizilbash, Vanderploeg, & Curtiss, 2002). Of particular importance is the presence of posttraumatic stress disorder (PTSD) following TBI (McMillan, Williams, & Bryant, 2003). Whether or not PTSD is an appropriate diagnosis in individuals who have lost consciousness or had an extended period of PTA has been a matter of debate. Some researchers stress that memory impairment naturally diminishes the traumatic reaction, which is necessary for a diagnosis of PTSD (Sbordone & Liter, 1995). It is clear, however, that patients with histories of brain injury often report increased anxiety subsequent to injury and do exhibit other symptoms of PTSD including increased arousal and avoidance (Williams & Evans, 2003; Williams, Evans, & Fleminger, 2003). Whenever there is a psychopathological component comorbid with a cognitive impairment, it is important for the clinician to assess for change from premorbid levels. Hilsabeck et al. (1998) demonstrated that patients with back and brain injuries estimated their functioning, prior to their injuries, as worse than controls, whereas patients without the back injuries, but with brain injuries, rated their current functioning as worse than any of the other groups. The emotional impact of neuropsychological deficits on caregivers, spouses, and families of patients should also be noted. Marsh, Kersel, Havill, and Sleigh (1998) found that caregivers of adults with TBI experienced greater distress when the patient exhibited elevated levels of anger, apathy, and dependency. Furthermore, they found that physical impairment, behavioral problems, and social isolation were the strongest predictors of caregiver burden. Appropriate recommendations should, therefore, not only address the existing psychiatric symptomatology of the patient but also address the patient’s caregivers. By doing so, the patient is more likely to continue receiving optimal treatment and their chances for successful recovery are enhanced.

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Social and Relational Problems A long-term population-based follow-up study of TBI outcome (Engberg & Teasdale, 2004) showed that one of the most important factors influencing long-term outcome was whether or not the patient was able to maintain relationships with friends and family at the premorbid level. Lewinshohn and Graf (1973) showed that personality and behavior changes in cases with TBI accounted for much more variance in a person’s functioning than did cognitive or memory losses. Brain damage is a family affair (Lezak, 1988), and changes to the operation of the family system can be assessed with instruments such as the Family Environment Scale (Moos & Moos, 1994). Because social isolation and decreased recreational activities are frequently observed in patients with TBI (Brown, Gordon, & Spielman, 2003) and such difficulties have been shown to slow the rehabilitation process and disrupt family functioning, Camplair, Bulter, and Lezak (2003) stressed that evaluations of patients with brain injury should also assess the family and caregiver environment. Further, they recommended that the assessment must examine disorders related to the injury, premorbid family relationships, preexisting resources of the family and caregiver, and other variables such as community and professional support and resources. The importance of rehabilitation is not limited to injured patients in isolation, but is also important for the well-being of spouses, caregivers, and families. Wood and Yurdakel (1997) showed that separation and divorce were more likely for patients with brain injury than for those without brain injury. Further, spouses and children within families that included a brain-injured patient were more likely to become depressed than those without (Uysal, Hibbard, Robillard, Pappadopulos, & Jaffe, 1998). In the Caregiver Health Effects Study, a prospective population-based cohort study Schulz and Beach (1999) found that mental or emotional strain associated with caregiving was an independent risk factor for caregiver mortality. Camplair, Bulter, and Lezak (2003) noted that optimal caregiver and family ­education goals should ensure that (a) the individual needs of those involved are considered, while tailoring the educational material to the rehabilitation phase of the patient, (b) the materials are presented according to the educational and literacy level of the caregivers, and in a language that is understandable, and (c) the caregivers are provided with community resources and referrals when needed.

Vocational Problems Vocational training is an integral part of the rehabilitation process of brain-injured patients. Despite the implementation of the Americans with Disabilities Act (ADA, 1990), patients with neurological disorders continue to experience difficulty in obtaining and maintaining gainful employment (Wehman, Targett, West, & Kregel, 2005). Loss of income, minimization of earning and advancement potential, and occupational downgrading are important factors that contribute to this problem. In addition, discrimination in the workplace against individuals with cognitive

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d­ isabilities occurs in a variety of job hiring contexts (Gouvier & Coon, 2002; Gouvier, Sytsma-Jordan, & Mayville, 2003). Discrimination, compounded with impairments resulting from injury, results in significant difficulties for patients with TBI. Dikmen, Machamer, Powell, and Temkin (2003) found that 30% of TBI patients were unable to work or attend school, and 10% of the patients with TBI who returned to work reported changes in their employment, such as pay reductions or changes in responsibilities. In a study of rehabilitation after serious brain injury, researchers demonstrated that only 61% of the participants were involved in some sort of work activity, with 21% paid for their work, and only 5% employed full-time. Age, as well as pre-injury productivity, education, and discharge performance, has been found to be useful in predicting vocational rehabilitation success (KeyserMarcus et al., 2002). In a review of practices for gaining and maintaining employment subsequent to TBI, Holzberg (2001) reported that the best practice is a combination of interventions that address both the strengths and weaknesses of the impaired individual.

Assessment of Damages The process in which damage assessments are made is extensive and includes determining premorbid levels of functioning, obtaining a neuropsychological profile of cognitive strengths and weaknesses, and planning and conducting cognitive rehabilitation. When determining impairment in cognitive abilities following an accident or injury, the clinician must go beyond comparing a performance to standardized norms, and must make an effort to determine the patient’s level of functioning prior to the injury. Numerous assessment measures are available to establish premorbid levels of functioning and are discussed earlier in this chapter. In addition, the clinician can gather information from the patient and collateral informants about the patient’s level of functioning prior to an injury. This information can be found through the examination of school records, household duties, work responsibilities, and medical history (Stebbens & Wilson, 1998). Establishing a pre-injury level of functioning is imperative in determining damages because it explains to the patient, clinician, and the court what was lost. Only in rare cases would a person with premorbidly low levels of functioning be awarded the same amount of damages as an individual with premorbidly high levels of functioning, even if they were functioning at the same level post-injury. It is only through determining the levels of functioning prior to an injury that a correct analysis of loss of functioning can be made. In addition to determining premorbid levels of functioning, the clinician should establish a baseline of cognitive functioning shortly following the injury. Ideally, the baseline is established as soon as the patient’s posttraumatic amnesia has remitted. Additionally, continued assessments should be conducted throughout the patient’s recovery process, regardless of the presence of rehabilitation interventions. Although cognitive rehabilitation is essential to allowing the patient to reach

RAVLT Rey-O CVLT-II BVRT

D2 CPT TMT

SB-V TONI RPM PPVT

NAART Barona Best 3

DRS MMSE Cognistat

Attention/ concentration LCT

Neuropsychological assessment measures Premorbid Intellectual functioning Mental status functioning Memory Shipley CCSE WAIS-III WMS-III WCST COWAT

Executive functioning HCT MAE BDAE BNT COWAT

Language AST UPSIT GST FTT GPT

Sensory/ motor SPE

Personality/ Emotional Specialty MMPI-2 Iowa Interview PAI IIPSLS SCID-I VABS ADIS ABS-RC:2 DS

TOMM MFIT WMT

Malingering PDRT

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his or her maximum level of improvement, a large portion of patients can expect to see some natural improvement in deficits up to 2 years following an injury (Gouvier, O’Jile, & Ryan, 1998). By conducting multiple assessments throughout a patient’s recovery process, the clinician allows for the quantification of changes. This can be done by comparing assessments throughout different levels of recovery. For example, if three assessments are conducted, one pre-injury, one immediately postinjury, and a third 1-year following an injury, a clinician can conclude that recovery has occurred if positive directional changes are observed from assessment two to three. Furthermore, a clinician could conclude that some detrimental neurological event had occurred if negative directional changes are observed between assessments one and two. Throughout the patient’s recovery process, cognitive rehabilitation strategies should be in place to assist the patient in reaching his or her maximum level of improvement. Underpinnings involved in cognitive rehabilitation include identifying a problematic area, putting supports and interventions in place for the behavior, and determining whether the intervention is successful in improving the problem. Once the problem has been successfully treated and maintained, the clinician moves on to the next problematic area (Gouvier, O’Jile, & Ryan, 1998). The forensic examiner must be aware of this patient management and provide information regarding the extent, the effort, and the usefulness of these rehabilitation strategies, when quantifying assessment damages. In summary, when translating neuropsychological deficits into damages, the clinician must extrapolate from test deficits to ecologically relevant life activities. Estimates are then generated based on the level of support necessary to restore the patient to the greatest level of functional independence and autonomy possible. This process sometime involves iterative steps as the patient passes through phases of recovery with spurts of improvement followed by relative plateaus. The steps involve the gradual transition from acute medical care, through rehabilitation treatments, and on to eventual referral for possible vocational rehabilitation (VR) or if VR is unrealistic, application for disability benefits and counseling activities directed toward adapting to newly changed life roles and the search for meaning in a dramatically fractured and disrupted life path.

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Part IV

Professional Issues

Chapter 15

Training of Trial Consultants Veronica Stinson and Brian L. Cutler

Overview of Trial Consulting Services Although trial consulting can be traced back to scientific jury selection attempts by social scientists in the 1960s, the list of services now provided by trial consultants has grown dramatically. In this chapter we provide an overview of the types of services that trial consultants tend to provide and identify paths for obtaining the competencies to provide these services.1 Note that although some consultants make a clear distinction between trial and jury consulting services, we will use the terms interchangeably. In order to obtain a representative sample of services provided by trial consultants, we reviewed numerous profiles of members of the American Society for Trial Consultants (ASTC).2 These profiles were accessed via ASTC’s web site in November of 2004. Table  15.1 provides a list of unique services offered by trial consultants. This list of services is not exhaustive but rather representative of the common services offered. Services that seemed unique to individual consultants and services that are better captured by other recognized professions (e.g., expert testimony, psychological assessment) were excluded. Thus, the list depicts the range of services including common and infrequent services provided by trial consultants.

We acknowledge the generous assistance provided by Dan Wolfe and Keri Weber Sikich of Trial Graphix for their help with the online survey of ASTC members. We also thank Charli Morris and Julie Howe for their suggestions to the manuscript. Finally, a number of trial consultants shared their valuable time with us during sometimes-lengthy interviews; we thank them for their insight and time. 2  Of course not all trial consultants are members of ASTC and not all members of ASTC consider themselves trial consultants. Although we have no way of knowing the degree to which ASTC members are representative of the population of trial consultants, we do know that membership is substantial in number (over 500 members) and in diversity, representing sole practitioners, firms of various sizes as well as academics and other professionals providing services to attorneys part-time. 1

V. Stinson (*) Department of Psychology, Saint Mary’s University, Halifax, Nova Scotia, B3H 3C3, Canada e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_15, © Springer Science+Business Media, LLC 2011

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V. Stinson and B.L. Cutler Table 15.1  Sample American Society of Trial Consultants (ASTC) member services Services themes Range of services Attorney coaching and trial strategizing Advocacy skills training Attorney trial preparation Case assessment Case theory and presentation Communication training Continuing legal education Damages strategies Demonstrative evidence Interviewing strategies Language and Law Legal argumentation Media relations Negotiations Opening statements/closing arguments Trial themes Trial strategy Witness coaching

Expert preparation Witness preparation

Jury-related services

Change of venue surveys Community attitude surveys Courtroom observation Focus groups Jury analysis throughout trial Juror questionnaires Jury reconvening Jury selection Mock arbitration trials Mock bench trials Mock hearings Mock trials Posttrial juror interviews Shadow Jury Trial simulations

Technology issues

Graphics design and presentation Technology consulting Internet research on jurors A/V services

The range of services offered is impressive. Services tend to cluster around four themes: attorney consultation and trial strategizing, witness preparation, juryrelated services, and technology-related services. The first theme, attorney consultation and trial strategizing, does not involve empirical research per se but rather some combination of training attorneys in specific skills (e.g., argumentation, negotiation, language use) and working on the attorney’s team to develop effective trial strategies (e.g., developing trial themes, opening statements, demonstrative evidence, and strategies for arguing damages). For example, a consultant working on

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a case involving a complex contract dispute might work with the trial team to create an effective analogy for the issues. Language conveying that “you must first divorce your wife before you marry someone else” might be an effective vehicle for advancing a client’s view of the contract dispute, evidence, etc. The second theme is “witness preparation,” that is, working with the attorneys to prepare lay and expert witnesses for trial. The consultant would work with lay and expert witnesses to orient and familiarize them with the court process and help them articulate their testimony in a compelling and effective way via rehearsal sessions. For the complex contract dispute example mentioned above, the consultant might work with the witnesses to help them convey elements of the case that correspond with the divorce–marriage theme embraced by the trial team. Table 15.1 labels the third cluster as “jury-related services.” These services rely heavily (though not exclusively) on behavioral science research methods. For example, consultants might use survey research to test the extent to which venire persons in communities are prejudiced by pretrial publicity. Community attitude survey data can measure the public’s reactions to various aspects of a case, and the consultants can use that information to develop juror profiles to aid in trial strategy and jury selection. These services also use variations of trial simulation methods and small group research methods to assess mock juror and mock jury reactions to case presentations. For example, researchers can use focus groups and mock trials to present part of or the entire case to groups of community members, and they can record participants’ reactions via questionnaires (or real-time response devices) and observation of deliberations. When the trial judge has not ruled on crucial motions in limine (requests to exclude evidence from trial) the researcher could even test reactions to different versions of a case depending on (for example) whether the evidence is admitted or not. The notion of a mock trial can also be applied to mock bench trials, mock hearings, and mock arbitration trials. For these services, rather than focusing on the reactions of laypersons, the researcher studies the reaction of an individual serving as a judge or arbitrator (typically an off-duty judge or arbitrator who agrees to participate in the research). Behavioral observation methods can also be used to assess actual jurors’ reactions during the trial; some consultants assess jurors’ behaviors during trial, including note-taking, nonverbal behavior, interpersonal relationships that develop over the course of the trial (particularly for lengthy trials), and so forth. One variation of this method is to employ a shadow jury – a group of community members who observe the trial together with the jury. The consultant measures the reactions of shadow jurors through daily questionnaires and interviews. Finally, consultants can gather information about actual jurors’ reactions to the case via interpersonal and group interview methods after the conclusion of the trial. These interviews are usually conducted by phone, but in some cases the actual jury can be reconvened and interviewed or even asked to replay their deliberations under the observation of the research team. If we revisit the contract dispute illustration, the consultant could measure community attitudes regarding corporate parties or case-specific issues, particularly if the issues or outcomes affect the community or if there has been considerable media coverage of the litigation. Mock jury research could measure surrogate jurors’ reactions to the ­marriage–divorce analogy and assess the extent to which

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mock jurors use that analogy in their deliberations of the case. Posttrial juror interviews could measure the extent to which jurors understood the complexity of the contract dispute, how jurors arrived at their own verdict, and how they convinced each other to adopt a particular perspective on the case. Another common jury-related service, assistance with in-court jury selection, can also draw upon behavioral research methods. For example, survey methods can be used to develop profiles of desirable and undesirable jurors in a given case. Results of mock jury research could be used to identify general characteristics (including attitudes or experiences) that predict verdict. Psychometric methods can be used to develop reliable and valid questions for a jury selection questionnaire or to ask in court. A consultant can draw upon a substantial literature on jury decision-making, interview methods, and communication skills to aid the attorney in developing a comprehensive voir dire strategy. Some consultants provide advice about the desirability or undesirability of the venire persons as an aid to jury selection. Their advice might be grounded in social science research, experience, or intuition. For instance, the jury questionnaire for the contract case mentioned above might measure venire persons’ comfort with ambiguity and uncertainty as opposed to their preferences for predictability and stability; it might also include items of the number (and times) that jurors have been married. The final cluster is described as technology-related issues. For example, audiovisual services are used to support behavioral research methods, such as providing closed-circuit observation of a focus group or mock jury. Graphics design and presentation services are used to create demonstrative evidence such as posters, charts, displays, photographs, models, day-in-the-life videos, videotaped reconstructions of accidents, etc. One recent addition to this menu of services includes the use of the internet, particularly internet social networking sites such as Facebook and MySpace, to gather information about jurors (Kay, 2008). In conclusion, the range of services offered by trial consultants is quite broad. What is the range of services offered by individual trial consultants? Although no consultant listed all of these services on his or her profile, many consultants listed a set of related services. For example, Allan Campo and Stuart Simon of American Jury Centers offer the following services: jury research, demonstrative evidence consultation, preparation of witnesses, development of case themes, evaluation of cases, and assistance at trial (e.g., jury selection). Matt Milano, of Jury Focus Inc., offers a similar slate of services. Katherine James and Alan Blumenfield, of Act of Communication, tend to focus primarily on witness preparation and narrative story telling for opening and closing arguments, though they do offer other services. In general, jury-related services tend to cluster together. A trial consultant who conducts focus groups and trial simulations typically can assist with jury selection and conduct post-trial interviews. Some consultants work within a larger firm that offers technology-related support (including, for example, document management services and courtroom presentation services). In summary, the range of services that trial consultants provide is quite broad, requiring specialized and sometimes technical skills.

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Education or Training: A Survey of Trial Consultants What educational background and skills are needed to perform the services as described in Table 15.1? To obtain a better understanding of the knowledge, skills, and abilities that are needed to succeed in this profession, we surveyed trial consultants between April and June of 2005. We conducted both in-depth interviews with nine trial consultants (a convenience sample) and a web-based survey of members of the American Society of Trial Consultants (ASTC), the primary professional organization of this field. Since the results of the interviews overlap substantially with the results of the web-based survey, the results we present below reflect primarily those of the web-based survey unless noted otherwise. The overwhelming majority of the 58 web-survey respondents (out of 529 ASTC members) were White (94%) and female (60%). Mean age of respondents was 42 (SD = 12). Trial consultants who took part in our survey were well-educated and generally successful. The vast majority (80%) had postgraduate degrees; 17 had master’s degrees, 23 had doctorate degrees, and 3 had both doctorate and law degrees. Respondents’ fields of study varied greatly; fine arts, social work, theatre, communication, psychology, political science, and sociology were among the academic backgrounds listed. However, the most common fields of study were psychology (particularly social, clinical, and forensic) and communication. Seventy-six percent of the sample reported their 2004 annual income. Of this smaller group, approximately 30% reported earning over $100,000 per year, and 26% reported earning $75–99,000 per year; trial consulting work constituted over 95% of these annual reported income figures for the vast majority of respondents. Twenty-one professionals were employed by consulting firms, 21 were owners or partners in consulting firms, and 9 were independent consultants. Most trial consultants who responded to our survey told us that they got their start in the field by working for a trial consulting firm, but 20% indicated that they got their start by opening their own consulting firm alone or with a partner. Respondents had been working as trial consultants for an average of 10 years (range 4 months to 32 years). Most indicated that they would continue in this profession for a number of years (as long as there was work), or, as one person responded, “until they carry me out feet first.”

Education We also asked respondents to rate the usefulness of various educational degrees for preparing students for trial consultation. There were four degrees/areas that trial consultants endorsed as most useful (in parentheses are the percentages of respondents who rated the degree as useful or very useful): Ph.D. in Psychology and Law (89%), Social Psychology (76%), Communication (73%), and Cognitive Psychology (62%). The greatest variability in responses occurred with the Ph.D. in Clinical Psychology, perhaps because the strengths of many clinical programs are in client

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relations and in therapeutic techniques (which consultants trained in this area indicated are quite ­helpful during witness preparation, for example). Despite these valuable strengths, many doctoral programs in clinical psychology do not incorporate rigorous training in social psychology research methodology or in legal issues. The J.D. degree also elicited mixed responses; as discussed later, law school provides no foundation in psychology research methodology or theory. There was more consensus around terminal Bachelor degrees in Psychology, Sociology, Communication, and Marketing, all of which were rated as not useful. Respondents were very clear in their opinions that for successful careers in trial consultation: a doctoral degree in the social sciences is essential. We raise two final points with respect to these findings. First, we were not particularly surprised by the convergence of opinions on the value of a doctoral degree in the social sciences. As discussed in a subsequent section, the decision to hire a trial consultant must usually be justified to other parties (e.g., clients, insurers, etc.); it is best when those parties recognize the value and unique contributions of a professional. A doctoral degree in the social sciences brings natural credibility to the trial consultant; the degree conveys to clients that trial consultants have expertise and skills that merit their participation in the trial team. Secondly, we remind readers that as with all self-report data, one must be cautious about deriving conclusions from these findings. Some of the respondents might hold these degrees, so the value they place on their chosen educational path may be higher than other paths.

Acquired Skills We asked respondents to tell us the most valuable skills they acquired from formal education or training. The responses reflect not only skills but also knowledge that is presumably valuable for trial consultants. Table  15.2 displays the results. Respondents found methodological and statistical skills useful but they also recognized the value that both critical thinking and communication (oral and written) skills have for those working in this high-stakes industry. Additionally, many people indicated that the knowledge of social and cognitive psychology they obtained through formal education benefited them significantly in their work. What were the most valuable skills trial consultants acquired on the job? As summarized in Table 15.3, the most popular responses tended to cluster around five domains. Most respondents repeatedly identified skills surrounding client management as a valuable skill. Communicating with attorneys, understanding client needs, and managing the politics often present in complex civil litigation (e.g., insured vs. insurer vs. excess carrier) all comprised this domain. Almost as frequently, respondents pointed to knowledge of law, legal procedure, and trial strategy as learned on the job. Third, respondents identified sales, marketing, and business development as skills that they developed on the job. As discussed previously, most trial consultants who took part in this survey had educations grounded in the social sciences, so it is not surprising that they acquired lawrelated knowledge and business skills on the job. We do not know whether this

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Table 15.2  Valuable skills and knowledge that trial consultants acquired from formal education or training Skills and knowledge No. responses Research methods, including survey development and interviewing 24 Critical/analytical thinking 14 Writing 14 Statistics 13 Social psychology, including small group dynamics, interpersonal dynamics, 12 persuasion, jury research Communication, linguistics 6 General psychology 4 Decision-making, cognitive theory 4 Organizational skills 4 Presentation/public speaking skills 3 Law 3 Teaching skills 3 Working in groups 2 Working fast/time management 2 Reading/analyzing people 2 Marketing 1 Graphic design 1 Management skills 1 Counseling skills 1 Note. Most respondents provided multiple responses for this question Table 15.3  Valuable skills and knowledge that trial consultants acquired on the job Skills and knowledge No. responses Client issues 16 Law and trial strategy 15 Marketing, sales, and business development 8 Best practices for providing trial consultant services 7 Applying and reporting research findings 6 Communication/public speaking skills 3 Interpersonal skills and listening skills 3 Supervision and management of staff 2 Graphics 2 Multitasking, time management 2 Software and technology 2 Miscellaneous (e.g., organizational culture, qualitative statistics) 3 Note. Most respondents provided multiple responses for this question

on-the-job ­learning is adequate, sufficient, or objective. Knowledge and skills acquired on the job probably depend on the range and type of cases with which the consultant has experience. For instance, the knowledge of law, legal procedure, and trial strategy obtained on the job by a trial consultant who works exclusively on criminal cases is probably quite different from that of a trial consultant whose on-the-job experiences involve working for civil cases focusing on medical malpractice cases.

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Fourth, consultants identified skills dealing with practice issues; examples of these include the logistics of conducting mock jury research, how to help prepare an expert for a deposition or in-court testimony, how to run focus groups and mock trials, and how to conduct posttrial interviews. Finally, applying and providing research findings to clients also emerged as valuable skills. Respondents pointed to the importance of being able to make recommendations and add value to reports beyond simply reporting on the results of the research. In summary, it appears that the competencies that trial consultants acquire through formal educational channels and those that they attain on the job are largely independent sets of skills We also invited trial consultants to tell us what they think it takes to be a ­successful trial consultant. This request generated a flurry of diverse responses, which are summarized in Table 15.4. We categorized the responses into two loose Table 15.4  Opinions of what it take to be a good trial consultant Factors Specific components and number of responses Interpersonal skills, diplomacy, “people skills” (14) Knowledge and skills Interviewing/communication skills (oral and written) (13) Listening skills (6) Knowledge or background in law (6) Marketing savvy, contacts, business development skills (6) Relevant knowledge (e.g., research methods, jury decision-making, etc.) (5) Organizational skills, time management (5) Ability to synthesize information (4) Intelligence, quick learner, quick thinker (3) Technical skills (2) Critical thinking/analysis (2) “People-reading” skills (1) General counseling skills (1) Tolerance for high pressure and high stress (3) Willingness to be wrong, humility (2) Independent thinker and worker (2) Patience (2) Flexibility (2) Detail-orientation (2) Intuition (2) Creativity (1) Hard worker/endurance (1) Entrepreneurial nature (1) Voracious reader (1) Self-starter (1) Sense of humor (1) Assertiveness (1) “Thick skin” (1) Tolerance for ambiguity (1) Natural teacher (1) Fearlessness (1) Desire to help clients (1) Note. Most respondents provided multiple responses for this question Personality/ dispositional traits

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categories consisting of knowledge or skill-related factors (e.g., interpersonal skills) and dispositional factors such as stress tolerance, assertiveness, flexibility, and attention to detail. Several seasoned consultants whom we interviewed emphasized the importance of being able to cope with the stress of travel, an aspect of the job that rarely emerged in the web-survey results. Furthermore, considering the fact that cases often involve human tragedies, one person we interviewed suggested that good mental health is important because it should serve as a buffer against depression that can emerge from routinely dealing with tragic cases. We also asked trial consultants to consider various skills (e.g., general business administration, marketing/sales, writing) and rate their importance for achieving success as a trial consultant using a five-point rating scale (1 = not at all important, 5 = very important). Overall, respondents indicated that the following skills and abilities were important or very important for success in this industry: marketing, sales, research methods, data analysis, written and oral communication, interpersonal skills, conflict management, diplomacy, multitasking, and organizational skills. There was somewhat less agreement on the extent to which general business skills were essential for success. In summary, consultants believe that many factors contribute to excellence or success in this profession. The large number of factors corresponds to the variety of services that many consultants provide, the diverse nature of the demands placed on these professionals, and the challenging world of business and law.

So You Want to Be a Trial Consultant? If you are a student considering a career as a consultant, we recommend that you first determine if this career and its accompanying lifestyle are for you (see Kludt Andrews, 2005). Shadowing a trial consultant for a few days, assisting consultants on a project basis, and/or obtaining an internship will provide you with valuable insight. However, it is important to keep in mind that the confidential nature of the work often precludes these options. Consider calling and interviewing a trial consultant about his or her occupation. Attending the annual convention of the American Association of Trial Consultants provides numerous opportunities to gain useful information and make valuable contacts with people in the industry. The conference is typically held in the beginning of June and usually includes an introductory workshop, “Trial Consulting 101” and a “Job Fair” (see www.astcweb.org for more information about the association and its convention). Second, consider the educational and training paths for this field. The paths depend on the specific cluster of services to be performed and the degree of responsibility for performing them. For instance, jury-related research services rely heavily on social science research methods, such as surveys, questionnaire development, focus groups, and simulations. These services also involve data analysis, both quantitative and qualitative. To be prepared, responsible, and accountable for

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conducting these services, we recommend doctoral training in Psychology, Communication Studies, or Sociology. Through doctoral level coursework and through supervised application of research, these topics are often, although not always, part of the graduate curriculum. To serve as an assistant or associate to a consultant – the equivalent of a research assistant – we recommend master’s level training in one of the aforementioned social sciences. Most master’s programs typically require one or two semesters of coursework in research design and analysis and also require hands-on research experience through the master’s thesis. Such training should qualify a student to play a substantial role in assisting with the implementation of research plans and the analysis of quantitative and qualitative data. This graduate training should also help students “work their way up” to a more senior level position over time. The training required for witness preparation services is much less clear. If the goal of this service is to improve witness communication skills, then a solid working knowledge of effective communication skills is desirable. Such knowledge can be obtained through graduate work in communication studies. To the extent that witness preparation involves assisting the witness to offer persuasive, compelling, or even dramatic presentation, graduate training in rhetoric or theatre can be beneficial. If witness preparation involves helping witnesses reduce anxiety, then a counselling or clinical psychology background should be helpful. Lay witnesses typically have little or no prior experience with the justice system. They may lack an understanding of the purpose of hearings or trials or the role they are supposed to play in the process. Normally, trial lawyers educate lay or expert witnesses about court proceedings, but a consultant should be knowledgeable about these legal procedures as well. In conclusion, witness preparation services can have various purposes and therefore can be performed effectively by professionals with diverse backgrounds. A clinical psychologist might be very effective at helping a witness cope with high levels of anxiety concerning the process. A communication expert could assist a witness with his or her use of language and accent reduction. A consultant with a background in theatre could assist a witness to convey his or her story in a passionate, compelling, and memorable manner. A consultant trained in law or legal procedure can educate the witness about the proceedings. Given that empirical research skills are not salient for witness preparation, doctoral level training may not be necessary, but master’s level training in one of the aforementioned areas would indeed be essential. Attorney consultation and trial strategizing also requires unique skills. Identifi­ cation of trial themes that will appear compelling to jurors, the development of opening statements and closing arguments, and the development of effective strategies for arguing damages require insight regarding how jurors process trial information, make decisions, and approach deliberation. Perhaps the best training for this is immersion into the research on jury decision-making and jury behavior. Most of the research on jury decision-making is produced by social psychologists. Social psychology encompasses such topics of study as interpersonal, intragroup, and intergroup influences, social cognition, communication, and persuasion, all of which are relevant to understanding the dynamics and outcomes of jury trials, and all of which have been studied within the context of jury behavior (e.g., see Borgida & Fiske, 2008; Bornstein,

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Wiener, Schopp, & Willborn, 2008; Lieberman & Sales, 2007; Posey & Wrightsman, 2005; Wrightsman, Kassin, & Willis, 1987). The ­attorney already brings legal experience to the table. The consultant can bring to the table the scientific perspective on jury behavior and, eventually, his or her experiences with jurors. Although the consultant serves as an advisor to the attorney in all clusters of trial consulting services, advice relating to juries is often the most valuable for attorneys. The consultant must bring some highly specialized knowledge to the table in order to compete with the attorney’s expertise or trial experience. This specialized knowledge can come from the academic research on social influence in general and jury behavior in particular. It can also come from extensive trial consulting experience. Indeed, given that many attorneys spend relatively little time in front of juries, it is not uncommon to for the consultants to have more trial experience than attorneys, some of whom try only a few cases in the course of their careers. An alternative path to developing the expertise needed for coaching attorneys and trial strategizing is gaining extensive experience as a litigator. In the same way that senior litigators mentor junior litigators, an experienced, successful litigator might enjoy a prosperous second career as a trial consultant, particularly in the area of attorney coaching and trial strategizing. For instance, Anne Reed is a lawyer who turned to jury consulting and now provides litigation consulting services out of a large Wisconsin law firm. Last, some consultants’ work is limited to trial graphics, and many of the larger firms include trial graphics as part of their professional repertoires. The amount of graphic art experience needed depends upon the amount of “hands-on” work to be done. To help design and create demonstrative evidence, demonstrations, models, video productions, etc., training in the specific technologies is needed. Bachelors or master’s level training should be sufficient. We make a few final notes about the education needed to provide trial consulting services. Everyone considering employment in this field should obtain a working understanding of substantive and procedural matters of the law. Although formal coursework or independent reading can help provide this necessary background, a good working knowledge of trial procedures also comes from observing actual trials from beginning to end. Although attorneys will inform trial consultants of the particular legal issues surrounding their cases, attorney clients typically expect the trial consultants on their teams to be fluent in general procedure. Some professionals we interviewed did not believe that consultants with doctoral training were better equipped to work in the field than those with master’s level training. The content of the training (e.g., trial procedures, research methodology and statistics, small group dynamics) was considered to be more important. However, those aspiring to work in this field should carefully consider doctoral level training. Aside from providing additional research and writing skills, doctoral training may be a vehicle for providing some “legitimacy” to the consultant in some circumstances. Typically (although not always), clients seek the services of trial consultants because they have special expertise or skills that attorneys do not have (or have less of). Having a doctoral degree can help a trial consultant convey this point. Additionally, doctoral level training adds a level of prestige or legitimacy to the consultant and may therefore help attorney clients justify the trial consultant’s fees to their clients.

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Finally, note that our suggestions regarding the training and educational paths for this profession reflect our orientation as well as generally that of the professionals surveyed and interviewed. However, a small number of consultants’ backgrounds were not in the social sciences, and they did not have graduate training. Nevertheless, they indicated that they built successful businesses by providing many of the services we described above. These consultants argued that their clients value what they bring to the table and that repeat business speaks for itself. They make a valid point, but we believe that attorney clients are becoming increasingly sophisticated about the services trial consultants provide. Some consultants routinely find themselves being carefully scrutinized by savvy attorneys about research methodology, statistical results, and so forth. Having had that experience ourselves, we believe that rigorous training in social sciences – at a master’s level, and especially at a doctoral level – should provide consultants not only with the skills they need to provide excellent services and consultation but also with the knowledge and background necessary to provide cogent responses to such inquiry.

Available Educational Opportunities We attempted a thorough search of graduate degree programs that are able and willing to educate graduate students for careers in trial consulting. This search involved a review of the programs advertised by the American Psychology-Law Society and personal networking with members of the ASTC. The first observation we report is perhaps the most striking. At the time of this writing, there is no graduate program with the exclusive aim of training trial consultants. Despite growth and maturation in the field of trial consulting, there is no easily identifiable training program or even path. An individual who aspires to join the medical profession can easily identify medical schools. An individual who wishes to become a lawyer can apply to one of hundreds of law schools. Clinical psychologists begin their careers in readily identifiable APA accredited clinical psychology doctoral programs. Trial consultants, by contrast, have no such common course of education, in part because this is an unregulated field. Anyone can call him or herself a trial consultant. The debate over formal credentialing can be appreciated by examining the perspectives that Strier (2001) and Moran (2001) raise. At the time of this writing, no credentials are required, although ASTC has a professional code. Although the educational backgrounds of current trial consultants is diverse, review of consultant profiles, correspondence with consultants, and review of existing educational programs revealed a core set of related graduate programs that have either trained graduate students who went on to become trial consultants, have demonstrated interest and ability to train graduate students as trial consultants, or both. These programs, listed in Table  15.5, include master’s programs and doctoral programs in Psychology and Communication. A brief description of each program follows.

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Table 15.5  Sample ASTC Member Services as of November 25, 2004 Master’s programs John Jay College of Criminal Justice, CUNY (Forensic Psychology) Doctoral programs Florida International University (Ph.D., Legal) John Jay College of Criminal Justice, CUNY (Ph.D., Experimental Forensic) Kansas University (Ph.D., Communication) University of Illinois at Chicago (Ph.D., Social) University of Nebraska (Ph.D., Social) University of Nevada, Reno (Ph.D., Social) University of Texas at El Paso (Ph.D., Legal Psychology) University of Wyoming (Ph.D., Experimental) Simon Fraser University (Ph.D., Law and Forensic Psychology) University of Nebraska (Ph.D./J.D., Ph.D./M.L.S.) Joint degree programs Florida International University (M.S./J.D) Simon Fraser University (Ph.D., LL.B., in conjunction with the University of British Columbia)

John Jay College of Criminal Justice (JJCCJ) JJCCJ, City University of New York, has a long-standing tradition of educating students at the bachelor’s, master’s and doctoral levels in Criminal Justice and the Forensic Sciences. Their Department of Psychology has also offered a master’s degree in Forensic Psychology. More recently, however, the Department of Psychology established doctoral programs in Forensic Clinical and Forensic Experimental Psychology. The programs that would be of most interest to students embarking on careers as trial consultants would be the master’s program in Forensic Psychology and the doctoral program in Forensic Psychology (Experimental). John Jay College has significant faculty strengths in research methods and jury research. The current faculty, some of whom were hired from other Psychology-Law doctoral programs, has significant trial consulting experience and a record of training graduate students who became trial consultants.

Kansas University Kansas University has a nationally recognized doctoral program in Communication Studies. Among the courses in this program is Legal Communication. According the program web page, “legal communication involves the study of communication as it occurs in the legal setting, whether district, state or federal, and whether civil or criminal. It concerns exploring message variables, argument strategies, juror perception and response, and the research done on those variables.” The faculty has included a member of the ASTC Board of Directors, and graduates of the program include several trial consultants.

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Florida International University FIU’s doctoral program in legal psychology is viewed particularly positively by the authors, as the first author was a founding faculty member in this program and the second author a graduate! This program boasts considerable faculty strength in Psychology-Law research (from either Social or Cognitive Psychological perspectives), jury decision-making research, and solid training in research skills. Several graduate students have had internships and jobs with local trial consultants while in graduate school at FIU, and several have become trial consultants or university professors with side work in trial consulting. A dual M.S. /J.D. degree program now forms part of FIU’s suite of graduate programs.

University of Illinois at Chicago The University of Illinois at Chicago offers a doctoral program in Psychology. Each student in the doctoral program must satisfy the requirements of one of five divisions, one of which is Social/Personality Psychology. Each student must also complete a minor. One of the minors available to students is Psychology and Law. The department has several faculty members within the department and several in cognate departments who conduct Psychology-Law or related research, including research on juries. Several graduates of the program are now working as trial consultants.

University of Nebraska-Lincoln University of Nebraska began the first graduate program in Psychology and Law in 1974. The Department boasts a large number of Psychology-Law faculty, several of whom conduct research on topics directly associated with trial consulting, including the Coeditors of this volume. The program offers two tracks: Clinical and Experimental; the latter would be recommended for those interested in trial consulting. The program also offers a joint Ph.D. – J.D. program for students who wish to simultaneously pursue degrees in Psychology and Law and a Ph.D. – M.L.S. for those who wish to have a stronger understanding of the legal system but do not wish to practice law. The program has graduated several students who became trial consultants, including one of the past Presidents of ASTC.

University of Nevada-Reno The University of Nevada-Reno offers an interdisciplinary doctoral program in Social Psychology. The program has a strong legal focus, with participating faculty

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from Psychology, Criminal Justice, and other social sciences. The program also enjoys links with the campus’ Grant Sawyer Center for Justice Studies and two judicial education centers. Some faculty members involved in the program may well be considered trial consultants themselves as they often conduct research related to change of venue surveys and testify as expert witnesses.

University of Texas at El Paso The University of Texas at El Paso has a doctoral program in Psychology and Law and has several faculty members with backgrounds in social, cognitive, and clinical psychology who conduct research issues, including jury behavior. The program has had several students who have been involved in trial consulting, and the faculty members encourage students to consider such applied career opportunities.

University of Wyoming The University of Wyoming offers a doctoral program in Experimental Psychology with a concentration in Psychology and Law. The program has several faculty members who conduct Psychology and Law research, including research on juries.

Simon Fraser University Located in British Columbia, Canada, SFU’s doctoral program in Law and Forensic Psychology has an Experimental Psychology and Law Stream that emphasizes research skills and policy issues. At least one faculty member affiliated with that program conducts research on jury decision-making. SFU’s collaboration with the law school at the University of British Columbia allows it to offer a Ph.D./LL.B dual degree as well.

Continuing Education Programs For those who already have relevant graduate training but wish to get some specific training in trial consulting skills, some continuing education programs are available. For example, the ASTC sponsors workshops and presentations as part of its annual conference. Workshop topics have included the “nuts and bolts” of trial consulting, qualitative data analysis, witness preparation, shadow juries, jury debriefing, persuasion skills, and the business side of trial consulting. Tapes and CDs of presentations from previous conferences can be purchased from the ASTC web site. The American Academy of Forensic Psychology occasionally offers a continuing

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p­ rofessional education workshop on jury selection. There are also many books and articles to be read on trial consulting and individual services (e.g., focus groups).

Job Opportunities Another way to assess training needs for trial consulting is to examine the qualifications required to obtain an advertised position in trial consulting. We took a snapshots of the positions advertised on the ASTC web page in November of 2004. The results (minus the few ads for graphic artists) are summarized in Table 15.6. In all,

Table 15.6  Summary of ASTC Web Job Announcements, November 1, 2004 Degree Academic Experience # Title required fields required Travel requirements 1 Trial consultant Ph.D. P S C RF 2 years Willingness to travel is mandatory 2 Research coordinator 2–3 day trips averaging 2.5 times per month 3 Experienced trial Graduate L SS RF 4 years consultant 4 Senior litigation Ph.D. P S C SS 5 years Significant consultant 5 Litigation consultant M.A. P S C SS 2 years Significant 6 Litigation consultant Advanced C SS 7 Litigation consultant Advanced P C SS 5 years 8 Research associate M.A. SS 3–5 years 9 Jury consultant 10 Associate trial M.A. Some Willingness to travel consultant essential 11 Trial consultant Graduate 4 years 12 Associate litigation M.A. PCS consultant Ph.D. P C S SS Willingness to travel is 13 Associate litigation consultant mandatory 14 Research associate M.A. SS 15 Senior trial consultant Graduate SS 3 years Some travel is required 16 Trial consultant Must be willing to travel 17 Associate trial Ph.D. P C S SS Willingness to travel is consultant mandatory 18 Trial consultant Ph.D. P RF Ability to travel 19 Senior trial consultant Ph.D. SS 5+ years Travel can be extensive and flexibility is a must 20 Senior trial consultant Ph.D. P C S SS 5 years Willingness to travel is mandatory 21 Trial consultant Graduate SS Notes. Academic field: P psychology; C communication; S sociology; SS social Science; L law; RF related field

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there were 21 advertisements for positions such as Associate Trial Consultant, Research Associate, Trial Consultant, Jury Consultant, and Senior Litigation Consultant. What do we learn from these data? First, established firms hire a range of positions, including master’s and doctoral level consultants. We strongly suspect that many trial consulting firms hire bachelor’s level research assistants as well, but these positions are advertised through other sources. Some positions at the master’s and doctoral levels are entry level, with little or no experience required. These firms are searching for individuals who have basic research skills. On-the-job training is undoubtedly a feature of every position with an established firm. Experienced consultants also have options of moving from one firm to another. There are several other common features of these advertisements. First, the degree preference is strong for the social sciences. Psychology, Sociology, and Communication are almost always listed together along with Social Sciences or Related Field. It is also noteworthy that training in Law is not a preferred academic field. Only one (#3) of the twenty one advertisements listed a Law degree as a preferred academic field (together with Social Science and Related Field). This finding supports the notion that social science research methods are the key feature of training for trial consultants. Second, as summarized in the fifth column of Table 15.3, there are significant travel requirements; 12 of the 21 one positions listed travel as a job requirement. One position was quite specific, requiring 2–3 day trips averaging 2.5 times per month, or about one quarter of the time (given a 5-day working week). Although the advertisements provide some interesting data for understanding the training required for trial consultants, their interpretation requires several important caveats. First, the ASTC web page is only one source of job advertisements. Trial consulting positions are advertised elsewhere (e.g., the APA Monitor and the AP-LS website), and we have no basis for concluding that the ASTC web page advertisements are a representative sample. For that matter, we also do not know the extent to which the November 2004 advertisements are representative of the advertisements that appear on their page in a given year. Second, job advertisements do not always list the complete set of qualifications. For example, we interpreted the absence of years of experience in the advertisement to mean that experience was not required. This assumption might be incorrect. Third, although some firms list a wide range of qualifications, they may have preferences that are not stated in the advertisement. For example, a firm that lists graduate degree required may prefer to hire a candidate with a doctorate degree over one with a master’s degree. Many firms list Psychology, Sociology, Communication, and Social Science as applicable training backgrounds but may actually prefer one area of training over another. Fourth, and perhaps most important, getting a job with an established firm is just one way of beginning a career as a trial consultant. Many consultants began their careers by starting their own firms or by hanging out a shingle as an independent consultant. Under this scenario, the qualifications listed in the advertisements are relevant but not exhaustive. To be successful, an independent practitioner or firm owner must have additional skills, such as sales, marketing, and business acumen.

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One final note is in order. We took another look at this advertising source in the Spring of 2009 and determined that there were no jobs advertised. A search through several online employment search sites revealed two positions advertised for BA or BS level consultants. We do not know whether the decrease in advertised positions is linked to the economic challenges of 2009, the presence of other advertising venues, a combination of these factors, or other factors. However, our sense is that trial consulting will continue to remain a viable profession and that the future of this field remains promising.

Summary and Conclusions Our look at what trial consultants actually do uncovered a remarkable assortment of services provided to clients. Our survey of trial consultants and our in-depth interviews with a number of professionals revealed a diverse array of knowledge, skills, and abilities necessary for success as well diverse educational and training paths. Methodological and data analytic skills, critical thinking, communication skills (oral and written), knowledge of the relevant social-cognitive literature (e.g., persuasion, small-group dynamics, decision-making), and familiarity with legal procedures appear to be some of the essential tools needed to thrive in this industry. A doctoral degree in the social sciences (e.g., Legal Psychology, Social Psychology, and Communication) seems to prepare students well for careers in this area. However, these training paths do suffer from some limitations. Many trial consultants indicated that programs in traditional disciplines such as psychology or communication tend to exclude important “tools” that trial consultants need (such as courses in trial procedure). Although not specifically mentioned by our respondents, some training in conflict management or dispute resolution may also be helpful. Consequently, we advise prospective trial consultants who choose educational paths in traditional disciplines to obtain competency in these areas prior to entering the job market. Some consultants specialize in providing a few services (e.g., witness preparation). This proclivity to specialize may be a natural progression of the field. Just as most attorneys specialize in one area (e.g., corporate law, and increasingly greater specializations such as in commercial contracts), trial consulting may be headed in that same direction. Specialization in particular areas has implications for education and training. A few final comments are in order. These authors view the lack of an obvious, single path to training as a shortcoming in the development of trial consulting as a profession. Will the term “trial consulting” continue to refer to an umbrella covering a set of related (some loosely) services for attorneys, or will the field evolve into a more structured, organized profession? Given demand for the service, growth in the field, and strong interest among students, the profession seems to have the opportunity to mature considerably in the next decade. The absence of an obvious path to training will limit the discipline’s maturation. We urge leaders, such as those

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involved in the ASTC, to consider the issue of training and begin conferring with representatives from graduate programs that have interests in training trial consultants to address such issues as opportunities, training models, and curriculum content.

References Borgida, E., & Fiske, S. T. (2008). Beyond common sense: Psychological science in the courtroom. Malden: Blackwell. Bornstein, B. H., Wiener, R. L., Schopp, R., & Willborn, S. L. (2008). Civil juries and civil justice: Psychological and legal perspectives. New York: Springer Science + Business Media. Kay, J. (2008). Social networking sites help vet jurors. The National Law Journal. Retrieved April 2, 2009, from http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202423725315. Kludt Andrews, C. (2005). Trial consulting: Moving psychology into the courtroom. In R. D. Morgan, T. L. Kuther, & C. J. Habben (Eds.), Life after graduate school in psychology: Insider’s advice from new psychologists (pp. 257–274). New York: Taylor & Francis. Lieberman, J. D., & Sales, B. D. (2007). Scientific jury selection. Washington: American Psychological Association. Moran, G. (2001). Why licensure is not necessary. Journal of Forensic Psychology Practice, 1, 77–85. Posey, A. J., & Wrightsman, L. S. (2005). Trial consulting. New York: Oxford. Strier, F. (2001). Why trial consultants should be licensed. Journal of Forensic Psychology Practice, 1, 69–76. Wrightsman, L. S., Kassin, S. M., & Willis, C. E. (1987). In the jury box: Controversies in the courtroom. Thousand Oaks: Sage Publications.

Chapter 16

Trial Consulting and Conflicts of Interest: An Introduction Dennis P. Stolle and Christina A. Studebaker

For many psychologists and other social scientists, trial consulting is an alluring career option. Trial consulting is an opportunity to practice applied social science in one of the most interesting contexts of social decision making – the courtroom. Many prospective trial consultants are also attracted by claims in the media, although generally overstated, that trial consulting is a lucrative and glamorous career. At the same time, some prospective trial consultants express concerns that a career in trial consulting could somehow involve compromising their ethical or professional responsibilities as social scientists. Perhaps the popular media fuel such concerns. For example, the 2003 movie, Runaway Jury, portrayed trial consulting as “jury tampering” and perhaps created general misperceptions of what trial consulting involves. Contrary to this concern of some aspiring trial consultants, the reality is that when a nonlawyer social scientist enters the world of trial consulting, the social scientist enters the highly regulated world of lawyers and courts. In turn, nonlawyer trial consultants who act at the direction of attorneys are, or should be, held to a high standard of conduct similar to the attorneys they assist. The strict standards governing conflicts of interest for lawyers, for example, likely also apply to trial consultants. A trial consultant’s breach of those standards could potentially be imputed to the lawyers the trial consultant is assisting. Accordingly, the trial consultant who fails to become familiar with the standards and regulations governing the conduct of lawyers and courts, particularly with regard to conflicts of interest, puts oneself and one’s clients at significant risk.

D.P. Stolle (*) ThemeVision LLC, 11 South Meridian Street, Indianapolis, IN 46204, USA e-mail: [email protected]

R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_16, © Springer Science+Business Media, LLC 2011

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Which Code of Conduct Applies to Trial Consultants? A threshold question encountered by any trial consultant is, “To what standard of conduct will I be held?” There is currently no governmental or licensing body whose purpose is to oversee directly the conduct of trial consultants. Indeed, there is no such thing as a “licensed trial consultant,” and there are no statutory or administrative rules specifically geared toward regulating the business or conduct of trial consultants. At bottom, anyone can hang out a shingle and call oneself a trial consultant, regardless of one’s qualifications. Trial consultants, therefore, come with all varieties of educational and professional backgrounds. Many trial consultants, however, are psychologists (Strier & Shestowsky, 1999). Accordingly, those trial consultants may believe that the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (“APA Code”) governs their professional conduct. Likewise, trial consultants who are anthropologists may believe the Code of Ethics of the American Anthropological Association governs their professional conduct. Sociologist trial consultants may believe the American Sociological Association’s Code of Ethics governs their professional conduct, and so on. Further, any of those trial consultants may also be members of the American Society of Trial Consultants (“ASTC”) and, therefore, believe the ASTC’s Professional Code governs their conduct. In one sense, they are all correct. If misconduct were reported to any of the societies to which a trial consultant belonged, the trial consultant’s behavior could potentially be reprimanded through the private procedures established by such organizations, potentially resulting in disciplinary action or the loss of their membership from those organizations. None of these codes, however, have the force and effect of law. And furthermore, professional disciplinary action by, or even expulsion from, a professional organization may not prevent a person from continuing to offer trial consulting services. What may perhaps not be obvious to some novice trial consultants is that the specific statutes and regulations applicable to the conduct of lawyers also indirectly govern a trial consultant’s conduct. A few nonlawyer trial consultants are employees of law firms. Most, however, are sole practitioners or work for a consulting firm, and they hire themselves out as independent contractors (Strier & Shestowsky, 1999). Either way, trial consultants most often work at the direction of lawyers. Generally, the rules of professional conduct governing their profession require lawyers to: (1) supervise the work of nonlawyers working at their direction and (2) ensure that the conduct of those nonlawyer assistants is compatible with the standards of professional responsibility applicable to the attorneys themselves. For example, Rule 5.3 of the American Bar Association Model Rules of Professional Conduct (“MRPC”) provides, “with respect to a nonlawyer employed or retained by or associated with a lawyer: ... (b) a lawyer having direct supervising authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” The language “employed or retained” suggests that this obligation extends beyond a lawyer’s

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direct employees. Further clarification comes in the Comment to Rule 5.3, which goes on to state: Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. (emphasis added).

As a matter of law in most jurisdictions, therefore, trial consultants are indirectly held to a standard of conduct compatible with the standard applicable to the conduct of the attorneys for whom they work.

Conflicts of Interest and Imputed Conflicts of Interest There is no statute or legal rule expressly stating that trial consultants must avoid conflicts of interest. Indeed, some trial consultants attempt to grant themselves immunity from conflicts of interest by including language in their engagement letters or standard contracts that purports to cause their clients to waive any conflicts. For example, some trial consultants may include language in their engagement letters such as: “Client expressly acknowledges that Consultant is in the business of performing jury consulting and research services for many customers, and Client acknowledges that Consultant may provide such services to other ­customers in its sole discretion. Client’s engagement of Consultant shall in no way limit the ability of Consultant to perform similar services for other customers ­during the term of this Agreement and/or at any time thereafter.” However, the importance of avoiding conflicts of interest is deeply engrained within the cultures of most professions, particularly those social-science-based professions that involve studying or counseling people. The APA Code (2002), for example, broadly defines conflicts of interest and clearly provides that conflicts of interest are to be avoided. The APA Code states: 3.06 Conflict of Interest. Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions as psychologists or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation.

Even more directly on point to trial consulting, though more narrowly tailored, the ASTC Professional Code (2006) also provides that conflicts of interest are to be avoided. IV. Conflicts of Interest. Trial consultants do not provide services for a client if those services appear to be in conflict with the interest of another client, unless the trial consultant informs each client of the nature of the conflict and both clients give their consent. The trial

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consultant remains alert throughout the consultant-client relationship for potential conflicts with present and past clients, and with present and past clients of trial consultants employed within the same business or practice group.

Again, however, neither the APA Code nor the ASTC Code carries the weight of law. Except to the extent these Codes might be interpreted by a court to inform a common-law standard of care, a trial consultant can largely avoid the technical requirements of either code by simply choosing to not be a member of those organizations. The more important consideration, therefore, is whether a trial consultant could, or should, be held to the specific standards applicable to lawyers for the avoidance of conflicts. Rules 1.7–1.10 of the MRPC describe conditions that create attorney conflicts of interest with current and former clients and explain how a conflict of interest not directly involving a particular lawyer can still be imputed to that lawyer. In relevant part and with respect to current clients, Rule 1.7 states: a lawyer shall not represent a client if the representation involves a concurrent conflict of interest[, which] exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Rule 1.8(b) of the MRPC adds that “[a] lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.” With respect to former clients, Rule 1.9 provides: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Finally, Rule 1.10 provides that conflicts of interest held by fellow attorneys in a firm can be imputed among them. The MRPC’s concept of imputing conflicts of interest from one professional to another as a result of their professional association with one another is a concept that is distinct from the ethical codes of most ­social-science-based professions. With regard to conflicts of interest, most social science ethical codes emphasize a professional’s responsibility for one’s own

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actions and perhaps the actions of one’s subordinates, not the actions of peers who act independently but with whom one has a professional association. For lawyers, as explained in the Comment to Rule 1.10, the premise is that a firm of lawyers is essentially one lawyer for the purposes of the rules governing conflicts of interest and loyalty to clients. The Comment to Rule 1.10 notes, however, that the rule “does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary.... Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.” As we discuss in more detail below, the absence of ­adequate screening procedures may lead to a presumption that confidential information is being shared.

The Attorney Work-Product Doctrine and the Attorney-Client Privilege As alluded to in the preceding section, the rules governing conflicts of interest and imputed conflicts of interest are highly influenced by the law’s focus on protecting confidential and privileged information within the attorney–client relationship. This is because ensnaring oneself in a conflict of interest can often lead not only to strained loyalties but also to the improper and unauthorized disclosure of confidential and privileged information. Accordingly, a brief overview of the legal protections afforded confidential client information is helpful before turning to a more detailed examination of the law of conflicts of interest. In the context of trial consulting, information is most often recognized as confidential and privileged by virtue of the attorney work-product doctrine. In federal court, the work-product doctrine is governed by a Federal Rule of Civil Procedure 26(b)(3), and most state courts have adopted a similar rule. The work-product doctrine “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case” (United States v. Nobles, 1975, p. 238). Accordingly, attorney work-product information is generally protected from discovery by a litigant’s adversary. A leading case on the discoverability of information prepared by a trial consultant is In re Cendant Corporation Securities Litigation (2003). Cendant involved a circumstance in which Dr. Phil McGraw (“Dr. Phil”) – prior to his television career and when he was a practicing trial consultant – had participated in preparing a key Ernst & Young witness for deposition. Cendant’s counsel learned of Dr. Phil’s involvement and sought to discover the nature and content of his discussions with the witness. The district court ruled that the work-product doctrine and attorney– client privilege were not applicable and that the information was discoverable. Ernst & Young appealed the district court’s decision to the Third Circuit. The Third Circuit reversed the decision of the district court and provided a thorough analysis

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of the application of the work-product doctrine to the work of trial consultants. The Cendant Court reiterated that work-product protection extends to both tangible and intangible work product. Furthermore, this protection clearly extends beyond materials prepared by an attorney to include materials prepared by an attorney’s agents and consultants. The Cendant Court quoted the Supreme Court, which has explained that “[a]ttorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the [work product] doctrine protect materials prepared by agents of the attorney as well as those prepared by the attorney himself” (United States v. Nobles, 1975, pp. 238–239). Indeed, the text of Rule 26(b)(3) itself, as pointed out by the Cendant Court, restricts “discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” However, the work-product doctrine is not an absolute bar to the discovery of certain materials prepared in anticipation of litigation. Work product can be discovered by an opposing party if “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). However, “if the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(A)(ii) and (B). Thus, Rule 26(b)(3) provides that some attorney work-product information may be discoverable if the party seeking discovery makes a showing that undue hardship will result if the information is not revealed. However, even if the party seeking discovery has made the requisite showing of need and undue hardship, courts must still protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney and the attorney’s agents. Fed. R. Civ. P. 26(b)(3). Accordingly, as explained in Cendant, there are two tiers of protection. First, work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship. Second, even if such a showing is made, work product that encompasses the “mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation” is “generally afforded near absolute protection from discovery” (Cendant Corporation Securities Litigation, 2003; see also, In re Ford Motor Co., 1997, p. 962 (footnote 7)). Thus, the mental impressions, conclusions, opinions, or legal theories of an attorney or the attorney’s agents should be discoverable only upon a showing of rare and exceptional circumstances. The work product of trial consultants assisting attorneys and litigants should, under most circumstances, be protected by the work-product doctrine. Indeed, the Third Circuit specifically held that “litigation consultants retained to aid in witness preparation may qualify as nonattorneys who are protected by the work product doctrine” (Cendant Corporation Securities Litigation, 2003; see also, Crown Power and Equipment Company v. Ravens, 2009, p.*9). Further, the work product of a trial

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consultant will often contain an amalgamation of the case-specific mental ­impressions, conclusions, and opinions of both the trial consultant and the lawyers, affording it “near absolute protection from discovery” (Cendant Corporation Securities Litigation, 2003). This is because the very nature of much trial consulting work involves a collaborative effort between the trial consultant and the lawyers to formulate opinions and theories regarding the strengths and weaknesses of a case, along with strategies for addressing those strengths and weaknesses. The work of trial consultants may also, under some circumstances, receive additional protection through the attorney–client privilege. Generally, the attorney– client privilege protects from discovery the content of communications between a lawyer and the lawyer’s client. However, the privilege may also protect communications that a lawyer makes to the client in the presence of a trial consultant or through a trial consultant. For example, although the Third Circuit did not reach the issue of the applicability of the attorney–client privilege in Cendant, Judge Garth, in concurrence, concluded as follows. While I recognize that in certain respects the attorney-client privilege has more narrow parameters than the work product doctrine, see, e.g., United States v. Nobles, 422 U.S. 225, 238 n.11, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975), I nevertheless am satisfied that the attorney-client privilege was operative when Dr. McGraw, the client Wood, and E&Y’s counsel were engaged in contemporaneous and simultaneous discussions concerning the instant litigation..... The attorney-client privilege operates to protect from disclosure communications among the client, counsel, and in circumstances such as are present here, a third party (here, Dr. McGraw) who was assisting E&Y’s counsel in the formulation of legal advice. Thus, I am persuaded that in addition to the work product privilege, the attorney-client privilege also protected communications voiced at the meetings of Wood’s counsel and Dr. McGraw.

The confidential nature of information shared in trial consulting relationships and the substantial protection the law grants to that information underscores the importance of protecting that information from potential unauthorized disclosure by avoiding conflicts of interest in rendering trial consulting services.

Hypothetical Scenarios Each of the following hypothetical scenarios involves a possible conflict of interest on the part of a trial consultant (who we smiply call “Trial Consultant” retained to work on a case by one or more attorneys. For each, we review some of the relevant case law to determine whether the trial consultant’s conflict of interest could potentially be imputed to the attorney(s) who retained the trial consultant. Even though virtually no case law has examined these situations in contexts specifically involving trial consultants, analogous case law involving testifying experts, paralegals, legal assistants, and other nonlawyer professionals participating in the litigation process does provide some guidance to trial consultants. For illustrative purposes, we review case law from multiple jurisdictions. Since each state typically adopts its own particular rules of conduct governing lawyers, the cases we review may have more precedential or persuasive value in some jurisdictions than in others.

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Scenario One: Current Clients, Same Matter, Confidential Information Shared Imagine the following scenario. Trial Consultant is not a lawyer and is not a member of the APA, ASTC, or any other professional organization. The law firm of Smith & Jones engages Trial Consultant to assist it in the matter of Walker v. XYZ Corporation. Smith & Jones represent XYZ Corporation, the defendant in a personal injury lawsuit brought by Walker. Smith & Jones disclose to Trial Consultant their confidential litigation strategies, including concerns about weaknesses in XYZ Corporation’s case. Trial Consultant provides Smith & Jones with advice and conducts focus group research to help Smith & Jones refine their strategies and arguments. During that time period, Trial Consultant is contacted by attorney Phillips, who represents Walker in Walker’s personal injury litigation against XYZ Corporation. Attorney Phillips asks Trial Consultant for assistance with his case. Trial Consultant accepts this new engagement concurrently with the work Trial Consultant is performing for Smith & Jones. Further, Trial Consultant shares with Phillips certain confidential litigation strategies of Smith & Jones without revealing to Phillips the dual engagement or the source of the information. For Trial Consultant, this is perhaps the clearest example of a conflict of interest. Trial Consultant is simultaneously working for adverse parties in the same matter and sharing one side’s confidential information with the other side, without either side’s knowledge or consent. However, Trial Consultant is not a member of the APA, the ASTC, or any other professional organization. As a result, Trial Consultant is not technically obligated to follow any organization’s code of conduct, much less the specific provisions relating to such an organization’s conflict of interest rules. Given that Trial Consultant is not a member of any professional organization, it might appear, at least at first blush, that Trial Consultant is in the clear and may take on both engagements regardless of the conflict. As pointed out by the District Court for the Eastern District of Virginia, “most assistants, unless lawyers themselves or members of some other professional association, cannot themselves be held accountable for unethical behavior unless it also amounts to criminal conduct.” (U.S. v. Smallwood, 2005, p. 699). However, is Trial Consultant putting Phillips at risk of disqualification from further representation of Walker in this matter? The short answer is yes. MRPC 1.7 states that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” And, Rule 1.8 adds that “[a] lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent.” Finally, Rule 5.3 provides, “with respect to a nonlawyer employed or retained by or associated with a lawyer: ... (b) a lawyer having direct supervising authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” Clearly, the circumstance described above involves both a concurrent conflict of interest and the actual, unauthorized, and improper sharing of confidential information.

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Even under circumstances far less clear than the foregoing example, courts strive to preserve the integrity of the judicial system by policing against even the appearance of impropriety. Courts have held, for example, that “even an appearance of impropriety may, under the appropriate circumstances, require prompt remedial action from the court.... [C]onsequently, any doubt is to be resolved in favor of disqualification.” (Rentclub, Inc. v. Transamerica Rental Finance Corp., 1992, p. 654). The circumstance described above goes far beyond the mere appearance of impropriety and involves the actual, unauthorized disclosure of confidential attorney work-product information. Courts have held that “disqualification will always be required under some circumstances, such as... when information relating to the representation of an adverse client has in fact been disclosed.” Phoenix Founders, Inc. v. The Honorable John McClellan Marshall, 1994. In the foregoing scenario, even though it was Trial Consultant who disclosed confidential information and did so without revealing that Trial Consultant was disclosing confidential information, Phillips’ counsel has likely been irreversibly tainted. “[T]he crucial issue is whether the individual or entity against whom disqualification is sought has obtained or been exposed to confidential or privileged information belonging to the adversary in the litigation.” (1210 Colvin Avenue, Inc. v. Tops Markets, LLC, 2006). Accordingly, many courts would be likely to conclude that the only appropriate remedy to protect the rights of XYZ Corporation would be disqualification of Phillips from any further representation of Walker.

Scenario Two: Former Client, Same Matter, Confidential Information Shared Begin imagining the same circumstance as Scenario One. The law firm of Smith & Jones engages Trial Consultant to assist it in the matter of Walker v. XYZ Corporation. Smith & Jones represent XYZ Corporation, who is the defendant in a personal injury lawsuit brought by Walker. Smith & Jones disclose to Trial Consultant their confidential litigation strategies, including concerns about those issues they consider to be weak spots in XYZ Corporation’s case. Trial Consultant provides Smith & Jones with advice and also conducts focus group research to help Smith & Jones refine their strategies and arguments. In this scenario, however, Trial Consultant terminates his engagement with Smith & Jones. Attorney Phillips, who represents Walker in his personal injury claim against XYZ Corporation, subsequently contacts Trial Consultant. Attorney Phillips asks Trial Consultant for assistance with Walker’s case. Trial Consultant accepts this new engagement and shares XYZ’s confidential information with Attorney Phillips. Does Trial Consultant have a conflict? If so, is Trial Consultant putting Attorney Phillips at risk of being disqualified? The short answers are yes and yes. For attorneys, MRPC 1.9 controls conflicts involving former clients. Rule 1.9(a) states, “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same... matter... unless the former client gives

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informed consent, confirmed in writing.” Courts have sometimes extended the logic of this rule to the question of whether a consultant or expert should be disqualified, particularly if the consultant or expert had obtained confidential information. In Wang Labs, for example, the court stated, “no one would seriously contend that a court should permit a consultant to serve as one party’s expert where it is undisputed that the consultant was previously retained as an expert by the adverse party in the same litigation and received confidential information from the adverse party pursuant to the earlier retention.” (Wang Labs, Inc. v. Toshiba Corp., 1991). Rule 1.9 does not specifically address the question posed by Scenario Two – whether an attorney can be disqualified due to his nonemployee consultant’s prior engagement with an adverse party in the same litigation. However, Rule 5.3 makes a lawyer responsible, to some extent, for the professional conduct of the lawyer’s nonlawyer consultants. In addition, some courts have now specifically extended the logic of Rule 1.9 to the circumstance presented in Scenario Two. That is, attorneys potentially can be disqualified from cases where they hire nonlawyers formerly employed by an adversary if the nonlawyers share privileged information they gained as a result of working with the adverse party. Consider In re Complex Asbestos Litigation (1991), which involved facts similar to those presented in Scenario Two. In Complex Asbestos, a paralegal left his employment with one law firm and obtained employment with another law firm. The first law firm moved to disqualify the second law firm from representation of multiple clients in asbestos cases adverse to the clients of the first law firm. The trial court considered the evidence and found that the paralegal had obtained confidential information. Specifically, a computer access log confirmed that the paralegal had, on one particular day, accessed computer records of his first employer that related to 20 cases filed by his future employer, even though he had no work responsibilities relating to those cases. “On the witness stand, [the paralegal] at first flatly denied having looked at these case records, but when confronted with the access log, he admitted reviewing the records ‘to see what kind of cases [his future employer] had filed.’” (In re Complex Asbestos Litigation, 1991, p. 584). Further, “substantial evidence established a reasonable probability that [the paralegal] used or disclosed to the [second employer] the confidential attorney-client information obtained from [the first employer’s] computer records.” (In re Complex Asbestos Litigation, 1991, p. 599). For those reasons, the California Court of Appeals affirmed the trial court’s decision to disqualify the second law firm. The court observed that, “[u]ntil the Legislature or the State Bar chooses to disseminate a different standard, attorneys must be held accountable for their employees’ conduct, particularly when that conduct poses a clear threat to attorney–client confidentiality and the integrity of our judicial process.” (In re Complex Asbestos Litigation, 1991, p. 603). Scenario Two is similar to the situation presented in Complex Asbestos. In Scenario Two, Trial Consultant leaves Smith & Jones and has admittedly shared confidential information pertaining to Smith & Jones’ trial strategies and other work product with Phillips. This parallels Complex Asbestos, where the court found substantial evidence that the paralegal had likely shared confidential information

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with his new employer. Although Trial Consultant is an independent contractor, not an employee, many courts might apply similar reasoning to Scenario Two. This could be true even if Phillips was unaware of Trial Consultant’s conflict. Situations where nonlawyers (e.g., trial consultants, paralegals, experts, etc.) cross from one adverse party to another in a particular suit can present obvious problems with ensuring that work product stays protected. Courts vigorously protect attorney–­ client confidences, as well as attorneys’ mental impressions and litigation strategies. In Scenario Two, Trial Consultant has admittedly turned over these highly protected materials without the consent of Smith & Jones, which will likely result in severe prejudice to XYZ Corporation. Consequently, there is a strong chance that the court would disqualify Phillips from the case.

Scenario Three: Former Client, Same Matter, No Confidential Information Shared Imagine the same scenario as Scenario Two. The law firm of Smith & Jones engages Trial Consultant to assist it in the matter of Walker v. XYZ Corporation. Smith & Jones represent XYZ Corporation, who is the defendant in a personal injury lawsuit brought by Walker. Smith & Jones share confidential strategy information with Trial Consultant. Subsequently, Trial Consultant leaves the employ of Smith & Jones. Attorney Phillips, who represents Walker in his personal injury claim against XYZ Corporation, contacts Trial Consultant. Attorney Phillips asks Trial Consultant for assistance with his case. Trial Consultant accepts this new engagement. However, in this scenario, Trial Consultant is careful not to share with Attorney Phillips any clearly confidential information of XYZ. Does Trial Consultant have a conflict? Can Attorney Phillips be disqualified from further representation of Walker? The short answers are likely yes and yes, at least in some jurisdictions. With respect to attorneys, Rule 1.9(a) provides “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same... matter.” Attorneys cannot defend themselves against Rule 1.9(a) by claiming they were careful not to use or disclose confidential information. Courts have generally observed a conclusive presumption that when attorneys “switch sides” in any given case, they share any confidential information they possess with their new client. Courts have employed this presumption to ensure the protection of work product and to preserve the integrity of, as well as the perceived integrity of, the judicial system. Thus, courts have consistently disqualified attorneys who attempt to continue to work on a case after joining the side to which they were formerly adverse, even if the lawyer makes a conscientious effort not to use or share confidential information. Some courts have chosen to also extend this presumption to nonlawyers (for example, see MMR/Wallace Power & Ind. Inc. v. Thomas Assoc., 1991). Nonlawyers can be exposed to confidential and privileged information, and confidential and

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privileged information obtained by a nonlawyer deserves the same protection as that obtained by a lawyer. As one court stated, “It is no secret that paralegals and other nonattorney staff members are regularly exposed to confidential client information as part of their everyday work. Whether by such means as the filing of a confidential client letter in a case file or attendance at a strategical meeting, nonattorneys... often acquire sensitive information about their clients. To allow such employees to change firms at random and without concern for the information they have acquired would be to undercut the rules applicable to attorneys.” (Daines v. Alcatel, S.A., 2000, p. 682; see also, Ciaffone v. District Court, 1997, and Zimmerman v. Mahaska Bottling Co., 2001). Further, the court in Williams v. Trans World Airlines, Inc. (1984) pointed out the potential impact on public perceptions of, and trust in, the courts. The Williams court stated, “If information provided by a client in confidence to an attorney for the purpose of obtaining legal advice could be used against the client because a member of the attorney’s nonlawyer support staff left the attorney’s employment, it would have a devastating effect both on the free flow of information between client and attorney and on the cost and quality of the legal services rendered by the attorney. Every departing secretary, investigator, or paralegal would be free to impart confidential information to the opposition without effective restraint. The only practical way to assure that this will not happen and to preserve public trust in the scrupulous administration of justice is to subject these ‘agents’ of lawyers to the same disability lawyers have when they leave employment with confidential information.” (p. 1044). However, courts sometimes apply these rules less stringently to nonlawyers than to lawyers. Courts in different jurisdictions have also sometimes differed in their application of these rules. In In re American Home Products Corp. (1998), the court made a distinction for nonlawyers between obtaining confidential information and sharing that confidential information with a new employer. American Home involved a “freelance consultant” who “had no legal training, and had never before worked as a paralegal, legal assistant, or legal secretary” (p. 4). This consultant “interviewed potential fact and expert witnesses, met with Wyeth’s counsel, coordinated meetings between Wyeth’s counsel and prospective consulting and testifying experts, investigated individual plaintiffs at the request of Wyeth’s counsel, wrote memoranda to [local counsel] on how to best utilize potential witnesses, and examined the jury selection process in Zavala County. [She] also observed various unrelated proceedings in the trial court assigned to preside over the Norplant litigation in Zavala County and reported back regarding verdicts rendered in that court” (pp. 3–4). The court stated that the presumption that a nonlawyer obtains confidential information when assisting with a case is not rebuttable, meaning that it is conclusive and can never be overcome (see also Phoenix Founders, Inc. v. Marshall, 1994). However, for nonlawyers, the presumption that the information was shared may be overcome when specific conditions are met. For example, the presumption that a nonlawyer shared information with a new employer may be rebuttable when screening precautions (sometimes referred to as “ethical walls”) are employed. These precautions include instructing the nonlawyer not to work on any matter worked on during the prior employment or for which she has any information relating to the former employer’s representation, and taking

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r­ easonable steps to make sure this is enforced. In American Home, statements or assurances by the new employer that the nonlawyer did not divulge any confidential information were not deemed sufficient to rebut the presumption that the nonlawyer shared confidential information, and the employer/attorney in the case was ­disqualified. The court stated, “Even had Herrera testified unequivocally that Palacios did not divulge anything to him that was confidential, this would not have been any evidence to overcome the rebuttable presumption that Palacios shared information with him or members of his firm. We held in Grant that uncontroverted testimony from lawyers that a legal secretary did not reveal anything to them did not raise a fact question. We explained that the presumption may be rebutted only by establishing that ‘sufficient precautions have been taken to guard against any disclosure of confidences.’” Contrast American Home with 1210 Colvin Avenue. In 1210 Colvin Avenue (2006), the defendant moved to disqualify the plaintiff’s “trial consultants” and plaintiff’s counsel. The defendant argued that the trial consultants were defendant’s former employees, who had confidential information about the litigation which they were likely sharing with plaintiff’s counsel. The court determined that the trial consultants had been exposed to confidential information of the defendant’s and that they should be disqualified regardless of whether they affirmatively shared that information with the plaintiff. When it turned to the question of whether plaintiff’s counsel should be disqualified, the court determined that any presumption that the trial consultants had shared confidential information with plaintiff’s counsel had been rebutted by affidavits filed by the trial consultants and plaintiff’s counsel, which denied any such disclosures. Accordingly, the court refused to disqualify plaintiff’s counsel. However, the court limited its holding to some extent, as follows: Finally, the Court concludes that even if the presumption has not been effectively rebutted – McGee & Gelman’s continued representation does not threaten to taint the integrity of these proceedings and disqualification is not required. The only threat of taint to which Tops points is a lingering “nagging suspicion” that Colvin has been unfairly advantaged. Under the circumstances of this case, however, disqualification of counsel would not provide any remedy beyond that already provided by the disqualification of Bridgepoint.

In Scenario Three, Trial Consultant does have a conflict and Attorney Phillips potentially could be disqualified from further representation of Walker. Courts faced with similar situations involving experts, paralegals, or other nonlawyers who were privy to confidential information due to previous employment by an adversary, have stated that a “presumption” arises that they share this information with their new employer. There is a split regarding whether this presumption is rebuttable. Some courts hold that it is rebuttable, but only if the proper screening procedures are followed (e.g., the nonlawyer is not assigned to work on the case posing the conflict at the new place of employment). Other courts have held that the presumption can be rebutted by sworn testimony plausibly denying any disclosure of confidential information. In Scenario Three, Trial Consultant is hired to work specifically on the case about which Trial Consultant had confidential information and was not subjected to any screening process. Thus, in at least some jurisdictions, the court would likely find that Trial Consultant’s conflict could be imputed to Phillips and then disqualify Phillips from the case.

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Scenario Four: Former Client, Substantially Related Matter, Confidential Information Shared Imagine the following scenario. The law firm of Smith & Jones engaged Trial Consultant several years ago to assist it in the matter of Walker v. XYZ Corporation. Attorneys Smith & Jones represented XYZ Corporation, who was the defendant in a personal injury and product liability lawsuit brought by Walker, which has since been resolved. Smith & Jones disclosed to Trial Consultant their confidential litigation strategies, including concerns about those issues they considered to be weak spots in XYZ Corporation’s case. Trial Consultant provided Smith & Jones with advice and conducted focus group research to help Smith & Jones refine their strategies and arguments. Now, several years later, Attorney Phillips, who represents Zimmerman in his personal injury claim against XYZ Corporation, contacts Trial Consultant. The facts of Zimmerman’s case are very similar to the facts of Walker’s case, for example, it involves the same product, the same theory of product defect, and nearly identical injuries. Attorney Phillips asks Trial Consultant for assistance with the case. Trial Consultant accepts this new engagement and shares XYZ’s confidential information, which Trial Consultant learned in the Walker case several years ago. Does Trial Consultant have a conflict? Can Attorney Phillips be disqualified from further representation of Walker? The short answers are likely yes and yes, in at least same jurisdictions. MRPC 1.9(a) provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in... a substantially related matter in which that person’s interests are materially adverse.” Based on Rule 1.9, courts have consistently disqualified attorneys when they themselves have a conflict of interest due to their participation in a previous matter that is “substantially related” to the present case they are involved with. As noted in the discussion of Scenario One, courts are very protective of attorney work product. Thus, “[w]ith respect to lawyers... [courts have] adopted a standard requiring disqualification whenever counsel undertakes representation of an interest that is adverse to that of a former client, as long as the matters embraced in the pending suit are ‘substantially related’ to the factual matters involved in the previous suit.” (Phoenix Founders, Inc. v. Marshall, 1994, p. 83). The burden to demonstrate that two suits are “substantially related” falls upon the party seeking disqualification, who “must prove that the facts and issues involved in both the former and present litigation are so similar that there is a genuine threat that confidences revealed to the party’s former counsel will be divulged to his present adversary.” (In re Relators Bell Helicopter Textron, Inc., 2002, p. 146). Even though Rule 1.9 does not specifically address a situation where an ­attorney’s nonlawyer consultant has a conflict, as discussed above, paralegals, legal assistants, experts, and other specialized nonattorneys are held to standards compatible with those applicable to attorneys and their conflicts can potentially be imputed to the attorneys for whom they are working. In addition, courts have now extended this principle to nonlawyers who have changed employers and have worked on

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­ atters for adverse parties that are substantially related to pending suits. That is, m attorneys can be disqualified from cases when they hire nonlawyers formerly employed by an adversary if the nonlawyers share privileged information they gained as a result of working with the adverse party. Consider, for example, Bell Helicopter (2002), in which plaintiffs were suing for damages caused by a helicopter crash. Plaintiffs’ attorney hired defendant’s former employee as a consulting expert. The former employee was an accident investigator for the defendant-helicopter manufacturer and had helped defendant’s “in-house and outside counsel to develop legal strategies for lawsuits that arose out of helicopter crashes...” (In re Relators Bell Helicopter Textron, Inc., p. 144). Thus, the former employee was privy to work-product information of prior suits that were substantially related to the case at hand. The court never found specifically that the former employee had shared protected information with her new employer, but the court ruled that it would be impossible for the former employee to not disclose any of the confidential information she possessed while aiding plaintiff. The court reasoned that any advice the expert/former employee would give plaintiff’s attorney would be at least partly influenced by the knowledge she gained through her previous employment. Thus, the court imputed her conflict to plaintiff’s attorney and disqualified him from the case. A similar outcome occurred in Rentclub, Inc. v. Transamerica Rental Finance Corp. (1992), a bankruptcy case in which a company’s financial manager was discharged by the company and then retained as a paid “trial consultant” by a law firm representing parties in a lawsuit against the company. The court held that there was an appearance that the law firm had induced the former employee/consultant to disclose to it confidential matters relating to the company’s strategies, theories, and mental impressions in the current and/or substantially related litigation, and the law firm who had hired the consultant was consequently disqualified from the case. The facts in Scenario Four are very similar to those of Bell Helicopter (2002). Trial Consultant had helped Smith & Jones prepare and develop trial strategies and refine their legal arguments in the defense of XYZ Corporation in a products liability suit. Even though that suit had concluded, the present suit against XYZ Corporation is substantially related to the former suit, as the fact pattern is similar and it involves the same product, the same legal theories, and the same types of injury that were at issue in the previous case. In this case, Trial Consultant has admittedly shared her knowledge of Smith & Jones’ trial strategies and other privileged information with Phillips. In Bell Helicopter, the court never specifically found that the former employee had disclosed confidential information to her new employer, but the court still ordered plaintiff’s counsel disqualified due to the inevitable fact that any advice she offered would be shaped by her knowledge of the other side’s trial strategies. the case against Phillips and Trial Consultant would be even stronger because Trial Consultant has explicitly shared confidential information with Phillips. Because courts seek to protect the work product of attorneys, a court would likely analogize this scenario to Bell Helicopter and other similar cases and find that Phillips should be disqualified by virtue of Trial Consultant’s conflict.

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Scenario Five: Former Client, Substantially Related Matter, No Confidential Information Shared Imagine the same scenario as Scenario Four. The law firm of Smith & Jones engaged Trial Consultant several years ago to assist it in the matter of Walker v. XYZ Corporation. Smith & Jones represent XYZ Corporation, who is the defendant in a personal injury lawsuit brought by Walker, which has since been resolved. Smith & Jones disclosed to Trial Consultant their confidential litigation strategies. Now, Attorney Phillips, who represents Zimmerman in his personal injury claim against XYZ Corporation, contacts Trial Consultant. The facts of Zimmerman’s case are very similar to the facts of Walker’s. Attorney Phillips asks Trial Consultant for assistance with his case. Trial Consultant accepts this new engagement. In this scenario, however, Trial Consultant is careful not to share XYZ’s confidential information, which he learned in the Walker case several years ago. Does Trial Consultant have a conflict? Could Attorney Phillips be disqualified from further representation of Walker? The short answer is likely yes and yes, at least in some jurisdictions. Just as there is a presumption that nonlawyers share protected information in situations where they switch sides of the same suit, there is a presumption that nonlawyers share protected information if they switch sides after their involvement in previous, substantially related suits, and this presumption is made for similar reasons, that is, courts want to prevent the appearance of impropriety and ensure the protection of work product (see Rentclub, Inc. v. Transamerica Rental Finance Corp., 1992). In Bell Helicopter (pertinent facts described in discussion of Scenario Four), plaintiff’s counsel asserted that he had subjected defendant’s counsel to a screening process. Therefore, plaintiff’s counsel felt that the presumption had been overcome. The court noted that no effective screening procedures could be used to ensure the consulting expert’s knowledge of protected information would not come out in some form since she was hired to work on a suit substantially related to previous suits that she helped develop trial strategies for. In other words, it would be impossible for the former employee to offer any advice that would not be at least somewhat shaped by her knowledge of the trial strategies of the other side. Thus, the court imputed the conflict to plaintiff’s counsel and disqualified him from the suit despite the assertion that a screening process was used. In Scenario Five, Trial Consultant has worked on a matter substantially related to the case at hand because she helped prepare trial strategies and legal arguments for Smith & Jones in defense of XYZ Corporation on a products liability claim involving the same product. Even though Trial Consultant claims to have been careful not to disclose any privileged information, a court might employ the presumption that Trial Consultant had disclosed the information because it would be impossible for that information to not at least influence, in some way, Trial Consultant’s advice. Furthermore, the Scenario Five facts indicate that Phillips never subjected Trial Consultant to any type of screening process. Even if Phillips

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would have done so, however, a court might follow the rationale of Bell Helicopter (2002) and decide that there would be no way to effectively screen Trial Consultant given that Trial Consultant has been hired to work on a specific case that is substantially related to a case about which Trial Consultant has privileged information. The conflict in Scenario Five could potentially be imputed and Phillips could potentially be disqualified. Under those circumstances, a presumption exists in at least some jurisdictions that the protected information possessed by a nonlawyer is shared with the nonlawyer’s new employer. Some courts have held that this presumption can be rebutted via a careful screening process, but even a careful screening process is unlikely to rebut the presumption where the nonlawyer possesses privileged information about a substantially related matter.

Can Conflicts of Interest be Waived by Contract? Imagine that Trial Consultant’s standard engagement letter contained the following statement: “Client expressly acknowledges that Consultant is in the business of performing jury consulting and trial research services for many customers, and Client acknowledges that Consultant may provide such services to other customers in its sole discretion. Client’s engagement of the Consultant hereunder shall in no way limit the ability of Consultant to perform similar services for other customers during the term of this Agreement and/or at any time thereafter.” Could such a statement waive any conflict of interest that may exist now or in the future? The short answer is, it depends. The ability of lawyers to enter into agreements that waive conflicts of interest is controlled by Rule 1.7(b), which provides: Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

Whether the conflict waiver provision described above would be enforced is a highly fact-dependent question. One of the critical questions is whether the client is truly giving “informed consent” when agreeing to such a provision. Rule 1.0 defines “informed consent” as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Obviously, under that standard, the more detailed the information that is provided to the client regarding the nature and implications of the conflict, the more likely it is that the client gave “informed consent.” How much detail is sufficient, however, would be subjected to a case-by-case analysis.

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The example waiver presented above is phrased such that it is not limited to a current, known conflict. Instead, the language “during the term of this Agreement and/or at any time thereafter” implies that the waiver would also encompass currently nonexistent, potential future conflicts. When applied to lawyers, Rule 1.7(b) does not prohibit the practice of having a client give consent in advance to a future conflict. However, the enforceability of the waiver would still depend on whether the client’s consent was an “informed consent.” In making a case-by-case determination of whether the requirement of “informed consent” was satisfied, a court could potentially look to such factors as whether the client was a sophisticated client who was represented by counsel in connection with the decision to agree to the waiver. Whether the waiver relates to a known, current conflict or a future, currently unknown conflict, the analysis is complicated when the waiver is sought by a nonlawyer trial consultant. Rule 1.7 was clearly drafted with the intent that it would apply to the lawyer–client relationship. Where the relationship is between a client and a trial consultant engaged by the client and/or the client’s counsel, an additional layer of uncertainty may enter the analysis. Overall, such waivers are likely to be scrutinized by courts on a case-by-case basis, with courts likely upholding such waivers under some circumstances (especially those circumstances involving sophisticated clients who are represented by counsel) and perhaps rejecting such waivers under other circumstances. Often, the result may depend on the sophistication of the parties involved, the circumstances under which the waiver was obtained, the disclosures that were made in connection with obtaining the waiver, and the precise wording of the waiver, including whether it provides satisfactory continuing protection for confidential information. Finally, there are some conflicts that are so direct – such as a trial consultant providing confidential advice to both sides of a single litigated matter –that any attempted waiver of such a conflict may be rejected by a court even if detailed information was disclosed and the client was sophisticated and represented by counsel.

Trial Consultant’s Liability In each of the foregoing hypotheticals, we have focused primarily on the impact a trial consultant’s conflict could have on the attorney with whom the trial consultant is working, and we have assumed in our hypotheticals that Trial Consultant is not a member of any professional organization that could discipline Trial Consultant. However, a conflict of interest could have a substantial ­detrimental impact on Trial Consultant. For example, if Phillips were to be disqualified from further ­representation of Walker in Walker v. XYZ Corporation, it could have a significant financial impact on both Phillips and Walker. In many states, Phillips and Walker, in turn, would likely have causes of action under common law against Trial Consultant for negligence and/or intentional tortious conduct. Depending upon the particular facts, it is quite possible that Trial Consultant would be unable to assert any successful defense in such an action.

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Conclusion Although there has been virtually no case law dealing with jury consultants and the particular issues presented in these hypothetical scenarios, analogous situations involving experts, paralegals, and other specialized nonlawyers have been litigated in various jurisdictions. The decisions from these cases are instructive as to how courts would likely deal with trial consultants in these contexts. While some trial consultants may be unaware that their own conflicts and behaviors can affect the attorneys who hire them and the cases they work on, it is clear that they can have a substantial impact, including potential disqualification of the attorneys. Thus, to avoid ethical and legal problems, both trial consultants and attorneys should give careful consideration to the consequences of a trial consultant’s potential conflicts prior to any engagement.

References 1210 Colvin Avenue, Inc. v. Tops Markets, LLC, 2006 U.S. Dist. LEXIS 93689 (W.D.N.Y. December 28, 2006). American Psychological Association. (2002). Ethical Principles of Psychologists and Code of Conduct. http://www.apa.org/ethics/code2002.pdf. American Society of Trial Consultants. (2006). The ASTC Professional Code. http://astcweb.org/ content/File/AboutUs/ASTC_Code_Preamble.pdf. Cendant Corporation Securities Litigation, 2003 U.S. App. LEXIS 19176 (September 16, 2003). Center for Professional Responsibility. (2009). Model Rules of Professional Conduct. American Bar Association. Ciaffone v. District Court, 945 P.2d 950 (1997). In re Complex Asbestos Litigation, 283 Cal. Rptr. 732 (Cal. Ct. App. 1991). Crown Power & Equipment Co. v. Ravens, 2009 Mo. LEXIS 535 (Mo. November 17, 2009). Daines v. Alcatel, S. A., 194 F.R.D. 678 (E.D. Wash. 2000). In re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998). In re Ford Motor Co., 110 F.3d 954 (3d Cir. 1997). MMR/Wallace Power Ind., Inc. v. Thomas Assoc., 764 F. Supp. 712 (D. Con. 1991). Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994). In re Relators Bell Helicopter Textron, Inc., 87 S.W.3d 139, 145 (Tex. App. 2002). Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F. Supp. 651 (M.D. Fla. 1992). Strier, F., & Shestowsky, D. (1999). Profiling the profilers: A study of the trial consulting profession, its impact on trial justice and what, if anything, to do about it. Wisconsin Law Review, 1999, 442–499. United States v. Nobles, 422 U.S. 225, 238 (1975). United States v. Smallwood, 365 F. Supp. 2d 689 (E.D. Va. 2005). Wang Labs, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991). Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037 (W.D. Mo. 1984). Zimmerman v. Mahaska Bottling Co., 19 P.3d 784 (Kan. 2001).

Chapter 17

Reform Proposals Franklin Strier

As trial consulting proliferates, two broad categories of concerns regarding its use have spurred calls for reform. The first concern pertains to fairness, both as popularly conceived and as contemplated under the Constitution. The second involves the professional standards of trial consultants. This chapter outlines the specific problematic issues within each category and then presents various reforms proposed in response. The sources of the proposals vary; academic scholars, judges, attorneys, psychologists, and trial consultants themselves have all contributed.

Trial Consulting and Fairness In trial consulting, the issues of fairness and efficacy are inextricably intertwined. If, for example, trial consulting is so effective as to significantly impact the composition or mind set of juries, it may violate the Constitutional right to an impartial jury. The impartiality mandate would seem most threatened when only one side has access to jury science. Whether or not unconstitutional, if consulting is effective, its availability to, and use by one side only would seem clearly unfair. Given the problems inherent in measuring the efficacy of trial consulting, it is unlikely we will ever know precisely how effective any trial consulting technique is. Yet even absent such an unequivocal determination, trial consulting tends to create an untoward public perception of the jury being manipulated by psychological devices (Gold, 1987), in essence, high-tech jury tampering. This, in turn, detracts from the legitimacy juries bring to the administration of trial justice, for the appearance of justice is undeniably as important as the reality in order to preserve and maintain public support. The presence of consultants in high profile cases with verdicts that seem more the product of bias than evidence feed skepticism about the jury system. Instead of a jury representing a cross-section of the values of the

F. Strier (*) California State University, Dominguez Hills, 1000 E Victoria Street, Carson, CA 90747, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_17, © Springer Science+Business Media, LLC 2011

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community, it may seem a body stacked with people holding biases favoring the side with the trial consultant, or the best trial consultant. And rather than evidence presented to reveal the truth, the trial may appear an exercise in cryptic but effective exploitation of juror biases. The perceived fairness of trial consulting is an empirical issue capable of being experientially evaluated. In one study, investigators tested how the use of a psychologist trial consultant for jury selection and trial preparation impacted the perceived fairness of trial procedures and outcomes. A key finding was the effect of balance on perceived fairness. Trial procedure was generally seen as fair when both sides had a consultant or neither side had a consultant. In other words, procedural justice is seen as greater when there is a balance in the presence or absence of trial consultants (Stolle et al., 1996).

Only Affordable by the Wealthy The escalating costs of trial consulting render it a service available only to the rich – typically corporations, governments, and wealthy individuals. A Los Angeles ­attorney who often uses trial consultants writes, “Very few trial consultants can come in and do any meaningful work for less than $50,000–$100,000” (Lambert, 1994, B7). A New Rochelle trial consultant adds that a full scale workup can run as high as $500,000 (Hunt, 1982). With respect to specific services, a partner at New York’s Proskauer Rose law firm estimates rates to be $30,000 for focus groups, twice that for a mock jury trial, $100,000 for a shadow jury and $125,000 for a sophisticated electronic presentation (Post, 2004). This widens the alreadysubstantial advantage of the wealthy who can afford the best legal representation, investigators, and expert witnesses. When only one party can afford jury selection experts, it puts into relief the imbalances created by a mismatch of client resources, and raises the issue of whether giving government, large corporations, and wealthy individuals such an advantage over their opponents undermines the very foundation of a fair trial. Hans and Vidmar (1986) project this line of thought further. They refer to critics who believe the potential imbalance created by scientific jury selection threatens the institutional justifiableness of the jury and adversary systems: Within the adversarial context, it is presumed each side will eliminate those prospective jurors most favorable to the other side and that the end result will be an impartial jury. Yet, this assumes equal resources and skills for the two sides. The viability of the adversary system to ensure a fair and impartial jury and trial, in jury selection as well as in other stages of the trial, is sorely tested when the adversaries possess unequal resources. In this light, the major ethical problem with social science in the courtroom is not the techniques themselves but rather the fact that in our society the condition for equality of resources is most often not met. Jury experts may exacerbate the impact of such disparities. There are no easy answers in this ethical quagmire, since the issues extend beyond the techniques themselves to the nature and functioning of the adversary system itself. But the ethical issues must constantly be confronted by those who conduct and those who benefit from the new developments in jury selection (pp. 93–94). (Emphasis supplied)

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Saks (1987, p. 55) adds that we must look at the social and legal context within which scientific jury selection occurs before rendering ethical judgments. He writes: If both sides have social science help … scientific jury selection would make the goal of impartial jury decisions more attainable than has ever before been possible. But, the critics would interject, the presence of such expertise on both sides is a fantasy that ignores the realities of justice in America. Today only the wealthy and celebrated have such help, and tomorrow the only additional people to have it will be prosecutors, and they will use it routinely … But it does not demonstrate some evil inherent in scientific jury selection. It points instead to a fundamental inequity in our courts. (Emphasis supplied)

The Distinctiveness of Jury Selection Although the consensus is that postselection services are probably more outcomedeterminative than jury selection, it is the latter which draws the most light and heat. Given that one of the most important issues of trial consulting is the unfair advantage it gives to those who can afford it, and since it is presumably better to spend limited client resources on postselection services, one might wonder why jury selection attracts a disproportionate share of attention. Two compatible answers can be offered. Scientific Jury Selection is Qualitatively Different from Postselection Services Postselection services refer primarily to those enhancing evidence presentation and argumentation, i.e., traditional attorney functions. As such, they do not seem to go beyond the conventional bounds of legal representation. Conversely, scientific jury selection techniques are almost exclusively extralegal psychological devices that may seem to many to transgress the rules of what is a “fair trial.” Put differently, it may seem acceptable to help the attorney be a better attorney, but unacceptable to “stack the deck” before the trial starts. People will more readily accept courtroom persuasion by the attorney – even excessive and pandering tactics a la Johnny Cochran, who represented O.J. Simpson and other prominent clients – than they will social science techniques by unseen behaviorists aimed at “fixing the jury” by altering its composition. This can appear an unfair deviation from the rules of the game. Jury Selection is Sacrosanct Because the Jury is Sacrosanct It would betray great naivete to deny that trial consultants believe it their role to choose favorably biased jurors, as opposed to impartial jurors. The jury, however, is an enduring institution of American trial justice. Its special status stems from colonial times, when it served as a bulwark against England’s crown-appointed

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judges. So esteemed is the jury that it is the only decision making body legally empowered to nullify the law and vote its collective conscience. Consequently, perceived tampering with the jury system, in any way, shape, or form, is tantamount to undermining a cornerstone of trial justice.

Professional Standards A second major concern involves professional ethics and standards. Many if not most professions applying academically oriented skills, such as medicine, law, accounting, and psychology, are regulated to the extent necessary to protect the public against unskilled or unscrupulous practitioners. Some of this regulation is external, in the form of state licensing or certification. Often there is a continuing education requirement to instill some public confidence that the practitioner keeps current on germane new knowledge and developments. Additionally, professional associations or agencies frequently prescribe binding ethical standards in the form of a code of behavior. In a relatively new and explosively developing field such as trial consulting, the establishment of such standards is important, if not essential (see other chapters in this Section, especially those by Cutler and Stinson (Chap. 15), Stolle and Studebaker (Chap. 16)). Practitioners need guidelines. The public needs assurance that the profession sincerely intends to abide by some sort of moral compass.

An Unregulated Profession The trial consulting industry is presently unregulated. Anyone can enter and selfidentify as a trial consultant. Without professional qualifications and binding ethical restrictions, untrained and incompetent individuals can advertise and practice with impunity. Further, there are no continuing education requirements. Coupled with the as yet unproven relationship between trial consulting services and trial outcome, this conduces an environment for practitioners of questionable competence and ethics, since those practitioners without traditional credentials must, of necessity, be adroit at self-promotion. To this end, they often engage in misleading practices, such as laying claim to a won–loss record in their advertising.

ASTC Standards are Minimal The industry’s sole professional organization, the American Society of Trial Consultants (ASTC), does not require any specific credentials for membership nor restrict its members’ advertising in any enforceable way. The ASTC has a

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Professional Code that prescribes certain ethical and professional and ethical ­principles and standards. These are rather anemic, however, and not nearly as rigorous as those of related professional organizations such as the American Psychological Association (APA). Moreover, some current practices of trial consultants may violate APA ethical standards, as follows. To the extent social scientists help produce biased juries, they may violate General Principle A: “Because psychologists’ scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against … factors that might lead to abuse,” and, more specifically, General Principle E: “Psychologists try to eliminate the effect on their work of biases based on [gender and race differences], and do not knowingly participate in or condone activities of others based upon such prejudices” (APA, 2002). Advising consultant-psychologists also breach APA rules to limit their practice to their demonstrated areas of professional competence when they are not honest to clients as to what they can do (Standard 2.01). Current practices of trial consultants may also violate the standards of the legal profession. Attorneys often delegate some or all of their witness preparation to the trial consultants they hire. Although the ASTC Code has practice guidelines regarding witness preparation, they are somewhat vague and, in any event, unenforceable. Conversely, an attorney (but not the trial consultant he hires) is subject to discipline for violations of the American Bar Association’s (ABA, 2003) Model Rules of Professional Conduct (MRPC) regarding witness preparation. If a trial consultant breaches these rules, the attorney client would probably be vicariously liable under agency law and a Comment to Model Rule 5.3, which reads, “The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline” (Comment 1).

Investigations of Prospective Jurors A considerable part of the impetus for more rigorous and well-defined professional ethical standards in trial consulting issues from pretrial investigations of prospective jurors by trial consultants. Many procedures skirt the outer limitations of acceptable practices. Some investigations may constitute jury tampering, obstruction of justice, or invasion of privacy (Pierce, 1990; Hunt, 1982). Herbsleb, Sales, and Berman (1979) offer the following illustration of how an ostensibly innocuous pretrial investigation procedure can run afoul of the law. In developing a community network model, trial consultants usually rely on friends of the defendant or other nonprofessionals untrained in the skills of this type of information gathering. There is a high probability some of these people will act or appear “suspicious.” If a person so contacted by someone in the network in turn informs a prospective juror that persons of questionable character or motive are conducting an investigation into his or her personal affairs, the prospective juror may well feel threatened or intimidated. That may constitute obstruction of justice. The federal statute, for example, defines this infraction as “whoever corruptly ... endeavors to influence,

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intimidate, or impede ... any grand or petit juror ... in the discharge of his duty” (18 U.S.C.A. sec. 1503). Importantly, this section has been held to apply to prospective jurors as well as sworn jurors (Osborn v. U.S., 1966). Prospective jurors experience another face of the invasion of privacy in court, during voir dire. Vividly illustrated in the O.J. Simpson criminal case and other high profile cases, the questioning of prospective jurors can be prolonged and delve into intensely private and intimate details of the questioned individual’s life. This is motivated by each trial attorney’s desire to make the most informed and effective use of his or her peremptory challenges. Contrasting our system with England’s, where both peremptory challenges and pretrial investigations have been eliminated, David Weinstein (1997) observes: “In the U.S., where voir dire allows for vast intrusions into private lives, the result has not been greater impartiality, but a proliferation of methods by which skilled litigators and expensive consultants tailor juries to their clients’ needs” (p. 50).

Proposed Reforms Several reforms have been proposed in response to these concerns. Their adoptions would variously affect the growth of the industry, the nature and quality of the tools and methods used by trial consultants, and the qualifications of the practitioners. Save for the last (appointment of consultants for indigents), all would constrain, directly or indirectly, some aspect of consulting or the range of individuals who can practice. Some of the commonly voiced proposals follow.

Outlawing Trial Consulting by Nonlawyers Obviously, the most draconian response to the perceived ills of trial consulting, this measure was proposed by Illinois Senate President James Philip in 1995 (Hanna & O’Brien, 1995), and has some support in the academic community (Etzioni, 1974). A spokesperson for Philip expressed the senator’s rationale: “It’s an inappropriate way to influence the jury system ... The whole role of a trial consultant is to stack the deck” (Hanna & O’Brien, sec.3, at 3). A related proposal, to eliminate the use of jury science (Barber, 1994), would have an identical effect. There have been other calls for eliminating consultants. Typical is this rationale: “They undermine our confidence in the criminal jury system by making the jury selection process appear unfair, and in some cases be unfair. They intrude into the lives of people who are simply fulfilling their civic duty. They institutionalize a system of unequal justice making it far more difficult for the People to prosecute wealthy defendants successfully. They make it far more likely that the side with money, either the prosecution or the defense, rather that the side with justice, will prevail” (Geller & Hemingway, 1997, p. 296).

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Unless advocates of this proposal could demonstrate something singularly p­ ernicious about consulting, they would leave themselves open to a reductio ad absurdum challenge: If consultants are banned on grounds of unfair advantage, why not also expert witnesses, investigators, and all the other professions in the proliferating field of litigation support? As a practical matter, legislators who vote to outlaw constituents’ livelihoods tend to have short political careers.

Reducing or Eliminating Peremptory Challenges Perhaps the most frequently made trial reform proposal is to reduce or eliminate peremptory challenges (see, e.g., Adler, 1994; Bader, 1996; Hastie and Pennington, 1996). Peremptory challenges are the primary means by which the information derived from voir dire comes to fruition. (Thus, this proposal is often made in concert with limiting attorney-conducted voir dire.) Eliminating or restricting the attorney’s ability to utilize the trial consultant’s advice in strategically picking the composition of the jury would undercut scientific jury selection. Instructively, the British have eliminated peremptory challenges. As with the proposal to limit attorney voir dire, this reform proposal has a long and contentious past. Proponents maintain that the peremptory challenge: (a) is a limited privilege, neither constitutionally protected nor essential to a fair trial; and (b) perpetuates forbidden stereotypes (Bader, 1996). Trial attorneys claim that reducing or eliminating peremptory challenges would immeasurably impair their clients’ rights to impartial juries. If peremptory challenges were eliminated or severely restricted, it is likely that at least some trial judges would adopt a more expansive definition of the challenge for cause as an anodyne. This expansion could have two aspects: the courts could be more lenient in allowing questioning directed at uncovering bias sufficient to permit a challenge for cause; and the grounds which constitute cause could be expanded. Two 2005 U.S. Supreme Court cases have fueled the effort to constrain peremptory challenges and, at least in the case of one justice, the movement to abolish the peremptory challenge altogether. Both cases involved the prohibition of using race as the grounds for a peremptory challenge, as established under the landmark Batson v. Kentucky case (1986). In Johnson v. California (2005), the Court struck down California’s test for racial bias in jury selection as too difficult for those contesting a peremptory challenge. And in Miller-El v. Dretke (2005), the Court expressed exasperation with the way the Texas courts ignored obvious racial bias when the Texas prosecutor, using peremptory challenges, excused ten of eleven blacks from the panel in a trial of a black defendant. The first case spoke to state law, the second case to the application of law. Together, they strongly suggest that federal courts will exercise greater review of state decisions involving claims of racial bias in jury selection where the state has not taken more aggressive steps to investigate such claims.

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Batson set up a three-part judicial test of claimed racial bias in the exercise of peremptory challenges. Step one requires the claimant to establish a prima facie case of discrimination. Step two requires the prosecutor or other party exercising its peremptory challenges to establish a race-neutral reason for the peremptory challenge. Step three requires the claimant to prove that the neutral reason offered is pretextual. In his concurring opinion in both cases, Justice Stephen Breyer explained the intrinsic defects of the Batson test: At Batson’s first step, litigants remain free to misuse peremptory challenges as long as the strikes fall below the prima facie threshold level…At Batson’s second step, prosecutors need only tender a neutral reason, not a “persuasive or even plausible” one…And most importantly, at step three, Batson asks judges to engage in the awkward, sometimes hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge (Miller-El v. Dretke, pp. 267–268).

Breyer went on to cite studies and reports indicating that, despite Batson, the discriminatory use of peremptory challenges remains widespread. A good example is the jury consultant questionnaire used by the O.J. Simpson criminal defense team. This instrument contained several questions directly addressing the respondents’ views on race, racial tendency towards violence, and comfort level around members of different races (Anderson, 1998). This led Breyer to suggest that peremptory challenges represent an anomaly. “On the one hand, the Court has widened and deepened Batson’s basic constitutional role…On the other hand, the use of race- and gender-based stereotypes in the jury selection process seems better organized and more systematized than ever before” (Miller-El v. Dretke, 2005, p. 269). Breyer concluded: “[T]he law’s antidiscrimination command and a peremptory jury selection system that permits or encourages the use of stereotypes work at cross purposes” (Miller-El v. Dretke, pp. 271–272). Breyer’s solution was to call for the abolition of the peremptory challenge. In this proposal, he joined former Justice Thurgood Marshall’s concurring opinion in Batson and a considerable list of cited law review articles proposing the elimination of the peremptory challenge. The long-term impact of Breyer’s call on the trial consulting profession remains to be seen. But it certainly engendered some immediate criticism of scientific jury selection. When Breyer observed that notwithstanding the Court’s ban on ethnic jury-packing, race- and gender-based stereotyping in jury selection was more systematized than ever, he was clearly referencing jury selection consultants. No interpretation was necessary for a remark later in his opinion: “The ‘scientific’ use of peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government” (Miller-El v. Dretke, p. 273). Joining Breyer in his critique were several editorials. A Los Angeles Times editorial, for example, charged, “peremptory challenges…turn jury selection into a classic game that is supported by a massive industry of consultants peddling dubious theories” (“Laying Down a Challenge,” 2005, p. B12).

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Many of those advocating elimination or reduction of peremptory challenges also offer a variety of complementary remedial reforms. Montoya (1996), for example, suggests the use of “blind” peremptory challenges, whereby litigants would conduct voir dire by questionnaire only. Panelists would remain anonymous and not be obliged to answer questions about race and gender, per Batson and its progeny. Thus the exercise of the peremptory challenge would be made without the attorney’s or consultant’s knowledge of the sex or gender of the panelist. Another commentator has suggested allowing (at least) criminal defendants to affirmatively select some of their jurors from a pool of qualified jurors (Anderson, 1998). Under this proposal, the prosecutor could respond by making a choice of his or her own, limited by the number that the defendant has directly selected. The intent is to remove the concoction of race-neutral reasons for prosecutorial peremptory challenges, and to enhance respect for and legitimacy of the trial outcome. A middle ground between retention of peremptory challenges and abolition (with or without proposed alternatives or palliatives such as expansion of challenges for cause) is a reduction of the number of peremptory challenges. Jonakait (2003) provides a rationale: “Attorneys would quickly learn that most often even if a group were disfavored, distinctions among members of that group would have to be made and the least disfavored ones allowed to be sworn…[Such] individual distinctions among the group …is precisely what Batson seeks” (p. 170). The author posits that a reduced number of peremptory challenges would still retain their presumed benefits: party control and greater public acceptance. A concern among proponents of retaining the peremptory challenge is that its elimination would lead to an increase in hung juries because certain individuals who are obstructionists or stubbornly erratic, but not necessarily biased, could not be removed. One solution proposed for this eventuality is to give the judge the power to remove such people, i.e., judicial peremptory strikes (Weinstein, 1997). An alternative would be to relax the unanimity requirement, where applicable. In England, hung juries were a concern when peremptory challenges were abolished, and brought some pressure to relax the unanimity rule (Jonakait, 2003, p. 169). Those advocating the retention of unreduced peremptory challenges identify potential problems attributable to abolition of peremptory challenges. They reference the situation where an attorney is asking probing questions of a jury panel member whom the attorney suspects is at least unconsciously biased. If the responses aren’t sufficient to result in grounds for a challenge for cause, the attorney may well be left with an antagonized juror. Eliminating the peremptory challenge removes the attorney’s insurance policy in that predicament. Finally, elimination of the peremptory challenge would necessarily result in the devolution of more – and some would suggest too much – power to the trial judge. Although trial consultants offer several services other than assistance with jury selection, that is the service most associated with consultants (see Chap. 2 by Crocker and Kovera) – in no small part due to popular books and movies. Elimination or even reduction of peremptory challenges would presumably have a commensurately negative effect on consulting revenues. Professor and trial consultant Gary Moran has called the peremptory excusal system the raison d’être for

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jury selection consultants (2001). If the Supreme Court heeds Breyer’s fillip to ­reconsider the constitutionality of the peremptory challenge, it would not be inconsistent with Batson to eliminate peremptory challenges or develop a more rigorous test for countering a prima facie showing of impermissible bias, i.e., a new, fortified Step two. More likely this will be a matter resolved on a piecemeal basis by state legislatures.

Limiting Voir Dire Questioning by Attorneys Scientific jury selection usually seeks to extend the voir dire questioning by attorneys who heed their consultants’ suggestions (see Chap. 2 by Crocker and Kovera). Such questioning is the best way for trial consultants to confirm their hypotheses and assumptions about the prospective jurors. But as the O.J. Simpson case demonstrated, this extended voir dire can be quite lengthy and excessive, and can allow the side with the most (or best) resources to obtain an advantage. More importantly, the object, as Hastie and Pennington (1996) charge, may be to create substantially unrepresentative panels. Thus they and others (e.g., Barber, 1994) advocate reforms to limit voir dire questioning by attorneys. One potentially important downside of such a reform may be less candor in the responses of prospective jurors. In a study by Jones (1987), attorneys were more successful than judges in eliciting candid disclosures from prospective jurors based on a comparison of juror responses to written and oral questioning. Under the proposal to limit voir dire questioning, the trial judge would conduct most of the voir dire, with attorneys retaining the right to submit proposed supplemental questions. The debate over judge- vs. attorney-conducted voir dire has been robust for quite a while, waged in literature and legislature. In general, trial attorneys claim that restrictions on their voir dire inhibits their ability to make informed use of their peremptory challenges, and that judges are not as motivated or effective in fleshing out potential juror bias. Judges counter that attorneys use voir dire for improper purposes, such as conditioning potential jurors, and unnecessarily prolong trial time (Strier, 1996). California and a number of other states have enacted restrictions on attorneyconducted voir dire in criminal cases, motivated in part by the desire to safeguard juror privacy (see “Limiting or Barring Pretrial Investigations of Jurors and Prospective Jurors,” below). California’s changes came about via Proposition 115 the so-called Crime Victims’ Justice Reform Act, in 1990. Under this law, voir dire is conducted by the judge, relegating attorneys to supplemental inquiries upon a showing of good cause (California Civ. Proc. Code 223, 1990). Further, voir dire questions are only permitted “in aid of the exercise of challenges for cause” (Id). Trial attorneys, consultants and other advocates of relatively open-ended attorneyconducted voir dire maintain that limiting attorney voir dire will increase the

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likelihood of peremptory challenges based on gross racial and gender stereotypes and biases. That would confound the goal of Batson and its progeny. Put differently, restrictions on attorney-conducted voir dire are at cross-purposes with a system that allows for peremptory challenges.

Allowing Discovery of Consultant Surveys Requiring the sharing of the trial consultant’s raw survey data via discovery (Barber, 1994; Hastie, 1991; Herbsleb et al., 1979) would vastly mitigate, if not neutralize, the competitive advantage of hiring a consultant. Release of the survey findings would plausibly increase the chances of impaneling an impartial jury, and relieve the perceived and/or actual unfairness of one-sided use of such information. The work product doctrine has been interpreted as barring (see, e.g., People ex rel. Keller v. Superior Court, 1959; People v. Heard, 1975) or limiting (People v. Aldridge, 47 Mich. App. 639 1973) the discovery of juror information obtained by attorneys or their consultants. Herbsleb et al. (1979) argue, however, that American Bar Association standards make the doctrine applicable only to the opinions of attorneys and their agents (e.g., trial consultants), not facts; and further, that social science data such as survey results fall outside the scope of this doctrine and should be discoverable. Most recently, the federal Third Circuit Court of Appeal ruled that trial consultant communications are shielded from discovery under the work product doctrine (In re Cendant Corporation Securities Litigation, 2003). The work product doctrine is governed by a uniform federal standard set forth in Rule 26(b)(3) of the Federal Rules of Civil Procedure, and includes documents and other tangible things prepared in anticipation of litigation by a consultant. But the Third Circuit noted that the work product doctrine is not an absolute bar to discovery of such materials. Work product can be ordered produced upon a showing that the party seeking discovery has “substantial need” of the materials in preparation of the party’s case and that the party is unable without “undue hardship” to obtain the substantial equivalent of the materials by other means (p. 663). The Cendant case dealt specifically with “opinion work product” by the consultant which the court said was entitled to greater protection under the federal rules, i.e., in addition to the need and hardship showings, discovery of this type of work product was discoverable only upon a showing of rare and exceptional circumstances. Consultant surveys, therefore, would still be discoverable under the lesser standard. Rather than brave the vicissitudes of judicial rulings on an ad hoc basis, another possible route to the opposing trial consultant’s surveys would be through a change in the American Bar Association’s Model Rules of Professional Conduct (MRPC). Sahler (1996) proposes the following new rule and related comment: 3.45: Use of Consultants and Use of Social Science Research in Jury Selection A lawyer shall not use jury selection information in a manner that is inconsistent with the responsibilities of a lawyer or in a manner that undermines faith in the jury system.

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Comment A central goal of the legal profession is to ensure the impartial and efficient ­administration of justice. This rule seeks to prevent an advocate’s utilization of information from jury consultants and social consultants to predetermine the jury’s verdict. The use of social science information to select jury members may harm litigants and may undermine public confidence in our judicial system. Using information in an attempt to predetermine the outcome of the verdict suggests an inability to fulfill the lawyer’s professional role as a public citizen concerned with the fair administration of justice. Where juror questionnaires or other community attitudinal surveys are used by either the defense, the prosecution, [or the plaintiff], the … data should be made available to both sides [prior to jury selection] (p. 404). (Emphasis supplied.) It should be noted that the language in the proposed comment, “the lawyer’s professional role as a public citizen concerned with the fair administration of justice,” is apparently drawn from the Preamble of the MRPC, where it is more hortatory than prescriptive. Nevertheless, it provides the philosophical foundation for the proposed rule. Although the narrow issue of attorney work product will likely dominate future debate over this proposal (see, e.g., arguing for discovery, Barber, 1994; Moskitis, 1976; and against discovery, Davis and Beisecker, 1994), a more disinterested perspective is possible. If either party convinces a court that impaneling an impartial jury will be problematic, the court has a nonpartisan alternative to an immediate change of venue or venire. The court could order, at its discretion, a community survey by a neutral party, such as a court-appointed master or other expert, under Rule 706 of the Federal Rules of Evidence, or Rule 53 of the Federal Rules of Civil Procedure, or comparable state statutes, that would be available to both parties. Willging (1986) describes numerous instances where courts have used this power in appointing experts to assist in pretrial activities.

Requiring Disclosure of the Use of Trial Consultants The comment to Sahler’s proposed new rule for incorporation into the MRPC also requires litigants to inform the court and the members of the venire at the outset of the trial when they use consultants. Such disclosure could serve several purposes. It would give the opposing party the opportunity to hire its own consultant, and the indigent criminal defendant the chance to request the court to appoint one (see below). It would also facilitate study into the use of jury science (Barber, 1994). Gold (1987) suggests this proposal be effected by giving the judge the power to compel disclosure. The disclosure could be made through a pretrial memorandum to the judge describing the advice received from the consultant and plans to implement that advice at trial.

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This is a middle ground proposal, neither banning nonattorney consulting nor allowing discovery of the consultant’s research. But it invites the same criticism as a ban, i.e., consistency requires a justification of why all other forms of litigation support should not be disclosed. One possible consequence of a required disclosure of consultants might be that suggested by Adler (1989): an attorney who did not respond to such a disclosure by hiring his or her own trial consultant might open himself or herself to a charge of malpractice.

Limiting or Barring Pretrial Investigations of Jurors and Prospective Jurors Several avenues could be explored to protect the privacy and sensibilities of jurors and prospective jurors from pretrial investigations and unduly invasive questions in court. One would be to outlaw, as they do in Great Britain and Canada, intrusive pretrial investigations. A second would require that jurors receive notice: (a) that their names are to be made public, (b) of the right to petition to suppress that information, and (c) of the right to insure that their in-court responses to voir dire questions are kept private. That would at least keep inquiries into their private lives within the confines of the courtroom (Weinstein, 1997). A third would bar questionnaires and all other forms of questions which inquire into subjects unrelated to impartiality, or which are otherwise harassing (Gordon, 1995). A fourth would be judicial measures that indirectly but effectively prevent juror investigation. Augmenting the size of the venire, for example, would sharply decrease the feasibility of juror investigations; it is one thing to investigate thirty persons, quite another to investigate three hundred. Alternatively, the judge could withhold the juror list until immediately before trial (Gobert & Jordan, 1990). An attorney deprived of juror identities until a few days before trial lacks adequate time to investigate. (A counter-argument would be that advance jury lists promote fair trials by aiding the determination of whether jury pools truly represent a fair crosssection of the community). Assuming the most conservative proposals have the best chance of adoption, the notice requirements seem the most likely option to be acted upon. A British-type outright ban is an extreme remedy, and a question-by-question review of all juror questionnaires would be highly subjective and occupy an unacceptable amount of the judge’s time. Juror privacy concerns are being discussed in several jurisdictions under the rubric of a “Juror Bill of Rights.” For example, the District of Columbia’s Council for Court Excellence’s recommendations included informing the jury when serious security concerns cause the court to order that the jury be anonymous, and allaying concerns in all other instances by providing jurors with full explanations of exactly what specific information about them is made available and to whom (1998, p. 22). Recently, the American Bar Association (ABA, 2005) has addressed the issue of juror privacy in its Principles for Juries and Jury Trials, a report by the ABA’s

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American Jury Project. Their recommendations, expressed as “Principles,” may serve as guidelines for the states. One of these principles asserts that juror privacy must be balanced against party and public interest; to that end, judges must ensure that juror privacy is reasonably protected. Nevertheless, the Principles advise that closed voir dire be granted only “after a finding by the court that there is a threat to the safety of the jurors or evidence of attempts to intimidate or influence the jury” (Prin. 7.A.1.). The courts are further urged to permit private juror questioning or questionnaires in appropriate circumstances. Finally, surveillance of jurors or prospective jurors is banned without first obtaining express court permission (Prin. B.). The ABA invited the ASTC to comment on an earlier draft of the Principles. One responsive comment recommends that juror candor will be increased “if jurors are permitted to indicate whether they wish any special information they have been asked to provide in a sequestered voir dire or in a juror questionnaire to remain private” (ASTC Comments on ABA Jury Standards). If implemented, some of the proposed reforms in this aspect of trial consulting may well have an impact, albeit unintended, on other trial consulting activities. Just as there is a relationship between a diminution of the permissible scope of attorneyconducted voir dire and the effective use of peremptory challenges, so there is a relationship between the permissible scope of attorney-conducted voir dire and pretrial investigation of prospective jurors. Greater privacy rights for jurors in court could well increase the use of pretrial investigations of prospective jurors to obtain the information deemed necessary to conduct jury selection in an informed manner (Weinstein, 1997).

Requiring State Licensing of Consultants The incidence of incompetent practitioners is hastened when, as with trial consultancy, the field of practice has no entry requirements (Cutler and Stinson, Chap. 15). Incompetence begets lawsuits. The question is whether malpractice litigation will remain the sole protection for users of trial consulting services – a remedy that comes into play only “after the blood is on the ground.” If the experiences of professionals in the related fields of law and psychology were a reliable barometer, the eventual licensing of trial consultants would seem likely, if not inevitable. As the number of practitioners expands, consumers (mostly trial attorneys) will probably demand some external indicia of minimum education, knowledge, or ethical standards before committing thousands of dollars for the services of a consultant. Knowledgeable consumers should be attracted by the security that a licensing body provides: an established minimal academic background and/or certification; penalties against those who falsely advertise themselves as licensed; and sanctions against licensed practitioners who violate the standards of the licensing body. If it is within its mandate, a licensing body would also ensure that licensees continue to educate themselves as to new developments in their field. Gordon (1995) suggests that once trial consultants are required to be

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licensed, they would be responsible for reporting the unethical conduct of their ­colleagues to the licensing body and the court. Although there have been published debates arguing for (Strier, 2001) and against (Moran, 2001) licensing, there has been little movement on the licensing question. If trial consultants are to be subject to more rigorous and clearly defined standards, more likely they will come internally from the ASTC. In a 1999 survey of the ASTC membership, 29% favored state licensing of trial consultants, 55% opposed it and 16% were uncertain (Strier and Shestowsky, 1999). In an openended comment, one of the survey respondents who opposed licensing rhetorically inquired why trial consultants should be licensed if expert witnesses aren’t. This is an apt observation, as both the expert witness and the trial consultant are on the hiring attorney’s “team,” retained to persuade the factfinder. Legitimate reasons justify discriminating between the two services, however. Unlike trial consultants, expert witnesses do not work covertly. They are identified to the court as witnesses for one of the litigants. Moreover, expert witnesses are subject to cross-examination – perhaps the single greatest due process protection offered by the adversary system – and to the scrutiny of the factfinder. Another distinction is that because expert witnesses are verifiably expert, incompetence is ordinarily not an issue. Conversely, trial consultants need not have any verifiable credentials, a state of affairs commensurately raising the prospects of incompetence. Self-interest militates in favor of opposing licensing for many trial consultants: they may not meet the minimum qualifications, e.g., education or experience tests; or they may be averse to the time and costs of obtaining additional qualifications required by the state. By the same token, one can postulate some benefits of licensing for the upper-echelon consultants who are most likely to survive the winnowing out of the licensing process: higher public regard for state licensees, less competition, and higher fees. Potential benefits and drawbacks attend the licensing proposal. On the salutary side, licensing would establish minimum entry standards of competence and professional ethics. A licensing body could stipulate educational credentials, passage of state sanctioned tests, experience or some combination of the three as the prerequisite to practice. Additional public protection (against the unskilled or unsavory practitioner) could be provided through the ongoing oversight of the licensing body or other designated monitoring office. Licensing would undoubtedly lend legitimacy to, and enhance the stature of, the profession. As trial consulting proliferates and comes under growing public scrutiny, particularly as a consequence of unpopular jury verdicts, the state’s imprimatur would be invaluable. A final projected benefit of licensing is the possible stimulus to scholarship. Once trial consulting is licensed, educational training programs will almost certainly follow. Those programs housed in traditional, accredited colleges and universities should produce commensurate scholarly research. On the down side, licensing carries potential drawbacks. Limiting entry to any field drives up the fees of the field’s practitioners. As their prices escalate, trial consultant services become even less accessible, exacerbating an already sensitive issue. Licensing requires a licensing body, another bureaucracy with attendant costs.

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Initially funded by fees charged to licensees, these costs would ultimately be passed on to the consumers of trial consulting services – private attorneys, governments, and corporations – and eventually borne by clients, constituents, and customers, respectively. Coupled with the expectable increase in trial consulting prices, these additional bureaucratic costs would represent a significant diminution in the affordability of trial consulting services for most litigants. Another anticipated objection to licensing trial consultants would target the presumed preeminent goal of the licensing process – the competency of the licensee. If trial consulting is more art than science, then no amount of education, test-taking, or experience will guarantee competence. By the same token, licensing would freeze out many gifted consultants who cannot or will not meet the necessary conditions for licensing. Exponents of this position would urge the marketplace as the optimal device for ferreting out incompetence (see, e.g., Moran, 2001). The response to this objection would be that licensing is no more a guarantee of competence than the utilization of a competent trial consultant is a guarantee of ultimate success at trial. Licensing in any field only warrants that certain minimum criteria in education, experience, etc. have been met. Moreover, the rigor of the licensing requirements tends to directly correspond with the risk to the public from incompetent licensees: the more that public safety or health is at stake, the more demanding the licensing prerequisites. That is why physicians must serve a year of internship (in addition to passing the medical board exams) in order to practice, whereas attorneys need only pass a bar exam. Incompetent trial consulting does not directly jeopardize public safety or health, but licensing could offer an appropriate degree of assurance that the licensee has met and continues to meet prescribed standards that suggest, if not guarantee, a base level of competence. Similarly, licensing and a regulatory body do not guarantee the ethics of those licensed. Nevertheless, they do delineate a clear ethical framework for licensees. Using typical bar entrance requirements as a paradigm, applicants could be required to take a course in the accepted ethics and standards of the profession, and pass an ethics exam and/or demonstrate a record absent of moral turpitude before being admitted to practice. Once licensed, the practitioner could be subject to license suspension, revocation, or other sanctions by an oversight board.

Upgrading Professional Standards History indicates that the state is more likely to step in and regulate where selfgovernance appears inadequate to protect the public. The ASTC – or another group speaking for the profession – may feel compelled to fortify its existing Code of Professional Standards. Alternatively, the ASTC could limit its membership to those with prescribed minimum experiential and educational backgrounds and training. Another provision that could inure to the benefit of the profession and the public is a required percentage of pro bono service from members. The existing Code merely encourages pro bono service, and in terms so broad as to be unclear

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if the exhortation could be satisfied by other services. If the ASTC adds to the rigor and specificity of its ethical and professional standards, it might induce the respect and trust of jurors, clients, judges and the general public, assets of inestimable value to a profession whose good will may be waning. Robert Gordon (1995), a psychologist and attorney, has proposed the following ten ethical principles for trial consultants: 1) Trial consultants must possess both a thorough knowledge of the legal system and an expertise in the research methodologies used in behavioral sciences; 2) Trial consultants must respect the legal system; 3) The privacy and sensibilities of jurors and prospective jurors must be respected; 4) It is the responsibility of the trial consultant to assist in the seating of fair and impartial juries; 5) Trial consultants must strive to ensure that the testimony of witnesses is truthful and accurate; 6) The rights of clients must be protected; 7) Trial and settlement scientists must provide objective and reasoned opinions; 8) Trial consultants shall contribute to the amicable resolution of disputes; 9) Trial consultants shall accurately and truthfully present their credentials to the bar and the judiciary; 10) Trial consultants shall keep current with research and theory in the field and seek to advance and share their knowledge. (p. 34).

These principles exceed, in varying degrees, all comparable constraints in the ASTC Code. Conversely, the ASTC Code contains standards with no counterpart in Gordon’s list. For example, the ASTC Code proscribes publication of a win-loss record and misrepresentative advertising, bars conflicts of interests, and exhorts its members to perform pro bono services annually (1997). Conceivably, an amalgam of these two sets of standards will eventuate. For the past several years, the ASTC membership has engaged in a debate over whether the society should certify trial consultants. The society’s tentative definition of “certified” is an individual who: (1) is a member in good standing of the society, (2) possesses appropriate academic training relating to the development of skills and communication, persuasion, law, the humanities or social sciences, (3) possesses the knowledge, skills and attitudes to practice effectively and abide by the ASTC standards of practice, (4) possesses a specified period of active experience as a trial consultant, and (5) engages in a prescribed number of hours of continuing education in trial consulting each year. Some of the more salient arguments can be culled from the debates. Advocates of certification contend that it would create a baseline level of competency, to the extent that competency is inferable from a practitioner with the requisite academic training, experience and continuing education requirements. That, in turn, should improve the public perception and credibility of a profession which now allows anyone to become a trial consultant simply by proclaiming himself to be one. Unlike licensing, certification does not preclude self-annointment, but the lack of certification would give prospective clients pause. Conversely, certification would bestow the imprimatur of the profession’s sole organization. A related benefit would be to assist clients in deciding upon which trial consultant to use. Finally, there is the concern that without certification and whatever protections that provides, the state may step in and regulate the profession, as it does in the related fields of law and psychological counseling. In that event, prerequisites would be imposed from without. Probably all consultants would agree that they, not

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the state, should decide what the criteria should be for credentialing. According to this view, to be proactive is to be preemptive. Opponents of certification have several counter-arguments. Since many members will oppose certification, some bitterly, imposing certification requirements would factionalize the ASTC membership. Although this argument does not speak to the putative benefits of certification, the virtual certainty of divisiveness resulting from certification sets a floor-level, “Is this worth it?” minimum for the benefits. Another frequent opposing argument is that “certified” does not mean “qualified.” The premise is that trial consulting is as much an art as a science, and therefore particular academic training, experience, and continuing education do not guarantee efficacy. A cognate fact is that the backgrounds and methodologies of trial consultants are quite diverse. Opponents say that certification cannot and should not promote consistency of practice, and that consultants’ backgrounds are too diverse to be included in a common set of certification criteria. The proposed academic requirements would be a disadvantage to those with degrees or backgrounds in the humanities instead of social science. The aforementioned 1999 survey of ASTC members found that 57% had academic specialization in psychology only or in psychology and another area, 16% in communications, and the rest in various other areas, including law, political science, and theater (Strier & Shestowsky, 1999). Opponents also point to the practical difficulties of implementing the proposed certification, especially the continuing education component. Critical questions arise: What should be taught? Who would teach it? One of the opposing arguments that directly disputes one of the claimed benefits relates to prospective clients. Many opponents say that clients do not and would not care about certification. Almost all clients are attorneys, who (presumably) would be savvy consumers. They will rely instead on experience or word-of-mouth. This is essentially a “let-the-market-decide” argument. In a 2005 internal survey of the ASTC membership, 47% favored certification, 37% opposed, and 16% were unsure.1 Certification would thus seem slightly more likely than not. If the society does ultimately pursue certification, a key remaining question is how it would evaluate the prescribed prerequisite qualifications (academic training, experience, etc.) of applicants for certification. Three possible methods were put to the membership in the internal survey: 37% favored board review by an elected panel; 36% favored a test; and 57% favored affirmation by the applicant that he/she meets the established criteria. Should the society choose the most popular method per the survey, it is uncertain how much credibility or impact such a certification will carry. One of the questions on the survey was whether “a means of assessing attitudes including ethical commitments relating to the consulting field” should be included if the ASTC pursued certification. (The responses were evenly divided: 50% yes; 50% no.) The issue of ethical standards within the profession arises in various contexts. A recent example involves motions for change of venue based upon community Per 6/22/05 email from Kenneth Broda-Bahm, chair of the ASTC Credentialing Task Force.

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surveys of public attitude. These surveys may demonstrate so much prejudice against a party as to make obtaining an impartial jury problematic. In that event, the survey results may support pretrial motions to request a change of venue or venire (i.e., a redrawn panel), to expand the scope of voir dire, or to increase the number of peremptory challenges. Considerable research addresses various aspects of studies used to support motions for a change of venue, such as a report on the biasing effect of pretrial publicity (e.g., Fulero and Penrod, 1987; Kramer et  al., 1990; Moran and Cutler, 1991; Nietzel & Dillahay, 1983; Padawer et al., 1975; Simon, 1980; Steblay, Besirevic, Fulero, & Jimenez-Lorente, 1999). Public opinion surveys can run amiss in some instances, however, because the trial consultants who conduct them lack relevant ethical and educational requirements. A recent illustration occurred in the Scott Peterson case. After a change of venue was granted, students of the university professor who conducted the survey without adequate training and time admitted that they had falsified portions of the survey by providing fabricated results (Stapley, 2004). On other occasions, judges are forced to assess the credibility of conflicting surveys, a condition made possible by the nebulous standards and the wide array of factors used. Shahani (2005) calls for the use of court-appointed trial consultants to eliminate these problems, but not before reforms are implemented to improve educational requirements and ethical standards in the trial consulting profession. Witness preparation is another area implicating the need to upgrade the ethical and professional standards of trial consultants. As noted earlier, attorneys often contract out witness preparation to consultants who are not regulated by the ethical standards applicable to attorneys under the MRPC. Yet witness preparation is an area ripe for abuse (LeGrande & Mierau, 2004).

Appointment of Trial Consultants for Indigents Not all of the reform proposals regarding trial consulting are constricting. From its public interest beginnings, trial consulting has evolved into high stakes poker, affordable only by the wealthy. Indigent criminal defendants often petition the court for experts such as trial consultants, private investigators, and psychologists on grounds that they are necessary for due process in their case (Buser, 1994). Judges occasionally oblige. In the 1993 trial of the two men charged with the attempted murder of Reginald Denny, Los Angeles Superior Court judge John Ouderkirk appointed Jo-Ellan Dimitrius of Litigation Sciences, Inc. to assist the defense (Cox, 1993). Judge Ouderkirk’s appointment may signal a return to jury consulting pioneer Jay Schulman’s original goal of leveling the playing field. Most other state courts have not found trial consultants necessary to the defendants’ due process rights (see, e.g., Spivey v. State, 1984). Thus court funding for trial consultants remains at the discretion of the trial judge. However, in Ake v. Oklahoma (1985), the U.S. Supreme Court held that the state must provide an indigent defendant with a psychologist when the sanity of the defendant is a substantial factor at trial. Courts

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favorably disposed to funding requests of indigents for trial consultants will look for authority to Ake or the federal Criminal Justice Act of 1964, which allows ­indigents to request expert services which are “necessary to an adequate defense” [18 U.S.C. sec. 3006 (e)]. Clearly, the strongest case for appointment under either the “adequate defense” principle or Fourteenth Amendment equal protection of the law would be when the prosecutor has retained a consultant. Despite the prognostications of some (see, e.g., Pierce: “[T]he requirement of providing jury consultants to indigent criminal defendants is coming soon,” 1990, p. 14), almost all efforts by indigent criminal defendants to have the court appoint a jury consultant have failed (Hartje, 2005). Alternative routes to the same goal would be a pro bono ethical requirement for continuing membership in the ASTC, or for a license – if licensing is ever required by the state.

Conclusion Courts and legislators have not as yet addressed themselves to a waxing tension regarding the professional responsibilities of trial consultants. On the one hand, we have witnessed the vertiginous growth in the number of trial consultants and the cost of their services. On the other hand, that growth has been realized devoid of any enforceable standards or regulation from within or without. Collectively, these tensions augur changes that may profoundly affect the profession.

References “Laying Down a Challenge” (editorial, June 15, 2005). Los Angeles Times, B12. Adler, S. (1989, Oct. 21). Consultants dope out the mysteries of jurors for clients being sued. Wall Street Journal, 1. Ake v. Oklahoma, 470 U.S. 68 (1985). American Bar Association. (2003). Model rules of professional conduct. American Bar Association. (2005). Principles for juries and jury trials. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Society of Trial Consultants. (1997). Code of professional standards. Phoenix: ASTC. Anderson, J. (1998). Catch me if you can! Resolving the ethical tragedies in the brave new world of jury selection. New England Law Review, 32, 343. ASTC Comments on ABA Jury Standards, www.astcweb.org, last visited 20 Jun 2005. Bader, C. (1996). Batson meets the First Amendment: Prohibiting peremptory challenges that violate a prospective juror’s speech and association rights. Hofstra Law Review, 24, 569–621. Barber, J. (1994). The jury is still out: The role of jury science in the modern American courtroom. American Criminal Law Review, 40, 1226–1252. Batson v. Kentucky, 476 U.S. 79 (1986). Buser, L. (1994, Feb. 4). Indigents’ plea for experts stirs issues of cost and fairness. The Commercial Appeal, A1. California Civ. Proc. Code, sec. 223, as amended 15 Jun 1990. In re Cendant Corporation Securities Litigation, 343 F.3d 658, 2003.

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Council for Court Excellence, Washington, D.C. Jury Project. (1998). Juries for the year 2000 and beyond: Proposals to improve the jury system in Washington, D.C. Cox, G. (1993, May 3). King trial the real story. National Law Journal, 38. Criminal Justice Act. (1964). 18 U.S.C.sec. 3006 (e). Davis, S., & Beisecker, T. (1994). Discovering trial consultant work product: A new way to borrow an adversary’s wits? American Journal of Trial Advocacy, 17, 581. Etzioni, A. (1974, May 26). Threatening the jury trial. Washington Post, C3. Federal Rules of Civil Procedure, Rule 26(b)(3). Fulero, S., & Penrod, S. (1990). Attorney jury selection folklore: What do they think and how can psychologists help? Forensic Reports, 3, 233–259. Geller, L., & Hemenway, P. (1997). Last chance for justice: The juror’s lonely quest. Dallas: NCDS Press. Gobert, J. J., & Jordan, W. E. (1990). Jury selection: The law, art and science of selecting a jury (2dth ed.). Colorado Springs: Shepard’s/McGraw-Hill. Gold, V. (1987). Covert advocacy: Reflections on the use of psychological persuasion in the courtroom. North Carolina Law Review, 65, 481–515. Gordon, R. (1995, Feb. 6). Setting parameters for trial science. Legal Times, A34. Hanna, J., & O’Brien, J. (1995, Oct. 31). O.J. case leads Philip to make a case against consultants. Chicago Tribune, sec. 3, 3. Hans, V., & Vidmar, N. (1986). Judging the jury. New York: Plenum. Hartje, R. (2005). A jury of your peers? How jury consulting may actually help trial lawyers resolve constitutional limitations imposed on the selection of juries. California Western Law Review, 41, 479–503. Hastie, R. (1991). Is attorney-conducted voir dire an effective procedure for the selection of impartial juries? American University Law Review, 40, 703–726. Hastie, R., & Pennington, N. (1996). The O.J. Simpson stories: Behavioral scientists’ reflections on the People of California v. Orenthal James Simpson. University of Colorado Law Review, 67, 957–976. Herbsleb, J., Sales, D., & Berman, J. (1979). When psychologists aid in the voir dire: Legal and ethical considerations. In L. E. Abt & I. R. Stuart (Eds.), Social psychology and discretionary law. New York: Van Nostrand Reinhold. Hunt, M. (1982). Putting juries on the couch. NY Times, 71–72, 82–87. Johnson v. California, 545 U.S. 162 (2005). Jonakait, R. (2003). The American jury system. New Haven: Yale University Press. Jones, S. E. (1987). Judge versus attorney-conducted voir dire: An empirical investigation of juror candor. Law and Human Behavior, 11, 131–136. Kramer, T., et  al. (1990). Pretrial publicity, judicial remedies and jury bias. Law and Human Behavior, 14, 409–439. Lambert, W. (1994, Feb. 4). Trial consultants lose mystique as firms tighten their belts. Wall Street Journal, B7. LeGrande, N., & Mierau, K. (2004). Witness preparation and the trial consulting industry. Georgetown Journal of Legal Ethics, 17, 947–960. Miller-El v. Dretke, 545 U.S. 231 (2005). Montoya, J. (1996). The future of the post-Batson peremptory challenge: Voir dire by questionnaire and the “blind” peremptory. University of Michigan Journal of Law Reform, 29, 981. Moran, G. (2001). Trial consultation Why licensure is not necessary. Journal of Forensic Psychology., 4(1), 77–85. Moran, G., & Cutler, B. (1991). The projected impact of pretrial publicity. Journal of Applied Social Psychology, 21, 345–367. Moskitis, R. (1976). The constitutional need for discovery of pre-voir dire juror studies. Southern California Law Review, 49, 597–634. Nietzel, M., & Dillehay, R. (1983). Psychologists as consultants for change of venue: The use of public opinion surveys. Law and Human Behavior, 7, 309–335.

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Osborn v. U.S., 385 U.S. 323 (1966). Padawer, A., et al. (1975). The impact of pretrial publicity on jurors’ verdicts. In R. Simon (Ed.), The jury system in America (pp. 5–25). Beverly Hills: Sage. People ex rel Keller v. Superior Court, 175 Cal. App. 2d 830 (1959). People v. Aldridge, 47 Mich. App. 639 (1973). People v. Heard, 58 Mich. App. 312 (1975). Pierce, J. (1990). Selecting the perfect jury: Use of jury consultants in voir dire. Law and Psychology Review, 14, 167. Post, L. (2004, April 19). High-profile trials keep jury consultants busy. Palm Beach Daily Business Review, 17. Sahler, D. (1996). Scientifically selecting jurors while maintaining professional responsibility: A proposed model rule. Albany Law Journal of Science and Technology, 6, 403–404. Saks, M. (1987). Social scientists can’t rig juries. In L. Wrightsman (Ed.), In the jury box: Controversies in the courtroom. Beverly Hills: Sage. Shahani, V. (2005). Change the motion, not the venue: A critical look at the change of venue motion. 42. American Criminal Law Review, 93, 118–120. Simon, R. J. (1980). The impact of pretrial publicity on the jury. In R. J. Simon (Ed.), The jury: Its role in American society (pp. 6-). Lexington, MA: Lexington Books. Spivey v. State, 319 S.E.2d 420 (Georgia 1984). Stapley, G. (2004, Jan. 9). Trial moved; survey flawed? Students say they faked poll results. The Modesto Bee, A1. Steblay, N. M., Besirevic, J., Fulero, S. M., & Jimenez-Lorente, B. (1999). The effects of pretrial publicity on juror verdicts: A meta-analytic review. Law and Human Behavior, 23, 219–235. Stolle, D., et al. (1996). The perceived fairness of the psychologist trial consultant: An empirical investigation. Law and Psychology Review, 20, 139–173. Strier, F. (1996). Reconstructing justice: An agenda for trial reform. Chicago: University of Chicago Press. Strier, F. (2001). Why trial consultants should be licensed. Journal of Forensic Psychology, 4(1), 69–76. Strier, F., & Shestowsky, D. (1999). Profiling the profilers: A study of the trial consulting profession, its impact on trial justice and what, if anything, to do about it. Wisconsin Law Review, 1999, 442–499. Weinstein, D. (1997). Protecting a juror’s right to privacy: Constitutional constraints and policy options. Temple Law Review, 70, 1–51. Willging, T. (1986). Court appointed experts. Washington, D.C.: Federal Judicial Center.

Chapter 18

A Lawyer’s View of Trial Consulting Juliana Reno

Introduction Most lawyers have never used a trial consultant. We see them on TV, and in movies. There, the trial consultants are invariably hired by millionaires who have been charged with murder, or by Fortune 500 companies facing potential damages that rival the cost of running the federal government. These are not our real clients. These are not our real lives. In real life, we represent individual clients who have incomes below $100,000 per year. In real life, we represent corporate clients with under 100 employees. It looks to us – the lawyers on the street – like the barrier to hiring a trial consultant is money. Our clients do not have extra money, and they do not want to spend any more of it on a lawsuit than absolutely necessary. (We do have some clients who say they are not worried about the cost. They say, “We want to fight this on principle.” Principle holds vastly less sway after the client has spent $20,000 in legal fees. And $20,000 only takes a client a little of the way into a case). Meanwhile, we know that 95% of cases settle out of court. If there is only a 5% chance that the case will go to trial, it seems foolish to spend money on a trial consultant. Money only appears to be the problem. The real problem is ignorance. Lawyers are ignorant of the actual cost of hiring a trial consultant, of the range of services that a trial consultant can provide, and of the skills that an experienced consultant brings to the table. Because lawyers do not have solid information about the real benefit of a trial consultant, lawyers have no motivation to find out the real cost of a consultant. As a result, lawyers blithely assume that a consultant will fail the costbenefit analysis. This chapter will explore the ways in which trial consultants may add value to a real lawyer’s representation of her clients. Because most lawyers’ experience with trial consultants comes mainly from TV and in movies, lawyers believe that trial consultants primarily arrange for mock trials, often with technological gizmos that J. Reno (*) Kutak Rock LLP, The Omaha Building, 1650 Farnam Street, Omaha, NE 68102, USA e-mail: [email protected] R.L. Wiener and B.H. Bornstein (eds.), Handbook of Trial Consulting, DOI 10.1007/978-1-4419-7569-0_18, © Springer Science+Business Media, LLC 2011

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track the mock jury’s reaction to various witnesses and arguments. In truth, trial consultants can and do provide a much wider variety of services, services that are useful even in those cases that do not progress to trial.

Initial Case Assessment Should I take this case? Is it worth it? Once, my supervising partner (who had a hard time saying no to any potential client) was considering whether to take a new case. I argued that the case was weak on liability and weak on damages and didn’t he think it would be a good policy to only take that cases that were strong on both counts, or at least strong on one?! Assessing a case is a skill, and one that is particularly important for plaintiffs’ lawyers. Plaintiffs’ lawyers generally work on a contingency. These lawyers do not bill hourly; instead, they earn a portion of any settlement or verdict that their client receives. These lawyers have to spend their time wisely. They can only afford to work on cases that are reasonably likely to generate a worthwhile recovery. Typically, case assessment begins when a potential plaintiff comes to a lawyer’s office for a 1-hour meeting, for which there is no charge. The lawyer listens to the plaintiff’s story – how an employer fired a plaintiff unfairly, or how a terrible doctor injured the plaintiff, or perhaps how a careless driver ran into the plaintiff. This listening stage is important because, as a senior lawyer once told me, “The case doesn’t ever sound better than it does on the day it walks in the door.” If the lawyer thinks that the story is compelling, and that there is law to support the claim, the lawyer will ask the plaintiff for additional factual information and documents. For an employment case, the additional information may include a job description, employee handbook, and past performance evaluations. For a medical malpractice case, the additional information will usually be medical records. For a car accident case, it may include police reports. When the information arrives, the plaintiff’s lawyer must decide whether to take the case.

Evaluating the Plaintiff The lawyer’s first task is to size up the plaintiff. Is he believable? Will he be appealing to a jury? Will the jury find his story compelling? Most experienced lawyers are comfortable with this task. But some judgment calls are difficult and could benefit from the assistance of a trial consultant. For example, suppose the plaintiff’s face was disfigured in an accident, and that there are no other witnesses, so the plaintiff will need to testify. The lawyer will have to consider whether the jury’s negative reaction to the plaintiff’s disfigurement can be outweighed by another reaction, such as sympathy for the plaintiff’s suffering or approval for the plaintiff’s bravery. Although an experienced lawyer will have a good intuitive sense of the jury’s likely reaction, a trial consultant may be able to locate existing studies or data on more ­specific details. For example, studies will probably show that a 60-year-old male

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p­ laintiff with a facial scar from a shard of windshield glass provokes a different ­reaction than a 20-year-old female plaintiff whose entire face was burned when her car caught on fire. If time permits, the trial consultant can conduct a jury survey. In a jury survey, the consultant poses a number of written questions to potential jurors – adults in the relevant jurisdiction who would be qualified to serve as jurors if called. These surveys can be conducted online in order to save cost and reach a larger pool of participants. The consultant then gathers and analyzes the results. The disfigured plaintiff is an unusual case. It is fairly common, however, for a lawyer to be confronted with a potential case that has both strong positives and strong negatives. The plaintiff has a good story, but is himself an unsympathetic figure, hard and brittle. The plaintiff is handsome and charming, but has a history of making unconfirmable medical complaints. When there are strong opposing forces, the value added by a trial consultant increases.

Researching Verdicts Lawyers learn that they must file most cases in a specific place, and with a particular court in that place. For example, suppose that a car accident occurs in Omaha, NE, that all of the parties live in Omaha, and that the plaintiff received medical care in Omaha. In this case, as in many cases, there is really only one court in which the attorney can file the lawsuit. • The lawsuit must be filed in state court, rather than federal court, because there is no federal question jurisdiction (none of the issues arise from federal law) and no diversity jurisdiction (all of the parties come from the same state). See 28 U.S.C. § 1332 (federal question) and § 1332 (diversity). • The lawsuit must be filed in the jurisdiction that includes Omaha, because all of the parties and events occurred there. See Neb. Rev. Stat § 25-403.01. • The lawsuit should be filed in District Court, rather than County Court, because the County Court can only award damages up to $45,000. See Neb. Rev. Stat. § 24-517(5).1 In this example, the names of the courts and the dollar limit are specific to the Nebraska state court system. Other states have different names, limits, and systems. If the lawyer knows the court in which she or he must file, a trial consultant can aid the case assessment process by researching recent verdicts in similar cases in that court. Verdicts can almost always be researched the old-fashioned way – going to the courthouse and poring over files. Many courts use some sort of indexing or software system to distinguish civil cases from criminal cases, and different types of civil cases from each other. In addition, some jurisdictions have local publications that report verdicts. Commercial verdict-reporting services cover other jurisdictions.  The dollar limit was $45,000 through July 1, 2005, and thereafter is set by the Nebraska Supreme Court. At the time of this writing, the limit is $52,000.

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By locating and summarizing the prior verdicts, a trial consultant provides the plaintiff’s lawyer with information that is useful in deciding whether a particular case is worth taking. For example, some locations are notoriously stingy with ­certain types of cases. In Omaha, for example, when a slip-and-fall case goes to trial, the plaintiff almost never wins. If an Omaha plaintiff’s lawyer knows this information, the lawyer will tend to assign a lower dollar value to all slip-and-fall cases and will know to accept only slip-and-fall cases with clear liability. Can’t lawyers just research jury verdicts themselves? Or use an associate or paralegal? Certainly. In fact, the “we-can-handle-it in-house argument” is frequently raised as a reason to not hire a trial consultant. There are at least three counterarguments. First, an experienced trial consultant already knows where to look for the requested information. The trial consultant does not need to waste time learning the applicable computer system or locating the relevant reports, websites, or services. Second, trial consultants can more easily preserve the lawyer’s anonymity. Attorneys will not recognize a consultant as an affiliate of any particular firm. When you send an associate to research car accident verdicts at the local courthouse, the legal community will know what your firm is doing. The value of a consultant increases if the research will require personal phone calls to others in the legal community. When you hire a consultant to gather information, no one knows who wants the information, or why. Moreover, the consultant is more likely than your employee to get information from your competitors, simply by saying, “I’m a trial consultant doing a study of jury trends.” Third, trial consultants are independent contractors. They can work when all of the firm’s employees are swamped with other work. When their work is finished, the financial outlay ceases. Depending on the lawyer’s needs and budget, and depending on the available data, trial consultants can gather information concerning prior verdicts to varying levels of specificity. As described above, a lawyer may need to know about verdicts in a certain type of case, such as slip-and-falls. However, a lawyer may also want to know about verdicts involving a certain type of plaintiff, such as minority females, or a certain type of defendant, such as pawnshops. More personally, a lawyer may need to know the relationship between the verdicts and out-of-town lawyers. More than one lawyer has taken an excellent case to trial in a nearby town, only to discover that she has been “hometowned,” meaning that she has lost because, well, the juries in that town only give “wins” to local lawyers. If there is no data available, or if the lawyer’s questions have a high degree of specificity, the jury survey discussed earlier is an excellent alternative.

Choosing the Jurisdiction In the Omaha car accident described above, the lawyer could file that case in only one court. However, in some cases attorneys have a choice of any one of a number of different jurisdictions. For example, suppose that a car driven by a man from

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Des Moines, IA, hit a car driven by a man from Kansas City, MO, and that the accident occurred in Omaha, NE. In this example, one could file the lawsuit in either Omaha or Des Moines. If the damages are over $75,000, the lawsuit could be filed either in federal court or in state court. See 28 U.S.C. § 1332. The choice of jurisdiction is one of the few choices which the client usually does not care for. The lawyer, based on largely strategic reasons, usually makes the choice. Clearly, these strategic reasons involve more than just verdict trends. Nevertheless, verdicts are a relevant variable in the choice of jurisdiction, and more importantly, a variable that most lawyers will not be able to assess on their own. Counsel can file federal class action lawsuits against a corporate defendant, generally speaking, in any jurisdiction where the defendant is located. See 28 U.S.C. 1391; 7A Fed. Prac. & Proc. Civ. 3d § 1757. There are a number of procedural considerations – the plaintiffs will want to file in a jurisdiction with easy class-certification rules – but the verdict trends are also likely to play a large role in choosing a jurisdiction. The conventional wisdom is that juries in New York, California, and Texas are generous, while juries in New England are stingy. A trial consultant can help a lawyer get beyond these well-worn stereotypes to information that is more specific by researching verdict trends or conducting jury surveys in the potential jurisdictions.

Pretrial Maneuvering Once the case is filed, trial consultants become important to the defendant as well as to the plaintiff. Just as the plaintiff can use verdict research to determine whether to take the case, the defendant can use verdict research to determine the value of the case. Defense lawyers, like plaintiffs’ lawyers, want to know what type of verdict usually results from similar claims brought in this court.

Profiling the Judge In many jurisdictions, there is one important difference between the plaintiff’s evaluation before filing the claim and the defendant’s evaluation after the plaintiff brings the case. Once the claim is filed, it goes to a specific judge, who will handle all of the pretrial litigation, or the trial itself, or both. The identification of the judge presents another opportunity for trial consulting, this time by either plaintiff or defendant. In large firms and litigation department, it is common to see internal emails that say something like this: “Our client, Acme Manufacturing, has been sued in the district court for Big County, in Square State. The plaintiff alleges that Acme failed to provide adequate warnings on its product. Judge Wopner is taking the case. Does anyone have experience in front of Judge Wopner, especially in a products liability

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case? If so, call me ASAP.” Usually, this type of email generates a few phone calls, and some very helpful information. But what if no one calls back, because no one has appeared in front of that judge before? What if a lawyer doesn’t work at a large firm and isn’t able to draw on the experience of a large pool of peers? Some working knowledge of the judge is critical to evaluating the case, creating a litigation strategy and advising your client. For example, one of the judges before whom I have appeared has been described this way: “Not a rocket scientist, not a scholar. Can smell a lie a mile away, and punishes liars without fail, primarily by ruling against them. Has an excellent sense of substantive justice. Will split the difference whenever possible. Does not appear to read briefs and rules on motions quickly. Rarely ends the case on a motion for summary judgment.” Another judge is completely different: “Near retirement. Not in a hurry to rule on anything. Fancies himself a genius. Likely to dispose of a case, if possible, on a technical and procedural argument.” Both judges take about 5% of their caseloads to trial, but cases in front of the first judge tend to settle fairly early, while cases in front of the second judge tend to be settled only after his ruling on dispositive motions. In criminal trials, where the client’s liberty is as stake, knowing something about the judge is even more important. In my jurisdiction, the County Court handles misdemeanor cases. Left to its standard scheduling system, the County Court will schedule all of the defendant’s proceedings (arraignment, pretrial motions, trial, sentencing) in front of the same judge. However, if the defendant is willing to plea bargain, the defendant can appear before any of the judges, plead guilty, and receive a sentence. In other words, you can choose the judge that sentences the defendant. It is simply imperative, in these circumstances, to research the judges before whom your client will appear. One judge (“Judge A”) was quite active, locally, in domestic violence prevention. A colleague once said to me, “If your client is charged with a crime involving domestic violence, I think it is almost malpractice to let a client be sentenced by Judge A. Judge A just hammers domestic violence offenders.” Another judge (“Judge B”) was a recovering alcoholic and had a particular approach to crimes involving intoxication. Judge B generally would order probation, usually with the condition that the defendant attend Alcoholics Anonymous and submit to random drug tests. This is a light sentence, but if the defendant violated probation (even once, even just a little), Judge B would impose the maximum sentence allowed by law for violation of probation. A trial consultant can create a profile of the judge in two ways. First, the trial consultant can research the judge’s opinions. I do not know of any jurisdiction that publishes all of its trial court opinions. Westlaw and federal reporter systems publish trial court opinions selectively, and many jurisdictions do not publish state trial court opinions at all. The published opinions are relatively easy to research. The unpublished opinions, however, usually require in-person review of the court’s paper files, or computer access to the court’s electronic files. Second, the trial consultant can research the judge’s background, temperament, and sensibilities through personal interviews with local lawyers. Some consultants already have detailed files on the local judges. One of the advantages to using the trial consultant, as opposed to the law firm’s internal email, lies in the trial consultant’s ability to

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interview a broader range of lawyers. Most law firms either ­represent ­plaintiffs or defendants.2 When I send an internal email, I only learn what defense lawyers think of a judge, or only what plaintiffs’ lawyers think of a judge, but not both.

Choosing Between a Jury Trial and a Bench Trial Most people have heard that they are entitled to a trial by a jury of their peers. Most people do not know, however, that the constitutional right to a jury trial only applies in criminal cases. The law does not always guarantee a jury trial in civil cases. See generally, 9 Fed. Prac. & Proc. Civ. 2d § 2302. In other instances, the parties to the suit may choose to waive their rights to a jury trial. In these latter instances, both plaintiff and defendant will need to decide whether they want the case to go to a jury or to a bench trial. The conventional wisdom is that juries are more generous than judges are, and that juries tend to make less rational decisions than judges do. In my experience, the conventional wisdom is correct, but of limited utility. The conventional wisdom only informs the judge-or-jury decision when the case is emotionally charged, such as a car accident case. In many other types of cases – eviction of a shopping center tenant, breach of a contract to supply widgets – the conventional wisdom is of no help at all. Some years ago, I tried a case for a client who I will call “John.” John owned and operated a grocery store in rural Kansas, in a town of 3,000 people. A regional food distribution company delivered the majority of John’s inventory, and this relationship was working well. Then, a national food distribution company that I will call “BigCo” purchased the regional company. BigCo revamped and reorganized the warehouse that supplied John’s store, and the trouble began. Over the next 6 months, John’s orders from BigCo were late and incomplete – the ice cream was melted, or the milk was missing entirely. Sometimes, the BigCo truck arrived over 12 hours late, at one of the peak shopping hours, or when no one was available to help unload. After various unsuccessful attempts to resolve the situation, John canceled his contract with BigCo and signed up with a different  Each state has adopted conflict-of-interest rules, many of which make it difficult, as a practical matter, to represent both plaintiffs and defendants in a particular type of case. See, e.g., State ex rel Creighton Univ. v. Hickman, 512 N.W.2d 374 (Neb. 1994) (interpreting Canon 9 of the Code of Professional Responsibility). In addition, many lawyers find that they can only maintain their credibility with the court by picking one “side” of an issue. For example, consider employment discrimination cases. One fact pattern, which arises repeatedly, involves a supervisor who treats a subordinate badly – lots of screaming and yelling, throwing files, unjustified criticism – and the subordinate is in a protected class. If I represented the company, I would argue that the supervisor’s behavior did not constitute discrimination, because the supervisor treated everyone equally badly. If I represented the subordinate, I would argue the opposite. Unless I decide to represent only companies, or only individual employees, I could easily make one argument to the court on Monday, and the opposite argument to the court on Tuesday, in a different case. Most lawyers find arguing both sides to be untenable and limit their business accordingly.

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distributor. Ultimately, though, John had to sell the store. The sale price, John believed, was less than the store would have been worth if he had sold it before BigCo entered the picture. John then became a successful life insurance agent, making more money than he had with the store. BigCo sued John for unpaid invoices. John countersued BigCo for the profits that he lost, before he sold the store, due to BigCo’s failure to fill orders. John also sought “future lost profits” – the profits that he would have earned if he had not been forced to sell the store. Should we try this case to a judge or to a jury? The jury option was tempting. John invoked a strong sympathetic reaction. Technically, the client was John’s company, but I could humanize that by having him and his wife testify about how the store was a family business, where all of the kids pitched in and helped. Moreover, BigCo didn’t really have a local constituency. It wasn’t particularly philanthropic or a player in the community. All this indicated that I should go for a jury. But there was another side to the story. My client was seeking not just past lost profits, but also future lost profits. To prove those, I would need to put an expert accountant on the stand to go through the numbers – pretty dry stuff. In addition, I would need to explain to the jury why my client should get these future lost profits, which opposing counsel called “damages for a store that John didn’t own.” To top it off, opposing counsel was a much more experienced trial attorney. He was bound to do better than I would with a jury. At this point, I really could have used a trial consultant. I already had a good idea about which elements of my case were strong and which were weak. But I didn’t know the extent of those strengths or weaknesses. I didn’t know what the average juror would understand, absorb, or care about. I needed some help handicapping the case. By handicapping, I mean giving the client estimated odds for various results. I believe that it is the lawyer’s job to give the client these odds (not all lawyers agree with me) and that it is then the client’s job to weigh the risks and choose between the options. In John’s case, for example, I could have said something like this: • You have an 85% chance of getting past lost profits from the judge, and a 75% chance of getting past lost profits from the jury, because the judge will understand the case better. • You have a 10% chance of getting future lost profits from the judge, and a 25% chance of getting future lost profits from the jury. The jury is less likely to understand the concept, but if it does, it will feel badly for you, but the judge will not. • Trial to the judge will take 1 day and a trial to the jury will take 3 days. Put another way, a jury trial will cost three times as much as a trial to the judge. My handicapping was based on personal experience, instinct, and some basic logic. I could have used some help from a trial consultant whose handicapping would have been based on empirical data. Perhaps a jury survey would have helped to determine whether the jury would be able to understand the technical aspects of the case or would be likely to award future lost profits. For the curious among you – John chose to have the case tried to a jury, because it was his best chance of getting a big win. The cost of trial was not a factor for him,

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because I was handling the case on a contingency. The jury gave us, essentially, a tie. They awarded BigCo the amount of its unpaid invoices; John received the profits that he lost before he sold the store, but no future lost profits. These awards almost canceled out – John received about $1,500. Neither side appealed.

Testimonial Evidence: Preparing Witnesses Trials are surprisingly boring. They do not reveal skeletons in the closet. In fact, most witnesses are bad witnesses. They aren’t exciting, or sexy. They are frightened, and stilted, and afraid they will say the wrong thing; or they are loud, and angry, and convinced that whatever they say is the right thing. Early in my career, I worked on a case where we represented a man with brain poisoning, suing his employer for not providing a safe workplace. We also represented the man’s wife, who had brought a claim for “loss of consortium.” The defendant wanted to take both of their depositions on the same day. This is a typical request and saves some cost, so we agreed. The man’s deposition went first, with the wife in attendance. The cross-examination of the man rattled the wife very badly, because she anticipated that she would be subject to the same treatment. When time came for the wife’s deposition, the defendant’s lawyer skipped most of the preliminaries and quickly reached the heart of her consortium claim. Q: “Has your sex life with your husband changed at all since his alleged brain poisoning?” A: “No.” That was the wrong answer. But more importantly for my point, that answer was not accurate. The medical records were very clear about the couple’s intimate relations before and after the accident. This witness was not a liar; she was simply petrified. So, we took a break, took her into the ladies’ room, tried to calm her down, and then restarted the deposition. It was no use. No matter what question, she kept looking at her hands in her lap, and answered “No.” We dropped the consortium claim. We had thoroughly prepared this witness, the wife, for her deposition. Obviously, the preparation had been for naught. Why? Looking back, I believe that the woman was overwhelmed on a number of levels. The lead counsel on the case had explained all of the “rules” of testifying, such as “Don’t guess at the answer. If you don’t know the answer, say ‘I don’t know.’” The witness was afraid that she would break one of rules. The lead counsel had previewed some of the questions that the opposing attorney would likely ask and had helped craft the best truthful answer. The witness was sure that she would not remember the “right” answer. The lead counsel was a woman who was tall, rich, attractive, aggressive, and extremely self-confident. The witness was petite, of modest means, shy, and insecure. She felt that she could never measure up, and that she would disappoint the lawyer regardless of her performance. So, she simply failed to perform at all. A skilled trial consultant could have helped us avoid this entire dynamic, or at least she or he could have mitigated its impact. There is frequently friction, tension,

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or an outright personality conflict between the lawyer and one of the witnesses. If the ­lawyer and the witness cannot work together, then the lawyer either will need outside assistance or will need to accept that the witness will be a wild card. One need not wait until friction emerges, however, to engage a consultant for witness preparation. There is no particular reason that the lawyers themselves should prepare witnesses. The lawyer’s role is to identify the questions that are likely to emerge during the examination, and to identify the evidence that the witness needs to supply through testimony. Someone else can do the rest of the preparatory work. A trial consultant with psychology credentials is an excellent choice. Credentials here may mean formal training, counseling experience, or simply a talent for communicating on a one-to-one level. The consultant should know how to put the potential witness at ease, thereby increasing the chance that the witness will understand and retain instructions. The consultant should also be skilled at presenting critical information in its most digestible and memorable form. In short, a valuable consultant will make the entire process more witness-friendly and therefore more successful. Some lawyers may have these skills, but lawyers who are successful in the courtroom generally have a skill set that aims more toward public performance. They relate primarily to the judge and jury as an audience, not to the witnesses as individuals.

Demonstrative Evidence: Creating Exhibits We have all had this sort of experience: we are at work, reading a document that sets a physical scene. In my work, this is usually a case or a deposition, but there are other, similar documents in different fields. At some point in the detailed description, we become overwhelmed with the minutiae. We stop halfway through, grab a paper and pencil, and begin again. This time, we begin drawing out the scene as we read. Now that we have a graphic representation of the words, the details are not so overwhelming and the structural elements of the space become clearer to us. We have just created, and shown the power of, demonstrative evidence. Lawyers know that demonstrative evidence can be a real boon. It can highlight or underscore important points, or as in the example above, can clarify what would otherwise be left muddled. We also need to recognize that we live in a world of entertainment, where the length of your average television show has shortened attention spans. Demonstrative evidence creates a diversion from the drone of testimony. Juries like it, in other words, because it keeps them entertained. Nevertheless, demonstrative evidence carries risks. Primarily, the risk is that it will turn the trial into a sideshow. The jury, distracted by the demonstrative evidence, could stop caring about the facts at issue. This first danger – that the demonstrative evidence is too good – precedes a second danger – that the demonstrative evidence is bad and costs the lawyer some credibility. In the O.J. Simpson murder trial, the prosecutor asked Mr. Simpson to try on a glove found at the scene

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of the crime. The glove didn’t fit, and the prosecutor lost credibility. Done well, demonstrative evidence walks a careful path between these twin dangers. For demonstrative evidence to be successful, two conditions must exist. First, there must be a need for emphasis or clarity. Second, the demonstrative evidence must actually meet that need. If the case involves a complicated series of events, and the parties dispute the timing of one of the events, a timeline will probably make things clearer. If the case involves a dispute about whether Susan’s ankle was permanently injured when her chemistry experiment exploded, an oversized periodic table of the elements is beside the point, but an oversized model of the bones, tendons, and nerves in the ankle and foot would be very helpful. A trial consultant can both identify the need and the item that will fill the need. Identifying the need for demonstrative evidence is difficult for lawyers, particularly if they lack colleagues. Sometimes, we lawyers know our own case so well that we fail to recognize what information might be difficult for an outsider (a juror) to digest. We don’t realize that here, in this particular spot, we need to pause, rest, emphasize, summarize, explain, and above all, demonstrate. Identifying the items that will fill the need is not easy either. A consultant brings psychology to bear: • Will a picture be better than words? Like students, jurors all learn differently and may need to have information presented in a different mode. • A photograph or a diagram? Too much realism can be distracting or can show just how confusing the situation really was. • How big? Uncomfortable photos can become grotesque when oversized. • What about a chart? A timeline? A video recreation? It all depends on how much the testimony needs to be organized in order to be digested. If necessary, the trial consultant can test a variety of types of demonstrative evidence with focus groups, and through this testing, establish the most effective mode of presentation. Trial consultants learn to identify the most common barriers to the jury’s easy understanding of evidence. An experienced consultant will know how to guide the jury over those hurdles. Using demonstrative evidence as that guide is one of the cleanest, fastest way to the legal finish line.

Settlement There are two aspects to a likely recovery – the trial value and the settlement value. These values are not the same, and they interrelate in curious ways. The trial value depends on how well the lawyers and witnesses can sell the case to the trier of fact.3  Cases involve legal issues and factual issues. The judge decides the legal issues. For example, “Does Missouri or Nebraska law apply?” is usually a legal issue. The “trier of fact” decides the factual issues. As explained above, this could be either the judge or the jury. For example, “Was the light red or green when the defendant drove through the intersection?” is a factual issue.

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In determining the trial value, a consultant can help assess the inherent talent of these actors and the strength of the story that the actors will tell. I will talk about this more in the next section. The trial value forms a backdrop for the settlement value. The settlement value depends on the psychological and social situation of the parties, including how well they tolerate the risk of a trial. Let me illustrate with a few examples. For a time, I worked on a series of cases for an insurance company that issued long-term disability policies. Because long-term disability policies insure continuing, ongoing losses, the insurance company conducted periodic reviews of individual files to confirm that the claimant remained disabled. During these reviews, the insurance company sends out forms to the claimant and his or her physicians, then gathered and evaluated the responses. In one case, the claimant and her physicians did not provide much in the way of a response. Because the claimant had not shown proof of continuing disability, the insurance company denied benefits. The claimant sued. The claimant’s attorney and I had worked against each other before, and the settlement discussions were unusually frank. He opened the bidding by calculating the total expected benefits and discounted that figure based upon the claimant’s risk of losing the case and her risk of passing away before receiving all of the benefits. I responded by telling him that although his calculations were not unreasonable, his bottom line figure made no economic sense for my client. In order to provide the policy’s benefits for the claimant, the insurance company would need to “reserve,” or set aside, less than the number he had named. I offered the claimant a much lower figure. He said that he could not recommend accepting the offer. I told him I understood, but that he should advise his client that if the matter did not settle, the insurance company would continue to conduct periodic reviews of the case. From my review of the medical records, I knew that the claimant feared and hated these periodic reviews, and I was hoping that her aversion to them would lower her settlement threshold. I was right, and the case settled the next day. Social factors can be as powerful as psychological factors. I once worked on a case where our client alleged that his employer had pressured him to issue a false environmental report. He refused, and the firm fired him. In the settlement conference, we tried to show how much future income our client had lost as a result of being fired. The former employer had a different perspective. It had calculated the damage that the company would suffer if my client’s information went public. This amount was considerably less than the damages we had calculated. Nevertheless, publicity was the company’s primary concern. It was more than willing to deal with the costs of a lawsuit and to take its chances with the jury, but it would settle in order to avoid the publicity fallout. My client was less willing to bear the risk of a loss at trial, and the case eventually settled for a number that was much closer to the company’s number than to my client’s. As these examples demonstrate, lawyers often serve as amateur psychologists. We read tea leaves and guess at motivations. At some point, however, it is prudent to call in the professionals. Trial consultants are well equipped, both by virtue of their training and by virtue of their experience, to identify and analyze the psychosocial factors that will influence a case’s settlement value.

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Mock Trials Themes and Arguments I remember watching a television show where a businessman was accused of murdering his wife. His legal team hired a trial consultant, which arranged for a jury to listen and react to the themes and arguments that the legal team was considering. As the attorney ran through the arguments, each member of the test jury worked a handheld device. It looked somewhat like a dimmer switch. Sliding the tab up indicated approval and sliding the tab down indicated disapproval. The team watched a monitor, which superimposed over the face of the attorney and showed a bar graph of sorts, representing the jury’s fluctuating approval ratings. As I recall, the “fine, upstanding gentleman” themes received very low scores, but the “no body, no crime” theme scored well. This portrayal may have little to do with reality, but it highlights another way in which we can trial consultants: to assess and choose between potential themes and arguments. It is important to recognize that themes and arguments, for most lawyers, are the most enjoyable part of preparing for trial. We think to ourselves, “This is why I went to law school.” The last thing we want to do is hand over the fun stuff to a consultant. At the same time, the lawyer needs a sounding board and a partner for this important task. In large firms, lawyers use their colleagues. There is nothing wrong with this practice. In fact, it is a great idea. However, lawyers get busy, and so do their colleagues and the task may not actually happen. Moreover, lawyers at small firms simply do not have colleagues to consult. An experienced trial consultant may actually be a better option than a colleague, for three reasons. First, trial consultants are likely to have a greater breadth of experience than a colleague. Why? A consultant does not have to prepare an entire trial, and therefore, generally works on more trials, in a typical month, than does a typical lawyer. Sure, there are probably litigators who spend most of their working days in a courtroom. Most litigators, however, do not conduct more than six jury trials per year. Second, where the trial consultant has training in psychology, the consultant has substantive knowledge that the colleague lacks – how a juror with a particular background or bent will receive a particular theme or argument. Third, the trial consultant can provide more than simply advice and experience. The trial consultant can actually create empirical evidence to show which theme is the most resonant, or how the attorney should make a particular argument, or which witnesses will have the strongest corroborating effect. A full-blown mock trial is not necessary to gather this evidence. A panel can be assembled for more limited purposes, or the jury survey can be used to gather responses on narrower questions.

Mock Juries Everyone knows the value of a dress rehearsal – practice makes perfect. If all a lawyer needs is practice, she or he can cobble together a live audience without

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c­ alling upon a trial consultant. One of the young associates in my office practiced his opening and closing statement for six of the secretaries. However, if a lawyer needs more than a mere audience or needs someone to analyze what “plays” best, then a consultant is more appropriate. In the theater, a show “previews” for 1 or 2 weeks before its official “opening night.” (Some close while still in preview, hence “We bombed in New Haven.”) By the time a show goes into previews, the rehearsing is finished. The story and the characters are already established, the set and props are complete. Now the cast and crew need to know what works for an audience and what doesn’t. In previews, lines are rewritten, scenes are lengthened or cut altogether, and the blocking is changed so that the funny bit of business gets a bigger laugh. The purpose of previews is to find the play’s weaknesses and, with appropriate alterations, to sharpen the play’s message and enhance the theatrical experience. Jury surveys and mock trials serve the same purpose. In previews, one gauges audience reaction indirectly – by watching for body language and by listening for applause. In a jury survey or mock jury, one gauges audience reaction much more directly. In a jury survey, one presents different arguments or evidence to the survey participants, and then has access to the written survey results. In a mock trial, one typically listens to the deliberations and ­discusses the case with the jurors after they have rendered their verdict. In either situation, the role of the trial consultant is not only to facilitate and organize the event, but also to add value by interpreting and explaining the results for the ­attorney. Jury surveys and mock juries take us one step beyond our intuitions – they give us empirical information about whether this argument, that evidence, or those ­witnesses were actually effective. Listening to jury deliberations is an enlightening experience, and a sobering one. Several years ago, a friend used a mock jury for the first time. At the conclusion of the trial, the jury went to a separate room to deliberate, and my friend settled in near the speakers. Opening the deliberation, one of the jurors told the others to “remember that we [the jurors] write the law.” My friend’s jaw hit the floor. The trial consultant was unsurprised. “Jury nullification,” he said, “we see it all the time.” One of the more frustrating parts of listening to deliberations is hearing the jury struggle with the instructions. The purpose of jury instructions is to explain the law. For example, in a negligence case, the jury needs to know that the plaintiff has to prove four elements: (1) the defendant had a duty to act, (2) the defendant breached the duty, (3) the breach caused harm to the plaintiff, and (4) the amount of the harm caused. Each of those elements has additional instructions to explain it. Unfortunately, the instructions appear in legalese, not English. Lawyers trying the case draft the instructions and the judge revises them. (There are pattern jury instructions also, which are usually drafted by the local or state bar association, which in turn is composed of more lawyers and judges.) Because neither the lawyers nor the judge wants to state the law incorrectly and possibly get the case overturned on appeal, everyone hews very closely to the way in which prior published cases explained the law. The fear is that if we translate these cases into clearer language, an appellate court will determine that we have left out something crucial, and we will have to try the case all over again.

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The net result is that jury instructions are largely incomprehensible and do not, in fact, instruct the jury. We know this. Nevertheless, we assimilate this knowledge in a new way when we listen to a jury struggle to understand the instructions. Our window on this struggle motivates us to look anew at the instructions. The friend of mine who was shocked by the jury nullification comments is a good example. He could not rewrite all of the instructions – as a practical matter, judges simply will not accept such radical change by a lone lawyer – but he did rewrite the one instruction that had particularly confused the jury and that, he felt, was vital to his case. Many of the answers to a lawyer’s questions about the case emerge during mock jury deliberations. Lawyers can obtain additional answers by posing direct questions to the jury during the postverdict jury-polling session. There is a wealth of information that is accessible through direct polling, and much of this information connects back to the other subsections in this chapter: • What information would have convinced you to reach a higher verdict, or a lower one? • Did you know anything already about the parties, the lawyers, or the facts of this case? If so, how did that knowledge affect your decision in the case? • Which witnesses were convincing, and which were not? Why? • Did the lawyers do anything or say anything that troubled you? Was there anything that you thought was particularly well done? • Was the demonstrative evidence helpful? Did you want to see more of it, or less? • Which themes and arguments did you like? Which did you find convincing or at least affecting? Trial consultants can be helpful during jury polling for several different reasons. First, it is helpful to have the consultant rather than the lawyer poll the jury. Scientists have recognized for years that the value of an experiment is undermined when the examiner is also a participant in or the subject of the experiment. Put more plainly, the jury is more likely to give honest responses to a neutral observer rather than one of the participants. Most people are unwilling to criticize a lawyer to her face (though of course some will delight in it). The consultant can synthesize the jury’s comments, objectively, for the attorney. Second, the consultant will have been watching the jury during the mock trial, while the lawyer was concentrating on presenting his or her case. Because the consultant had an opportunity to read the jury’s body language, the consultant will have a good sense of what issues to highlight in the polling. Notably, these issues are probably not the same issues that the attorney would highlight. Most attorneys want to know what they did right – this is human nature. A trial consultant is equally interested in what the team did not do well. Where are the weaknesses in the case? If a trial consultant can bring previously unconsidered weaknesses to the fore, then he or she has provided a huge service. Third, a consultant will know how to craft questions. As any poll-watcher knows, the results of a poll can often depend on the way in which the question is phrased. As a neutral party, the consultant is less likely to ask loaded questions and more likely to target the questions in productive ways.

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Finally, and most importantly, an experienced consultant will know how to f­ acilitate a productive discussion. Discussions do not just happen. I have been to many religious services where the priest, minister, or rabbi decided to forego the weekly sermon in favor of a discussion. Sermonizing skills are very different than facilitating skills, and one person rarely can claim both. Despite the best intentions of all involved, these discussions fell flat. A skilled consultant can coax ­participation, guide the discussion, and motivate interaction toward a productive end. No matter who polls the jury, the lawyer and the trial consultant should have a final debriefing session. I want to know which of the jury’s comments were offered thoughtfully, and which were merely voiced out of a personal need for participation. I want to know which comments the consultant thinks I ought to take seriously, and which I should disregard. I want to know the consultant’s short list – what three things can I do to improve my chances of winning this trial?

Trial Monitoring There is an old, and apt, saying: “One who is his own lawyer has a fool for a client.” Serving as one’s own lawyer eliminates the professional distance that is necessary to evaluate, and manage, the pretrial phases of a lawsuit. The problem escalates exponentially during trial. During trial, even talented lawyers lose perspective. The adrenaline rush of ­competition explains some of this loss. Litigators want to win, just as much as professional athletes and gamblers. Part of winning is keeping a positive attitude and staying motivated. A lawyer’s loss of perspective during a trial also stems from the inherent demands of the courtroom. Before I did my first trial, no one explained to me how completely draining it would be. The bulk of the trial, of course, is witness testimony. During testimony, the lawyer is either asking questions or listening. When a lawyer is asking questions, even when she wrote out all the questions ahead of time, the lawyer is busier than she seems. The lawyer is trying to ask questions in a logical order, to lay foundation for documentary evidence, and to weave in her themes, all while connecting with the witness, the judge, and the jury. When a lawyer is not asking questions, the lawyer is emphatically not resting. For me, this is the most tense aspect of trial. I need to focus intently on the questions, because I must voice an objection to any question, if at all, before the witness blurts out the answer. Once a question is asked, I need to listen carefully to the answer so that I can determine how I might need to follow-up or counter what the witness says. A certain amount of this becomes automatic with experience, but trial is never a relaxing time, never a situation that is conducive to a balanced, objective perspective. In fact, most lawyers will ask any neutral person in the courtroom – the court reporter and the bailiff are favorite targets – for their opinion on the progress of the trial. “How am I doing? Is the jury staying awake? What did they do when that witness started crying?”

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Some time ago, a corporate client asked me to monitor a trial. The issues were similar to those in a case in which the client was embroiled, and the judge was the same. I was amazed at how much more information I could absorb when I was not actually litigating. I could listen to the question-and-answer flow of the testimony without the usual intensity. This left me the luxury of watching the judge and jury, reading their facial expressions and body language. I knew, before either of the lawyers litigating the case, that the late start had infuriated the judge and that he was going to deny the first few requests by both lawyers as a result. (Perhaps that is not “fair,” but it is human, and a factor that lawyers need to reckon with during a trial). Trial consultants make excellent trial monitors. This is especially true if they have a background in both law and psychology. What the litigator needs is not simply a technical evaluation of the legal points won and lost – the litigator needs someone to take the emotional temperature of the courtroom and its inhabitants. The lawyer will use this information in a number of ways. First, the lawyer can make real-time adjustments. If the jury looks confused every time I use the term “force majeure,” I need to find an alternative expression immediately. If the jury is not responding well to a certain witness, I can eliminate any questions that are not absolutely necessary to my case. Second, the lawyer can pass the information to the client, hoping to align the client’s expectations with the likely outcome. Finally, the lawyer can press for a settlement. Cases do settle during trial. Sometimes a witness performs more poorly, or more skillfully, than expected. Sometimes evidentiary rulings bring in or keep out key evidence, altering the playing field that the lawyers had anticipated. Primarily, cases settle during trial because one of the lawyers has miscalculated his chances of success. A trial consultant can help lawyers decide whether they are in that unfortunate position, or more happily, whether their opponent occupies that position. In either case, when a trial unfolds in an unanticipated manner, preverdict settlement is an important option to consider.

Conclusion What will it take for lawyers to use trial consultants more often? Lawyers need to know more, and they need to see more. Lawyers lack basic knowledge about trial consulting. Lawyers need to know more about the services that trial consultants can provide. Consultants need to educate lawyers by explaining that consulting is not only about mock juries. Crass though it may sound, lawyers need to know more about how much consulting services cost. Most lawyers dismiss consultants out of hand, assuming that they are too expensive for the lawyer’s case budget. Without these crucial pieces of knowledge, the lawyer’s cost-benefit analysis will only rarely lead the lawyer to hiring a consultant. Lawyers have rarely seen trial consultants in action. Trial consultants need to hold demonstrations and clinics and offer loss-leader and free services to increase interest. For many lawyers, seeing is believing. Repeat after me: I believe.