Where Your Lawyers Go for Legal Help
from
July/August 2005
by Dan Kaplan
“If it doesn’t fit, you must acquit.” Perhaps the most notorious seven words in the recent history of American law. They referred, of course, to the glove O.J. Simpson couldn’t squeeze onto his hand, and a litigation consultant says she conceived them over a beer one day. Her name is Jo-Ellan Dimitrius; she’s the queen of the field, the most visible, the most widely known, and possibly the most skilled. She was part of O.J.’s “dream team,” and the late Johnnie Cochran thanked her first in his victory speech. She also worked with the defense during the Rodney King trials (another victory for her side) and recently helped with Scott Peterson’s defense (a loss). Despite that verdict, which she says felt devastating, it’s clear that this woman knows her craft.
If you’ve watched Court TV, Larry King Live, or a host of legal shows in the last 10 years, you probably assume that most of litigation consulting is about getting criminals, murderers, and rapists off the hook. It isn’t. Most revolves around civil issues, and the consulting firms that really matter to directors are those that deal with major corporate cases and white-collar crimes. Among the big firms are Doar, which operates out of the New York City suburbs; FTI Consulting, which has offices in most major American metropolitan areas; and DecisionQuest, which is headquartered in Torrance, California, with branches throughout the country. Jo-Ellan Dimitrius’s Dimitrius & Associates of Pasadena, California, ranks as one of a few small but extremely successful boutique firms. Another, Vinson Co. in Los Angeles, is run by Donald Vinson, a well-known jury consultant.
Each company has a stable of Ph.D.’s with expertise ranging from psychology to statistics. And all offer services involving juries. Those can include jury selection—helping counsel first to determine the characteristics of an ideal juror for its side, and then to get people like that into the box while keeping polar opposites out. Or—and this is considered more important nowadays—the companies can assemble “mock juries.” These are focus groups that closely match the composition of the jurisdiction’s jury pool; they participate in mock trials to test the litigators’ arguments, themes, and presentations.
The consultants have graphic artists who create animations, slides, flow charts, and flip boards to help jurors visualize complex legal matters. They have specialists who provide litigators with the latest innovations in technology. Doar has a virtual courtroom featuring cameras and microphones that catch every subtlety of a presentation. FTI has its own roster of expert witnesses from a wide range of fields relevant to corporate law. And DecisionQuest offers “strategic communications,” which helps attorneys address “media and community misperceptions and provides a recipe for creating a positive public image of your client.”
Tom Moore, a partner in New York City’s Proskauer Rose who specializes in complex commercial litigation, says, “It’s very uncommon for me not to use some sort of litigation support.” Representing the New York Times in a 2001-03 case against Lehrer McGovern Bovis, a construction management company, Moore used Doar to help create images that clarified issues for the jurors. The Times had charged that shoddy engineering and construction had caused enormous damage to a new printing facility and was awarded about $17 million. In more lucrative cases, FTI worked with Kirkland & Ellis for the plaintiff in Michelson v. Medtronic, a 2004 patent-infringement fight in Memphis that cost Medtronic Inc. $400 million in punitive damages and $159 million in unpaid royalties due surgeon and inventor Gary Michelson. And Vinson helped famed trial attorney Joe Jamail win a multibillion-dollar award for Pennzoil in its 1985 lawsuit charging Texaco with illegally disrupting Pennzoil’s pending merger with Getty Oil.
A first step in litigation consulting is assessing and influencing a jury. Along with Donald Vinson, Columbia University social scientist Jay Schulman is generally acknowledged as a pioneer of the field. In 1972, a priest named Philip Berrigan and six other Vietnam War protesters stood accused of plotting to kidnap then-national security adviser Henry Kissinger, raid draft boards, and blow up some underground utility tunnels that led to U.S. government buildings in Washington, D.C. Their trial was to take place in Harrisburg, Pennsylvania, which, the prosecutors suspected, was full of people who would love to see those damn hippies hang. Schulman and a bunch of liberal social-scientist friends believed this too, and would have none of it. They conducted a poll showing that eight in 10 citizens of the area had a built-in prejudice against the defendants, who were known as the Harrisburg Seven. The poll further showed the characteristics, such as religious beliefs and reading habits, of the people most likely to convict. Using this research, the defense rejected certain jurors—and that helped hang the jury instead of the hippies. The major charges were eventually dismissed.
The next step was inevitable: If an idea could work to save those seven from the wrath of Harrisburg, then it could probably work to save corporations too. Vinson’s is the name most frequently associated with this next development. Using his marketing toolbox, Vinson created what was called a shadow jury—basically a focus group chosen to match the demographics of the actual jury—that would watch a trial from the shadows of the courtroom gallery. At the end of each day, he would ask the shadow jurors questions to determine which of the litigators’ themes and ideas were getting positive reactions from them and which were not.
The field began to grow. And as the number of players expanded, so did the number of concepts; if you could find out which jurors would be reflexively hostile to your case, then perhaps you could find out which types of jurors would be sympathetic to it instead. The most radiant demonstration of the power of jury composition came at the hands of Jo-Ellan Dimitrius in the O.J. Simpson trial.
Dimitrius, sitting in her cluttered but elegant corner office, is a charismatic six-foot-tall woman whose charm masks her deeply competitive spirit, media savvy, and attraction to some of the most sinister aspects of human nature. “We knew exactly what [kinds of jurors] we were looking for,” she says of the O.J. case. “And we got what we were looking for.”
Her research and intuition had told her she needed a jury composed primarily of black women who got their information from tabloid TV shows, hadn’t gone to college, didn’t like cops, and were not severely shocked at hearing that a man hit his wife. Out of an initial jury pool that was 40% white, 28% black, 17% Hispanic, and 15% Asian, eight of the final 12 were black women. Five of those eight had not been to college, and five tended to believe that severe domestic abuse was not a prelude to murder. One black man, one Hispanic man, and two white women filled out the jury. Five of the 12 felt negatively about police, and nine believed that because O.J. had been a great football player he was less likely than your average guy to chop two people up with a knife.
Dimitrius says that the prosecution “fell asleep at the switch” by ignoring the advice of their pro bono consultant, Vinson, who told them to get a jury that was the exact opposite of the one they ended up with. “I do think there may have been a very different outcome had Don been allowed to work his trade,” she says. Vinson declines to comment.
Even so, not everyone is sold on the value of jury selection. In their definitive book Stack and Sway: The New Science of Jury Consulting, Neil and Dorit Kressel assert, “The best conclusion is that there are cases when jury selection can make a difference, but that such cases are few and far between.”
Most litigation consultants today rely more on the use of mock juries and mock trials that test presentation of evidence. The first problem corporate lawyers face is that they are up against a population that believes corporations are not to be trusted, according to a fall 2002 survey by Vinson Co. The second is that corporate litigation can become staggeringly complicated and boring. As the people at Doar, DecisionQuest, and FTI will tell you, jurors who are not provided with a digestible message will totally miss the point; effective communication tactics using well-crafted visual media may be the only way to keep them alert.
Joyce Mullen, the marketing manager at Doar, recently showed a visitor one such graphic. It was a simple demonstration of an apparently complex insurance-related question: whether the destruction of the World Trade Center’s Twin Towers by two jetliners counted as one occurrence or two. If it was one, the insurance companies would have to pay only once. Two, and they would pay twice. Used by the legal team from Wachtell Lipton Rosen & Katz that was representing Larry Silverstein, who holds a 99-year lease on the site, the Doar graphic elegantly captured a convincing reason to believe it was two. One slide showed a hurricane sweeping across land—a continuous, ongoing force, and therefore one entity—and the other showed the towers: one plane, time-stamped at 8:46 a.m., coming in at an angle, hitting the north building; then the second plane doing the same to the south building at 9:03. The jury told the insurance companies to pay $1.1 billion twice.
Litigation consulting has gone high-tech, and a tour of Doar’s facility in suburban New York is an excellent way to see how far it has come. The place is a festival of closed-circuit cameras, super-fine microphones, huge information databases, and the latest in courtroom-presentation technology. On the first floor are cubicles where the company’s Ph.D.’s and graphic designers sit three to an office; a vice president’s large but windowless office is off to the side. In another section is a virtual courtroom where Doar’s litigation consultants assemble mock juries and conduct mock trials. The room, as its name suggests, looks like one of America’s newer, technologically outfitted courtrooms, except that this one has four cameras and five microphones to document and, with the aid of million-dollar software, transcribe every aspect
of the goings-on. The jurors’ seats are made of comfortable leather, and in front of each is a thin computer monitor. Behind the judge’s chair is a projector screen. To the right and left of the bench are plasma TVs. When a mock jury session is in progress, it can be watched and listened to from anywhere in the building, and Doar has developed the means to stream everything online.
To illustrate how the research works, Proskauer Rose’s Tom Moore explains the various stages. The first involves making an overall, objective assessment of the case: The consultants test your side’s argument on a mock jury to find out whether you have a chance to win. If you don’t, they probe the jurors to learn what the damages would be likely to be if you were to take your losing case to trial. Armed with this insight about potential damages, you can try to soften the blow and settle for substantially less. Moore describes one case he worked on in which this happened. His client, a major financial institution he won’t name, was being sued, and after the mock trial, in which Moore played the plaintiff’s lawyer, “the mock jury asked if they could give more than the plaintiff asked for. The financial institution doubled their settlement offer to make it end.”
With help from Doar research, Moore found a way to simplify one of the complicated central issues in the New York Times’s suit against Lehrer McGovern Bovis. The main reason the Times was suing Bovis was that shortly after Bovis and its subcontractors had completed construction of a new printing facility for the newspaper, the sucking power of mud in the soil yanked off sewage pipes attached to the bottom of the building. “The hardest thing to explain was what this mud is like,” says Moore. “People didn’t understand. How could soil rip something off?” So Doar did some message-testing and came up with a simple comparison: “It was just like a muddy field you can’t get across without your shoes coming off.” The jury understood.
Research is another key element of litigation consulting, and it goes well beyond forensic accounting. Before and after you enter the courtroom, companies like Doar, DecisionQuest, and FTI employ all sorts of technology. Each firm is equipped with a method of scanning all the relevant pieces of paper and sorting through the multitude of electronic data for information pertaining to a case. They can track down which e-mail was sent to whom, precisely when it went out, what it said, and whether or not any post facto tampering occurred. They can reconstruct files you thought you had erased, reconstitute online conversations you thought were long gone, and then take the whole mass, streamline it, show it to counsel, and organize it
in ways that are simple and easy for jurors to understand. With sophisticated presentation software, years-old letters can be called instantly to the jurors’ attention on courtroom screens.
Moreover, if a witness says something on the stand that contradicts an earlier statement—or, say, is covering up a pattern of bad behavior by a company—a technology consultant can have evidence of it immediately available for the cross-examining attorney. Tom Moore loves the power this technology puts in his hands. In an old-school cross-examination, he says, he would need to have numerous copies of hundreds of different documents on hand. Then, to make his point, he would first have to distribute relevant material to judge, jury, opposing counsel, and the witness. And next he would have to make comparisons by referring the people to one document, then another, then back to the first—a process that not only is tedious but might give the witness time to finesse a rebuttal.
Now, says Moore, his technology consultant can press a button and bring those documents to screens in the courtroom, with critical words magnified and highlighted. Says Moore: “It just gives you the ability to lead them by the nose wherever you want to go.”
An additional service unique to DecisionQuest among the consulting firms is “strategic communications,” essentially legally oriented PR. You’re not even in the courtroom yet, but your case is in the headlines, on TV, and all over the Net. You and your company are not being described in flattering terms, and your own PR department is in way over its head. According to Judy Leon, who heads this division and will speak about the work only in broad strokes, DecisionQuest has people who are experts at “crisis communications.” Their job is to take stock of everything that’s being said about your company and then, as Leon puts it, to “find the messages that mitigate the damage” and try to make sure that inside and outside the courtroom, your lawyers and all the involved parties stick to them.
Leon asks herself a question: “Does the profile of a case influence the outcome of the case?” And she answers it: “Absolutely.” It is yet another weapon in the litigation-consultant arsenal.
