Trial by consultant

Part 2

by Jason Gay

There aren't a lot of celebrity clients for Boston-area jury consultants, but there is a lot of work. Lawyer turned consultant Mark Phillips runs his own company, Phillips Consulting, from a sixth-floor office downtown in Post Office Square. Rob Duboff, of Mercer Management Consulting, does jury work out of Lexington. Psychologist Susan Broome keeps a Newton based consulting office. Newton is also home to a branch office of DecisionQuest, run by senior vice-president David W. Davis.

Despite their low numbers and lower profile, jury consultants have been used here off and on since the mid-1970s. The National Jury project -- an Oakland-based, civil-rights-minded consulting group founded by Jay Schulman -- advised the 1975 defense of Susan Saxe, the antiwar activist accused, and later convicted, in the shooting death of Boston police officer Walter Schroeder. Consultants were used in the trial of John Salvi, the man who shot employees at two Boston abortion clinics. Even the Commonwealth of Massachusetts hired a consultant for its victorious 1994 lawsuit against Owens-Corning for asbestos-removal damages in city buildings.

"I think the field is growing here," says Susan Broome, who consulted for the state on the Owens-Corning suit. "When I started in the late 1980s, you really had to educate lawyers that such services even existed."

Because of the state's rigid voir-dire rules, however, Boston's consultants spend less time dealing with the jury-selection process than they would in another state. Instead, they focus on the presentation of a case -- helping lawyers to craft clear, compelling arguments that can be easily understood by a jury. (For this reason, many of Boston's consultants prefer the "trial consultant" moniker to the more common "jury consultant.")

Above everything else, consultants say, the public must understand the case's points, and lawyers must refrain from legalese and acrobatic jargon. This is particularly true in a complex case like a patent dispute, says Mark Phillips. "In cases with a lot of technology, science, and expert witnesses involved, you have extraordinarily complex issues that need to be radically refined and simplified," he says.

At its heart, this case "editing" by consultants has a clear public benefit. A simple approach to presentation helps juries better understand cases, and make for a better-informed deliberation process.

The reverse is also true. If a lawyer cannot make a case clear, says DecisionQuest's David Davis, the jury often drifts out of touch with the salient points of the case.

"Jurors, for the most part, are paying attention to content," Davis says. "But the more complex, boring, and uninteresting a case becomes, the more jurors pay attention to how lawyers dress, whether they uumm and aaah, and those sorts of things. Because that's the only thing they can understand."

INDEED, WHEN it comes to juries, consultants often save lawyers from themselves. Lawyers have plenty of stereotypes about the people sitting "in the box," and some will shape an entire case around these biases. Jury Persuasion, a 1993 book written by DecisionQuest's Vinson and Davis, lists some of the more ridiculous jury stereotypes lawyers have believed in:

* Women with thin lips help plaintiffs.

* Men with "crew cut" haircuts are defense jurors.

* Railroad workers are automatically plaintiff jurors.

* Anyone whose occupation begins with a "p" (a postman, plumber, painter) should not serve on a jury.

All of this, obviously, is bunk. And consultants try to protect lawyers from making any decision based upon these kinds of stereotypes or gut feelings, whether they seem reasonable. Gut feelings about jurors can be hazardous to a case.

To wit: Jury Persuasion recalls a lawyer who kept close watch on a female juror who consistently nodded at him during a trial. The lawyer attached a great deal of importance to those nods. When the woman nodded attentively, the lawyer interpreted it as a sign he was doing well. When she didn't nod, the lawyer assumed that his arguments were failing.

After the trial, however, the woman confided the real reason for her nodding, Vinson writes. She had been high on cocaine, and totally unaware of what was going on inside the courtroom.

Of course, the consultant wants more-empirical evidence than nods; an effective consultant draws on sociology and psychology to rigorously analyze juror behavior. Often, they deal in demographic basics like age, race, and gender. But other times -- depending on resources and the latitude provided by the court -- their research extends to include such background particulars as political affiliation, the books jurors read, and the clothes they wear.

There's little question that this type of information can be useful. The trouble is that only a few can afford it. Consulting, with fees reportedly ranging from $100 to $250 per hour, is mostly for wealthy individuals, or large companies; both love jury consulting. Mark Phillips, currently consulting on several corporate disputes with a combined 1.5 billion on the line, says a company facing a multimillion-dollar judgment in a "high-risk, high exposure" trial, won't hesitate to hire a consultant if a consultant is deemed necessary.

Consultants acknowledge that their talents are beyond the financial means of many clients. Some have attempted to address this shortcoming -- the National Jury Project, in particular, is known for offering low-rate packages in civil-rights cases -- but, in general, jury consulting is not a service used by moderate-income clients.

"What we do is wonderful," says Mercer's Rob Duboff, "but it's expensive."

Does this wonderful but expensive service really give a client an overwhelming advantage in the courtroom? Consider a situation where one side of a legal dispute has hired a consultant at the full rate to provide an exhaustive list of services. One side gets extensive pretrial information about the demographics of the juror pool, prepares its case to fit that demographic profile, and tests it out on demographically-correct mock juries.

Is this fair? In his book The Jury: Trial and Error in the American Courtroom (Times Books, 1994), Stephen J. Adler recounts a remark from sociologist Amitai Etzoni, a well-known critic of jury consultants: " `The affluent people and the corporations can buy it, the poor radicals get it free, everybody in between is at a disadvantage. . . . And that's not the kind of system we want.' "

But that system is already here in Boston, and it's growing. Though DecisionQuest's Davis believes that conservative law firms have been reluctant to hire consultants, others think that the voir-dire system is the real inhibitor. If voir dire is loosened, lawyers are likely to start considering jury consultants even more.

"Our state is really in the dark on voir dire, and that's why I've never used a jury consultant" says Randy Chapman, of the Massachusetts Bar Association. "I have clients that can afford it, but since there is such a limited amount of information you can get during voir dire, it's not really worth it."

Over the years, Chapman says, there have been legislative attempts to change the state laws -- and allow more questioning during voir dire -- but these reform efforts have been unsuccessful. Superior Court judge Richard J. Chin, who heads the SJC committee looking at ways to improve the Massachusetts jury process, agrees that many attorneys and consultants would like to see fewer voir-dire restrictions. But he isn't sure that the public wants to answer more questions.

"I think the public already feels it's a sacrifice to do jury duty," Chin says. "And the more things we do to make them feel uncomfortable, the harder it's going to be to find jurors."

Clearly, judges like Chin aren't excited at the prospect. Abbe Smith, a former Harvard criminal-justice instructor and now an associate law professor at Georgetown, says judges aren't anxious to see jury consulting take hold.

In general, Smith says, judges are like a lot of people on the issue of jury consultants: they're impressed, but they're also skeptical and somewhat scared.

"There's some outright hostility toward jury consultants out there," Smith says. "I've had many judges say to me, `Give me 12 people, put them in a box, and you've got a fair jury.' "

If only it were that simple.

Jason Gay can be reached at jgay[a]phx.com.