Jury Consultants post – Rajaratnam: Are They Worth It?
I was interested to read the The Wall Street Journal’s report that Raj Rajaratnam spent $300,000 on jury consultants before the trial in which he was convicted on all 14 counts of securities law violations. As my teenage daughter might say, “fail”!
OK, I admit that I’m being a bit unfair. From everything I read in the press regarding this trial it would have been astounding if Mr. Rajaratnam had been acquitted. After all, the government had something quite rare in insider trading cases: audiotapes of the defendant, convicting him with his own words. A jury consultant “fantasy team” comprised of Sigmund Freud and a certified psychic probably wouldn’t have been able to help in this case.
Nevertheless, it’s no great surprise that Raj’s attorneys chose to use jury consultants in this case. $300,000 was a drop in the bucket given the “spare no expense” approach taken by defense counsel in this case. Mr. Rajaratnam”s lawyers undoubtedly concluded that jury consultants might help, and couldn’t hurt. The decision to utilize jury consultants probably was a prudent step in minimizing future regret. (“If only we had used a jury consultant our client might not have been convicted! Darn.”).
Trial lawyers have long been deeply divided on the question of whether jury consultants are “worth it.” Some of the consultants’ recommendations in this case (as reported in the WSJ), are so obvious that it your lawyer doesn’t know them without a jury consultant’s advice, get a new lawyer. For example, the Journal reports that the consultantants concluded that jurors who were members of ethnic minority groups were more sympathetic to Mr. Rajaratnam, who was born in Sri Lanka. Hmm . . . . did OJ’s lawyers need jury consultants to tell them that people of color might be more favorably disposed to OJ than whites? I hope not. Lawyers shouldn’t need jury consultants to tell them that people are predisposed to like people like themselves. If my client is an ultra orthodox Jew, I want a jury of the same. If my client is a native American . . . . well, you get it.
There are many “rules of thumb” that lawyers tend to develop to guide them in jury selection, and these are often specific to the lawyer who is picking the jury (or, to be more precise, exercising the right to strike some of the jurors). These rules change with the time -jury selection in Manhattan today is not what it was in mid-19th century New York. However, you don’t need a jury consultant to tell you the obvious. Francis Wellman said this well in his classic, Day in Court, published 100 years ago:
Laboring men prefer their own kind. Each nationality will to some degree stand together. If the advocate is for the plaintiff, he wants to avoid the cold-blooded, narrow-minded, narrow-hearted types; he wants to select young men with warm natures and intelligent faces. One can often read a man’s character in his face, especially after middle life, although it should never be forgotten that an intelligent exterior sometimes conceals a very shallow mind. He should remember that a jury of landlords will deal unjustly with tenants. Farmers will invariably side with farmers. Railroad men have a natural prejudice against those who attack railroads. On the other hand, a dislike of great corporations makes a good plaintiff’s juror. Many a builder or expert mechanic has swayed the whole jury by knowing the case and explaining his version of it to his fellow-jurors. These are all distinctions that are so simple and plain that even mention of them seems unnecessary, were it not that they are overlooked every day in our courts, . . .
Of course, lawyers bring their stereotypes with them to court. Some lawyers believe that women are more likely to give large monetary judgments then men, or vice versa. Other lawyers believe that people with a particular ethnic background are more generous than the population at large – – or less generous. I recall reading many years ago about a comment by a juror of a particular religious persuasion who, after the jury found for the defendant in a wrongful death case, was quoted as stating, “we are all born to die,” suggesting that this particular philosophy was a factor in her jury vote. Clearly, a plaintiff’s lawyer hoping for sympathy for a client who was severely injured, or for the survivors of someone who was killed as a result of what the plaintiff’s lawyer hopes the jury will conclude was negligence, would like to avoid someone with that particular set of beliefs. If a jury consultant can help a lawyer who might otherwise be clueless about the demographics of the jury pool avoid someone like that (or help the defense lawyer, keep someone with that point of view on the jury), it would well be worth it. However, situations like that must be very rare.
I will admit that I fall on the side of the skeptics on the question of whether to use jury consultants. I am hard-pressed to believe that a so-called jury consultant is able to add much in the way of value by providing advice regarding factors such as sex, age, education, ethnicity and work experience. And, after all, one never knows whether a jury consultant added value in any particular case. You don’t get to try the case twice under controlled circumstances that will answer this question. I suppose that if I were involved in a case that had a limitless budget (that is quite rare), I might listen to what a jury consultant had to say. But, I wouldn’t commit to being bound by that advise.
However, there is one major exception to these comments. When the Wall Street Journal described Mr. Rajaratnam’s use of jury consultants, it also mentioned that the defendant’s trial team had conducted a “mock trial”. In other words, a group of people was brought together – – presumably a group that reflected the expected demographics of the jury pool in Manhattan – – and Mr. Rajaratnam’s lawyers “put on their case.” Mock trials can vary greatly in scope. Some are very elaborate, and include not only opening statements but actual direct and cross-examination of witnesses. Others are quite abbreviated; the lawyers might grab a few secretaries or paralegals (or perhaps the spouses or friends of firm employees), and do nothing more than present opening statements. Typically, one lawyer is asked to role-play a lawyer on the other side of the case. The best mock trials actually include juror deliberations behind a one way mirror, while the attorneys are able to observe and videotape the deliberations. To get the most out of this exercise it should be as realistic as possible, and the mock jury should not know which side of the case had hired them.
While I am not a strong believer in jury consultants who provide advice on what “type” of person is the ideal juror in a case (or the “anti-ideal juror”), I am a strong believer in the benefits of mock trials, and a jury consultant can help organize a mock trial and analyze the results. There is nothing more humbling to a lawyer who has spent years developing his or her case theme, only to discover that it goes over like a lead ballon when presented to a mock jury. Or, that the witness whom the lawyer is counting on to win the case is perceived as insincere or unpersuasive. A mock trial can reveal these weaknesses.
Of course, the lawyer has to learn this far enough in advance of trial to change course, and not on the eve of trial, when it may be too late. If not . . .. well, there’s always the next case!
