Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, August 13, 1995 TAG: 9508110080
SECTION: BUSINESS PAGE: D1 EDITION: METRO
SOURCE: F.J. GALLAGHER STAFF WRITER
DATELINE: LENGTH: Long
But over the course of nine days of the trial that concluded last week - a multimillion-dollar injury claim by a Hardy man against one of the world's largest makers of industrial equipment - the jurors saw spectators in the gallery scribble notes whenever one of the five lawyers established a point.
Occasionally, one juror said after the trial, they wondered why these same eight people turned up in Judge Jackson L. Kiser's courtroom every day, always sitting in the same place, never speaking to anyone, yet apparently paying close attention to every development of the unfolding legal drama.
What the sworn jurors could not know was that the eight people were what's known in the law profession as "shadow jurors." They were local residents selected on the basis of their demographic characteristics to resemble the actual jury and paid by the defendant, United Technologies Corp. of Hartford, Conn., to sit in court every day listening to the lawyers argue fine points of law.
Instead of the comfortably upholstered chairs of the jury box, they sat in the hard wooden benches of the gallery. During recesses, they followed the same admonishments as the sworn jury: don't talk to anyone about the case, not even each other. Most brought books or newspapers to read when the trial grew dull.
"It's kind of hard to stay focused sometimes," one shadow juror said after a particularly tedious defense presentation. "I mean, sometimes those lawyers say the same thing five different ways."
To a lawyer, getting the right people on the jury can make or break a client's case. In theory, the group will be impartial and unbiased. In practice, though, an attorney wants a jury full of people as sympathetic as possible to a client's case.
For years, the process of picking a jury has been largely regarded by attorneys as, at best, a crapshoot. During the voir dire, or the pre-trial period when lawyers for both sides question prospective jurors and select the panel, most lawyers rely on information about potential jurors that is no more scientific than gut feelings and hunches. And as for judging the effectiveness of their presentations, said lawyer William Poff, many attorneys simply try to read some meaning into jurors' facial expressions.
"The truly helpful information comes from focus groups," said Poff, who was the local counsel for the United Technologies defense team. Poff admitted that he has occasionally turned to jury consultants himself, when the client could afford them and understood the need.
And increasingly in the Roanoke area, lawyers are trying to influence the outcome of trials with the same sort of market research that consumer-products businesses rely on for clues about who would buy soap or soft drinks
According to the American Society of Trial Consultants, dozens of firms offer focus groups, simulated trials, shadow juries and advice on juror psychology to lawyers hungry for any glimpse into the minds of jurors.
And as the amount of damages awarded by juries soars, often reaching millions of dollars in cases similar to last week's trial in Roanoke, the research techniques are being used locally with greater frequency. Although it's virtually impossible to put a dollar value on the size of the industry, at least one Roanoke marketing consultant is hoping to grab a share of the burgeoning jury research market.
\ William Cadd of Hardy in Bedford County filed his suit against United Technologies after a violent explosion ripped through the warehouse in Salem where he was working. On Dec. 5, 1990, he and a co-worker, Harry Young, were applying Topcoat - an industrial adhesive made by United Technologies - when vapors from the compound somehow touched off an explosion. They were coating the interior of a large steel tank at the Shenandoah Industrial Rubber Co.
The blast ripped the garage door from the building as a massive fireball swept through the tank in which Cadd and Young were working. Co-workers said in news reports later that the two men "went up like a candle" before their eyes and that Young, when he was finally pulled from the enclosure, was breathing fire from his mouth and nose.
Cadd sustained second- and third-degree burns over 26 percent of his body, and both men spent months in a hospital and receiving physical therapy. Later, jurors would swallow hard and look away when Cadd's lawyers showed them pictures of his injuries and described the painful treatments.
Cadd and Young filed separate suits in U.S. District Court against United Technologies. Nearly three years later, in October 1993, another Roanoke jury ordered the company to pay Young $4 million in damages, in addition to back wages, court and medical costs. The award was one of the largest personal injury verdicts ever in the Roanoke area.
So when Cadd's day in court came almost two years later, bringing with it the distinct possibility of another huge award, defense attorneys Donald H. Dawson and Kathleen Clark, both of Detroit, took no chances. They ordered a legal consultant to form a shadow jury.
The lawyers hired Opinion Research, a Skillman, N.J., marketing research firm, to recruit people representative of the Roanoke Valley in terms of age, gender and race on the assumption that a real jury would match the area's demographics. The company also quantified the relative weight of community values, such as the importance of a strong work ethic and respect for the legal system.
Opinion Research contracted with two Roanoke marketing research firms - Mary Anne Marketing and Martin Research Inc. - to provide a group of people that matched the characteristics determined by Opinion Research to most likely define a potential Roanoke jury.
Although Opinion Research personnel declined to be interviewed for this article, Mary Anne Huff of Mary Anne Marketing said her company recruited 27 individuals while Martin provided the rest of the 42 people eventually recruited.
"We were given a quota," Huff said, adding that she knew virtually nothing about the nature of the group's eventual task. "We recruited so many males and so many females in certain age brackets with a given education level."
Most of the recruiting was done by word of mouth and some applicants suggested others, she said. The individuals were told only that they would be observing a civic process.
Martin Research's vice president of quality control, Marjorie Jeskey, said her company was involved only in recruiting potential members of the shadow jury and had nothing to do with the final decision about who actually would be employed. In fact, she said, she had no idea what those who were chosen would be doing until she was contacted for this article.
"Most of my work is confidential," she said. "It was a two-phase process and we were involved only in phase one."
The potential shadow jurors met in Roanoke, assembling at the Patrick Henry Hotel on Monday, July 24, according to one applicant who wasn't selected. In one of the hotel's conference rooms, they met with Opinion Research representatives and filled out extensive questionnaires about themselves and their beliefs. After the paperwork, two Opinion Research representatives and Arizona State University communications Professor John Crawford interviewed the prospective shadow jurors.
Those hired on the basis of their responses were told they would be doing market research involving a trial. They would be paid $80 per day for the length of the hearing - $160 up front and the balance at the end of the proceeding. In contrast, the sworn jurors received $40 a day for their services.
All the Opinion Research applicants were required to sign a statement agreeing not to talk to anyone - not even each other - about their experiences. Opinion Research employee Sarah Williamson attended court every day to make sure the gag order was enforced.
Each day she appeared in court in a white knit dress and took her post in the last row of the gallery. Any stray conversations with inquiring reporters, or anyone else, was met with a sharp glare and a private rebuke later. In fact, one shadow juror was dismissed after the first day for being too talkative, another of the shadow jurors later disclosed. Yet all seemed eager to talk about their experiences as a shadow juror.
"I tried to pin them [Opinion Research personnel] down about what we would be doing exactly," said one shadow juror who declined to be identified for fear of losing the job, "and each time they were kind of vague. They want to keep this whole thing anonymous."
Each night around 7 p.m. their home phones would ring, the shadow jurors said, and each night it would be with a call from a different person in one of the seven Opinion Research offices around the country. Sometimes the calls were made from Long Beach, Calif.; other nights it was Tucson, Ariz. One night the call came from Arlington.
The Opinion Research employee never told the shadow jurors anything about for which side they were working or even the nature of what they called the "research project." Any requests for additional information were politely brushed aside.
"They'd ask what happened and what my impressions were of that day's testimony" - including which points needed clarification and which strategies weren't working, the shadow juror said.
It appeared, the shadow juror said, that Opinion Research employees forwarded those impressions to the defense team, who in turn adjusted their presentations the next day.
"I was amazed," said another shadow juror, who also declined to be identified, said during the trial. "Everything I told them was fixed the next day," although she declined to provide specific examples.
In the end, the jury award Cadd $600,000, substantially less than the $2 million his lawyers had sought in closing arguments.
Defense attorneys Dawson and Clark declined to comment, as did Judge Kiser.
Cadd's lawyers, though, figured out by the third day of testimony that the defense had employed a shadow jury. Attorney James Joyce said he recalled seeing or hearing of a shadow jury's being used in Roanoke only one other time: Young's hearing.
\ The use of shadow juries, while increasing, is by no means the most common tactic in the quest to get inside jurors' heads, said Jeffrey Frederick, director of the National Legal Research Group's Jury Research Services Division in Charlottesville. He also is author of the book, "Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Jury Selection." The consulting group advises hundreds of attorneys annually, and Frederick's division typically provides jury research advice in 20 or 30 cases a year. Although he was not involved in Cadd's case, Frederick said he dispenses advice in eight or nine Virginia proceedings each year, several of which have been in the Roanoke Valley and in Danville.
"Small-group research and trial simulations are much more prevalent," than shadow juries, Frederick said. "In fact, in your more significant trials, you should expect it."
Small-group research, he said, involves the use of focus groups in which a half-dozen or so people gather, usually for a single afternoon, to view video tapes of a lawyer's presentation. The group then discusses the merits and flaws of the argument and compiles a report for the attorney.
Often, the focus groups themselves are videotaped and the tapes are included as part of the report. They may point out to an attorney holes in a case, or the need for a different tactic to more aptly illustrate a point to a jury.
Trial simulations much more closely resemble a courtroom experience, Frederick said. A mock jury hears summaries from both sides of a case and receives instructions from someone playing the role of a judge, just as a sworn jury would. Often, the mock jurors go so far as to deliberate and actually return a verdict. The results and, more importantly, the process leading up to them, form the basis for a critique of the lawyer's argument as presented to the jurors.
In fact, Frederick said, jury focus groups and trial simulations have come to be viewed by lawyers almost as standard preparation for trial. Some have said, only half-jokingly, that an attorney who fails to make use of them could be considered negligent in his duty to adequately represent a client.
Plaintiff's counsel Joyce agreed, adding that he would use one if he had a client that could afford it.
"It's valuable feedback," Joyce said. "It's good to have some idea of how the case is going as you try it."
"It's all about effective communication - strengths and weaknesses," Frederick said. "I would hate to be in the position of knowing that my cause is just but losing anyway because I've confused the jury."
And losing is a situation that Frank Martin III hopes to help Roanoke-area lawyers avoid.
His company, Martin Research Inc., plans to enter the jury consultant market in the next couple of months with a full menu of focus groups, trial simulations and research packages.
Martin Research already has made some overtures to lawyers in Norfolk, Richmond and Roanoke, he said, including a direct mail promotion and a presentation in April at The Jefferson Club.
"We got a response as soon as it went out," Martin said. "People were very interested."
Although the seminar failed to net any new contracts, Martin estimated that jury research accounts for 1 percent of his business now. He hopes to see that number grow to 10 percent.
"I think that's a very reasonable goal," he said. "Almost everybody was interested in this."
But the services aren't for everybody, Martin cautioned. As Joyce stated, a prospective client needs to be willing - and able - to pay for the insight that jury consultants can provide.
And those costs range between $3,000 and $8,000, Martin said, depending on the depth of analysis.
"Our goal is to explore the attitudes of the juror," Martin said. "Often attorneys misidentify the important issues in a case."
Indeed, said Amy Singer of Trial Consultants Inc. of Miami, lawyers often get so wrapped up in the minutiae of a case that they forget the people on the jury are regular citizens without a formal legal education. Jury consultants help keep an attorney focused on the basics of a case.
Singer's company, which is one of the oldest and most respected businesses in the field, offers a range of jury consulting services and provided a mock jury in Florida's much-publicized 1991 trial of William Kennedy Smith, who was accused of rape.
But such insight does not come cheap, Singer said, echoing Martin's statements. A complete jury consulting package can tack on $20,000 to a client's legal costs, she said, adding that other firms' rates may be even higher.
"Lawyers are often self-congratulatory," Singer said. "A lot of times a lawyer might be saying, 'Hey, I'm really scoring points here.' But in reality, it all might be just going right over the heads of the jurors."
While focus groups and trial simulations are valuable tools, Singer said, shadow juries have a special benefit: instant feedback. The shadow jury can give a lawyer a good, objective reading about where a case stands with a sworn jury.
"There's been many a settlement based on what a shadow jury had to say about how a case is going," Singer said.
\ Singer, Frederick and Martin all agreed that it is the cost that fuel the criticisms plaguing trial, and particularly jury, consultants. Many feel that only clients with vast resources at their disposal, such as United Technologies Corp.- a diversified industrial equipment company that last month reported $11.18 billion in sales for the first half of 1995 - can afford such consultants.
"This is one of the most controversial aspects of trial consulting," Singer said, referring to jury consultants. "It's very expensive and the goal is to influence the jury."
Although some argue the that the jury system is intended to be blind to economic differences that might favor the rich, Singer said insurance companies often pick up the tab for consultants, a fact she feels more effectively levels the playing field.between litigants.
"Nobody's going to sue you if you don't have insurance," she said. And as for the purity of the jury system, "That's a myth. ... For example, it's supposed to be a jury of your peers, but it's not. People get out of serving on a jury all the time. It would be one thing if everybody had to serve, but they don't." And that fact, she said, flaws any supposed purity at the outset.
Frederick concurred with Singer's assessment, adding that, "every lawyer wants to make use of every weapon available to them.
"Some say this is a tool for the rich, but that's a part of the adversary system that we have in the United States. Besides, you can't manufacture evidence. If a jury doesn't buy what I have to say, they don't buy what I have to say."
And Cadd's attorney Joyce agreed, adding that economic disparities occur naturally in cases all the time. The number of lawyers and the amount spent on expert witnesses serve as prime examples, he said.
"It is an advantage, but I don't think it's an issue of fairness," Joyce said. "They had the money and they were willing to spend it. But no matter what you do, you don't know what the actual jury is thinking. After all, we still got a verdict."
But despite the criticisms leveled at consultants, all see a bright future in the business of jury consulting.
"I would be extremely surprised," Martin said, "if this wasn't a significant increase of our business in the next couple of years."
Singer agreed, saying that the measures are extremely cost-effective compared to other litigation support services. She recommended that at least one-half of 1 percent of the amount a client expects to recover should be spent on litigation psychology.
"Sure it's expensive," she said, "But the goal is to influence the jury, and these days, you can't afford not to. You have zero room for error."
by CNB