Lawyers use trial consultants to fine-tune tough cases  

RESEARCH: Firms cover jury selection to strategies

Pamela Griner Leavy and Krista Reiner    
Contributing Writers
published May 26, 2000

At Trial Practices in downtown Tampa Violet Assaid (I), senior assistant public defender, and Chris Hellinger, assistant public defender, conduct a mock trial as a "jury" listens.

The 30th floor of a Tampa office blocks away from the federal, state and district courthouses might seem like an unlikely place for courtroom drama.

But it is here that Harvey Moore, owner of Trial Practices Inc., helps to plan the communication strategies for high-profile criminal cases.

Behind heavy mahogany doors are two completely furnished mock courtrooms, six jury deliberation rooms that double as office space, a focus group room that can be monitored by closed circuit video, a full video and digital animation suite, and a graphics studio.

Here the Hillsborough County Public Defender's Office sought Moore's help in the murder trial of Valessa Robinson.

Guilty or innocent, Harvey Moore believes every accused person deserves the best defense possible. Not trained as a lawyer but with a doctorate in sociology, Moore provides consulting services to public defenders, prosecutors, private and corporate lawyers throughout the United States.

Taking lessons from Harvard Business School and Madison Avenue, Trial Practices and other trial consulting firms such as Los Angeles-based Decision Quest, help lawyers with strategic planning.

Planning steps used by trial consultants include case analysis, mock trials, focus groups, market attitude research, help with jury selection, advice on courtroom mannerisms and style, and the choice and production of professional videos and colorful graphics.

With a 12-member Trial Practices staff of sociologists, psychologists, criminal justice experts and technicians, Moore works with attorneys and clients to put together what his research tells him is the most effective way to present and win the case.

The target audiences? The all-important jury, news media and the public.

The past director of the University of South Florida Human Resources Institute and former deputy director for research at the Florida Mental Health Institute doesn't shy from tough cases. A previous client, William LaTorre, a St. Petersburg chiropractor charged with the 1989 manslaughter deaths of four teenagers on the Intracoastal waterway; Tampa criminal defense attorney Barry Cohen represented LaTorre, who was acquitted.

A poster-size, after-trial celebration photo of LaTorre, Cohen and the jury hangs in the hallway of the Trial Practices offices.

Moore spends most of his time on civil cases. He assisted in the defense of four Columbia/HCA executives charged with Medicare fraud. While two of the defendants were convicted, one was acquitted and one case resulted in a hung jury.

And Moore assisted Dow Chemical attorneys in defending the corporation against nationwide lawsuits involving silicon implants.

Moore said that Dow "never lost a case."

Pinellas Public Defender Violet Assaid recently utilized Moore's pro bono services in the first degree murder trial of Walter Morris, a 28-year old charged in the horrific beating death of a 2-year-old boy.

Decision Quest also is a major player in the trial consulting field with 175 employees and branch offices in 11 major U.S. cities. David Davis, senior vice president, said Decision Quest often works with clients in the Tampa Bay area, but he would not name clients or give specifics.

Decision Quest was employed by the plaintiff families in the O. J. Simpson civil suit, by the prosecution in the California re-trial of Eric and Lyle Menendez now in prison for killing their parents and by the federal government in the Oklahoma City bombing trial.

Like Decision Quest, Moore can command more than $1 million for his services. Typically, he charges $6,500 for a six-person focus group and from $12,000 to $20,000 for a mock trial with three mock juries. Computer graphics, videos and digital animation production fees are based hourly.

As a staunch opponent of the death penalty, Moore offers his consultations free to public defenders in capital crime cases. Though Valessa Robinson was facing life in prison rather than death row, Moore volunteered his time for similar philosophical reasons.

The only costs billed were out of pocket expenses for copying, focus groups and video and graphics production.

Baltimore Ravens linebacker Ray Lewis also is a client of Trail Practices Inc. Lewis and two other men went on trial in Atlanta this week accused of the post-Super Bowl stabbing deaths of Jacinth "Shorty" Baker and Richard Lollar.

Ray Lewis is personally paying Trial Practices for helping to pick a jury and best present his defense. The fees from paying customers help to underwrite the pro bono services provided to clients represented by Public Defenders such as Robinson and Walter Morris.

"It's the Ray Lewises of the world who pay for the Walter Morrises," said Moore.

An example of Moore's strategy in the case was to use enlarged mug shots of Robinson's accomplishes, Adam Davis and John Whispel, unshaven and in their prison jumpsuits. It was important to show them not as boys, but as adults who could manipulate a young girl, he said.

"It's the story that counts," Moore said about trial planning. "It's not the grammar that makes the story great. It's the central theme.

"In (Robinson's) case, we were asked to help because they were effectively trying to take this child's life away from her."

Moore said he is still not satisfied that Robinson got a fair trial even though jurors came back with a lesser conviction of third-degree murder rather than first degree murder.

He is committed to the case through the sentencing and appeal process, he said.

In gathering his research, Moore employs citizens to play jurors in mock trials and participate in focus groups. They are hired for about $10 an hour through classified advertisements, random telemarketing and word of mouth referrals.

Once in the Trial Practices courtroom, each "juror" is given an individual hand held computer. This electronic juror feedback system registers positive and negative reactions during the mock trial presentations.

During the actual trial, citizens may be paid to sit in the courtroom as "shadow" jurors. Moore and members of his staff may also serve as courtroom monitors.

At the end of the day, the consultants meet with shadow jurors and clients for a review. A shift in strategy may be deemed necessary if events did not go well and the immediate feedback of shadow jurors is negative.

"Some of the people believe there is something improper about using consultants," said attorney Tom Masterson, president of the St. Petersburg Bar Association. "They feel like they are putting on a show instead of exposing the truth."

And there is this view:

"Harvey's service is no different than what people selling products do," said Barry Cohen, who is representing Steve and Marlene Aisenberg.

On Nov. 24, 1997, the Aisenbergs called 911 to report that their 5-month-old daughter, Sabrina, had been abducted from her crib. She has never been found.

Investigators believe the baby is dead. No one has been charged with murder, but in September, the Aisenbergs were charged with conspiracy and lying to investigators.

Their alleged conversations about the incident recorded from court-approved bugs planted in the couple's bedroom and kitchen give the federal indictment most of its muscle. They also have made some people skeptical of the couple's version of what happened.

"They (consultants) try to gauge the public's reaction and adjust to it," said Cohen. "It's a lot different dealing with products than people. It's a lot more complicated. Every person is different and complex. Every can of Coke is the same."

Neither Cohen nor Moore would confirm or deny whether Trial Practices Inc. has been retained to help the Aisenbergs.

"There's no magic to it," said Masterson, who practices personal injury and medical malpractice law. Trial consultation is like a "security blanket" for lawyers who "are always worried about the outcome of a case" and the scientific techniques used help "alleviate some of that concern," he said.

"They're helping ensure the lawyer's communication of a case is clear and properly understood," said Masterson. "But whether you are successful or unsuccessful in a case depends on so many variables.

"A lot of it has to do with the skill of the attorney and how people present themselves. Appearance and personality can be major factors, but you can't say just what combination works. Jury consultants are just one of many tools."

Hillsborough County State Attorney Harry Coe and his prosecutors do not utilize the services of trial consultants.

"We don't rely on these people, but we read about them, and we learn from them," said Coe, adding that 35 of 36 murder cases tried by his staff last year resulted in convictions.

"We don't mean to say they don't know their business," said Coe. "We know our business and our people are experts in trial practices and procedures. It doesn't mean consultants don't have relevant things to say about how to pick a jury or look at DNA. But my position, based on 23 years as a judge in the criminal division, is that nobody knows how to pick a jury, nobody knows how to win your case and nobody can say `I know you have the jury that's going to win this.' "

Masterson said because of cost he rarely hires trial consultants, but he uses similar strategies in his legal work. He holds mock trials and takes informal opinion polls to gauge what non-lawyers think about issues relevant to his case. But he admits his findings are not as reliable or scientific as those found by Moore and others.

Coe said defense attorneys shouldn't be criticized for using consultants as part of the trial team.

"In all of these areas we need to keep an open mind and listen to what everybody's opinion is based on their background and experience," said Coe.

Masterson agrees.

"I think the acid test is to ask if you were being wrongfully accused, wouldn't you want your lawyer to work with a trial consultant?" he said. "If they thought about putting themselves in the situation, most people would say `yes, use them."