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Trial consultants' role challenged

In the decade since the O.J. Simpson trial brought trial consultants to national prominence, their role has continued to expand to the point where the profession is now fending off challenges to its growing influence.

Whether it’s concern about their role in witness preparation or claims that their communications should not be privileged, trial consultants are now experiencing a level of scrutiny that comes with success.

In response, the American Society of Trial Consultants (ASTC), a 500-member professional organization founded in 1982, is working to ensure that:

  • work product is protected; and

  • the profession sets standards for what even its members admit is a hodge-podge of practitioners, with backgrounds as diverse as communications, psychology, marketing and acting.

Dr. Phil’s Landmark Case

In 2003, the 3rd Circuit held that the work product of a trial consultant is protected by the attorney-work product privilege (In re Cendant Corp. Securities Liti-gation, 343 F.3d 658).

The case involved Phillip C. McGraw, a Texas trial consultant who parlayed his psychological savvy into media fame as TV’s Dr. Phil after helping Oprah Winfrey prevail in a defamation suit brought by Amarillo beef suppliers.

In the 3rd Circuit case, Dr. Phil was working as a trial consultant with attorneys for Ernst & Young in a securities matter. Opposing counsel wanted to depose the consultant about advice he had given to a senior manager at Ernst & Young as the manager prepared to testify.

The matter eventually reached the 3rd Circuit, which declared that trial consultants’ work was covered by the attorney work-product privilege.

The court held that under Rule 26(b)(3) of the Federal Rules of Civil Procedure: “Litigation consultants retained to aid in witness preparation may qualify as non-attorneys who are protected by the work-product doctrine.”

Houston trial lawyer Howard Nations said the court clearly ruled that the work-product doctrine “extends to materials that are compiled by a non-attorney, whether it’s a paralegal or trial consultant, if he is an agent of a party or a party’s attorney.”

Despite the ruling, some attorneys are going through state courts to try to depose trial consultants about their witness preparation work.

Seething In Seattle

Seattle personal injury attorney Paul Luvera, for example, said he is not affected by the 3rd Circuit’s ruling.

“I have very little interest in what the 3rd Circuit covers,” Luvera said. “I practice in the state of Washington.”

Two years ago, Luvera won a court order from a state judge in Washington to depose Amy Hanegan, head of Better Witnesses, a trial consulting firm in Seattle, who had been hired to work with a defendant in a medical malpractice case (Adkins v. Elliott, No. 02-2-15703 KNT (2003).)

He said his discovery motions are aimed at finding out how much a consultant was paid, and what a consultant suggested to change a witness’s demeanor and appearance — information that he argues is not protected by the attorney work-product privilege.

“I want to know what has been done in terms of change of dress, haircuts, how to hold your hands — every time I see a witness with their hands folded, looking at my tie, they have been told to do that by a jury consultant,” Luvera said.

“One of the basic, fundamental rights you have is to expose bias on the part of the witness, and the instruction says that the jury has to evaluate the witness on a number of factors — appearance, bias, demeanor and so on,” Luvera continued. “If you have modified who this person really is in order to create the impression they are someone else, that is highly relevant.”

Luvera’s firm uses trial consultants for focus group, jury selection and trial presentation — but not to help prepare witnesses.

“I want to know who’s been fiddling with a witness, and I want to know who this [witness] was before they fiddled with him, and the jury’s entitled to know that,” he said.

‘The Challenges Go On’

Luvera said he plans to seek a deposition of Angela Dodge, a Washington trial consultant who was hired by the city of Tacoma, Wash. in its defense of a $75 million wrongful death suit filed by the family of Crystal Brame. (Brame v. City of Tacoma, No. 04-2-00712-7 KNT (2003).)

The lawsuit stems from a sensationalized 2003 incident in which Tacoma Police Chief David Brame shot and killed his wife, Crystal, in a strip-mall parking lot, and then turned the gun on himself to commit suicide.

Luvera said the city has paid Dodge $25,460 for her consulting services, and that jurors are entitled to know her role in witness preparation.

While conducting a deposition of a former city attorney on May 4, an attorney in Luvera’s firm learned that she had been prepped by Dodge.

“Did [Dodge] tell you how to dress?” the attorney asked, according to the Tacoma News Tribune.

“Objection,” the opposing attorney shot back. “Don’t answer that. [It’s] going into the realm of attorney/client privilege and work product.”

Hanegan, who has already been deposed in one case, said the efforts by the Luvera Law Firm to depose trial consultants have affected her and her colleagues in the Seattle area.

“The challenges go on. They make life very difficult,” Hanegan said. “I think what they’re trying to do is have ammunition to be able to go into a courtroom in front of a jury and say, ‘You see, this person couldn’t even tell the truth without help.’”

Hanegan contends that is as far from the truth as one can get.

“Trial consultants help witnesses because it is such foreign territory,” she said. “It is most uncomfortable for witnesses to have to defend their actions, whether they’re doctors, truck drivers, reporters or the president of the United States. It doesn’t matter who it is. It is foreign territory, and that is why it is critical that an attorney take the time with a witness and give them the tools and techniques that allow them to testify truthfully, but with confidence.”

A similar theme is sounded by Douglas Green, a Covington, La. trial consultant and president of ASTC, the trial consultant’s association.

“It’s an attack on part of the system — the system being the civil justice system,” he said. “You have a lawyer who has lots of money and doesn’t mind chasing this issue down. His objective is to cause clients to stop using consultants in certain areas because they don’t want to fight with him over these issues.”

Green added, however, that he doesn’t expect such challenges to become widespread.

“We’re not happy about it, but it’s not a national trend,” he said. “We don’t see that happening; we’re seeing little cases bubble up here and there. As long as both sides have access and are using consultants, nobody is interested in raising the issues, and the issues are pretty well settled.”

A Profession ‘Defining Itself’

Despite Green’s confidence, the trial consulting industry continues to face sporadic criticism about its role in witness preparation.

The Georgetown Journal of Legal Ethics last summer published an article by two law students, which raised ethical questions about trial consultants’ role in witness preparation.

The article, which was discussed at the ASTC conference, stated: “One of the important services offered by trial consultants is witness preparation. Long recognized as an area ripe for abuse, the practice of witness preparation becomes even murkier when trial consultants are brought into the mix. While lawyers are governed by various model rules and ethical codes, there are no external controls whatsoever on the conduct of trial consultants. Neither are trial consultants subjected to enforceable internal standards.”

The article’s authors could not be reached for comment. But Eric Oliver, president of MetaSystems, a trial consulting firm in Canton, Mich. and head of ASTC’s professional standards committee, said the article demonstrates a lingering distrust among some lawyers about the role of trial consultants.

“Maybe one in 10 trial lawyers is ever going to use a trial consultant; that leaves nine out of 10 to be suspicious,” he said. “There have always been people who were a little dubious about having non-lawyers doing anything at all with trial work, except as expert witnesses.”

Such concerns are misguided, according to Oliver.

“I think in some sense, trial consultants are getting too much credit for changing the outcome of cases. We help lawyers better organize, better focus, and in some cases the work we do really does improve the way a case is presented,” he said.

“But we’re being attacked only because we’re not lawyers,” Oliver said.

Laura Dominic, a senior litigation consultant with Tsongas Litigation Consulting in Seattle, agreed that there is still some misunderstanding about the trial consultant’s role in witness preparation.

“A trial consultant’s role is to focus on enhancing witnesses’ credibility and comfort on the witness stand,” she said. “Our role is to help them take control of the testimony and feel comfortable. It certainly is not to tell witnesses what to say, to script an answer or somehow position their answers in the best possible light.”

Debate About Certification

In an effort to allay clients’ concerns, the industry is striving to establish professional standards.

The ASTC has adopted standards and practice guidelines in five areas: venue surveys, witness preparation, small group research, jury selection and post-trial jury interviews. ASTC members have also debated setting up some kind of certification process, but so far have been unable to agree on a mechanism.

“In accounting or law, the first thing you need is a finished body or fixed body of knowledge,” said Oliver, who opposes certification. “We haven’t even begun to finish formulating our body of knowledge. It’s such a diverse group of people and diverse set of skills. People in our business come from all sorts of places.”

But Karen Lisko, a senior litigation strategist at Persuasion Strategies in Denver and past ASTC president, said she favors certification of trial consultants.

“There are things consultants need to be doing,” she said. “I think one of the things we are doing is setting standards for good work. And I do think we need to look hard at certifying our profession.”

She suggested that consultants take exams for certification in specific practice areas, such as witness preparation.

“My concern is making sure that, as consultants, we are educated about what you have to do to protect your clients’ work,” she said.

Lisko added that she believes some of the criticism about ASTC’s standards is valid. Its witness preparation standards, for example, are “
very general,” she said.

A one-page document, the ASTC’s witness preparation standards consist of six general guidelines, including:

  • Trial consultants shall advocate that a witness tell the truth.

  • Trial consultants shall describe the process employed in preparing a witness, including techniques and their limitations.

  • Trial consultants shall provide witness preparation services within the boundaries of their competence based upon education, training, supervised experience or other appropriate professional experience.

“I think we made a first step in getting all of these standards on paper,” Lisko said “Over the next few years, I expect we will re-evaluate all these standards.”

Protecting Their Work

Several experts said that both attorneys and trial consultants should take steps to ensure that a trial consultant’s work — particularly in the area of witness preparation — is protected by the attorney work-product privilege.

Hanegan said she never meets with witnesses unless an attorney is present. She also requires written agreements that work product — such as a videotape of a witness — is protected by the attorney’s work-product privilege.

Lisko agrees.

“When you’re doing work with a witness it’s best that the trial attorney is present at all times,” she said. “That way it’s a double layer of protection — attorney work-product and attorney/client privilege.”

“I think the key to it is the attorney in-volvement,” Nations said. “When you talk about work-product doctrine it is the attorney’s work product that we’re talking about. And the reason non-lawyers have that extended to them is because they’re working as agents to the party or the party’s attorney and they’re assisting the attorney in trial preparation.”

Nations said he makes it clear that he’s in charge of trial preparation and that the trial consultant is there to assist him.

“In focus groups and witness prep and anyplace else I use a trial consultant, I’m always the one taking the lead and the trial consultant is the one assisting me,” he said. “That way there’s no doubt in anyone’s mind it’s my work product. That way you’re invoking attorney work-product and attorney/client privilege.”

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