Witness Preparation and the Trial Consulting Industry

Georgetown Journal of Legal Ethics, The, Summer 2004 by LeGrande, Nicole, Mierau, Kathleen E

I. INTRODUCTION

The question of just how far an attorney may go in preparing a witness for trial is a difficult one. It involves ethical consideration as well as the possibility of tainting a witness to the extent that due process and the necessity for reliable evidence may justify the exclusion of that witness's testimony. '

Lawyers have long been faced with ethical questions surrounding witness preparation; however, there has been little guidance on how to address these issues. The United States judiciary and the American Bar Association ("ABA") have largely avoided the topic of improper witness preparation, in part because the troublesome actions are so difficult to detect, making any rules almost impossible to enforce.2 The situation has been further complicated by the emergence of the litigation consulting industry, which allows lawyers to contract out witness preparation services to professionals not regulated by the ethical standards of attorneys.

This Note highlights the emerging industry of litigation consulting and the ethical implications surrounding it. Part II will give an overview of the industry. Part III will discuss the ethical dilemmas involved specifically with witness preparation. Part IV will look at the professional ethical standards of the litigation consulting industry. Finally, Part V will examine some proposed reforms of this system.

II. THE LITIGATION CONSULTING INDUSTRY

Lawyers hire litigation consultants, also referred to as trial consultants, for help in "communicating the important aspects of the case to the jury."3 Today, the litigation consulting industry is comprised of over 700 practitioners and 600-800 litigation consulting firms, which generate approximately $400 million per year in revenue.4 In fact, the use of litigation consultants is so popular that some comment that "it's no longer an issue of whether to use a trial consultant. . . but which one to use."5 As one jury consultant said, in "any significant case, where there are significant damages at stake, both sides are doing mock trials. We just assume that now."6 Another professional agreed saying, "lawyers who fail to conduct jury research or engage in other trial preparation techniques could leave themselves open to malpractice claims."7

Litigation consultants were first embraced by the legal community in 1971. During the Vietnam War, two anti-war activists were brought to trial in conservative Harrisburg, Pennsylvania for participating in anti-war activities.8 Sympathetic sociologists researched and compiled profiles for ideal jurors, and submitted these profiles to the activists' lawyers during jury selection.9 The trial ended with an acquittal which many credited to the sociologists.10

In the thirty years since the Harrisburg Trial, the services offered by trial consultants have become much more diverse. Generally speaking, trial consulting services are divided into four categories: (1) pretrial research; (2) jury selection; (3) court-room presentation and strategy; and (4) post-trial services." Within these categories, distinct areas of consulting include: deposition preparation, post-trial juror interviews, presentation strategy, psychological evaluations, trial simulations, and witness preparation.12

Just as the services offered by consultants are diverse, so too are the educational and professional backgrounds of the consultants themselves. While most have backgrounds in psychology, sociology, communications, or marketing,13 some have training in acting, graphic design, and screen writing.14 Specifically, a survey of litigation consultants revealed that fifty-seven percent of respondents had their highest degree in psychology; a degree in communications was the second most popular, followed by law.15 "The mean number of years of experience as a trial consultant was 9.6 years. About one-third had prior professional experiences lasting five or more years in a field other than psychology or law."16 Some have inferred from this data that trial consulting is a second career for a "large portion" of consultants.l7

A vast majority of consultants are members of the American Society of Trial Consultants ("ASTC"). Tracking the growth of the industry generally, the ASTC has ballooned from fifteen consultants in 1982 into a body of over 400 members.18 ASTC members adhere to a code of ethics and, like other trade organizations, host conferences and seminars to share experiences and learn about new, more effective practices. As explained by ASTC President Richard Gabriel, the19

ASTC is an invaluable resource for the courts and counsel to understand and communicate to the citizens who decide these important issues. We look �,('�... forward to working more closely with state and national bar associations and ,,� other professional trade associates to conduct research and develop recommendations to improve the effectiveness of the jury system.20

III. THE WITNESS PREPARATION DILEMMA

Stated broadly, witness preparation is "any preparation . . . that is intended to improve the substance or presentation of testimony to be offered at a trial or other hearing."21 Reasoning that "poorly prepared witnesses are the greatest weakness in any case"22 and that "verdicts often hinge on jurors' perceptions of key witnesses,"23 litigation consultants are driven to utilize aggressive and thorough preparation practices. As one consulting firm explained, "rarely have we seen a witness who was too smooth due to witness preparation."24