Roger Clemens Mistrial: Top Ten Tips for Vetting Your Trial Presentation Consultant

While I have yet to hear directly from someone who was present in the courtroom, I have heard quite a bit about what happened, and the result. Some have speculated that the DOJ did it intentionally, in an attempt to push the envelope of admissible evidence. Others say it was a mistake, and that the defense team “tricked” them into showing it by not objecting prior to trial, and then further by not objecting or asking them to immediately remove it, once it began to play. This was probably identified on the record before they began to play it. Regardless, Judge Reggie Walton called the third strike, and the DOJ was out.

At issue is a video excerpt of testimony deemed inadmissible as hearsay by the Judge. This means that that it is a case of something like Laura Pettitte telling an investigator that her husband, Andy Pettitte told her that Roger Clemens had told him he was doping. The problem is that nobody is directly making the statement.

In my experience, and similarly shared by others on the Trial Technology LinkedIn group, the DOJ has a tendency to be penny-wise and pound foolish when it comes to trial presentation. Several of us have seen inexperienced paralegals or junior attorneys sitting in the “hot seat” at trial, barely capable of bringing up the correct exhibit (at the correct time).

Although the trial tech in the government’s “hot seat” may not have erred in playing the testimony (that may be entirely on the attorneys, although if it were inadmissible and the tech left it in the database, that’s a problem, as well), it appears as though the text was left on screen for the jury to view during the sidebar (when the Judge called counsel to the bench over this issue). At that point, the screen should have been immediately blanked. This part does indeed to be a result of an inexperienced trial tech.

Borrowed from an article which I originally wrote for Law Technology News, here are the Top Ten Tips to vetting your Trial Presentation Consultant:

1. Choose and retain your trial consultant as early as possible. There are many resources available to help you locate a good consultant, including web searches, referrals, litigation support groups and directories. Good consultants are busy consultants, so you hire them early. If you do a lot of trial work, you might consider retaining a consultant on an ongoing basis.

2. Check for conflicts. As with law firms, trial consultants generally only work on one side of a case, although there are circumstances where they serve as a "neutral" for both parties. Clarify this before you sign the contract. Also, run a conflicts check to protect your existing client relationships.

3. Get an estimate, with options. To avoid unhappy surprises, discuss in detail the expected litigation workload, and request a written estimate of what you can expect to spend on trial support. Most trial consulting services are billed hourly. Rates typically start at $150 to $200, but can go higher, depending on the case and consultant. It's not uncommon for a one-month, full-service trial to generate a consulting tab in excess of $50,000. Not all cases warrant those expenditures, so be candid with your consultant, and discuss alternatives.

4. Try to identify specifically what you need and will expect your consultant to provide. Although your consultant should be able to assist you in defining these goals, the more information you can provide up front, the better your chances of success. Unclear communication and assumptions are a proven recipe for disaster.

5. Make sure all interested parties are on the same page. A consultant, working with staff, may head down one path, only to find that the lead attorney has another plan - and was not aware of what was going on. Try to get all communications onto a "paper (or e-mail) trail," and include anyone who should be in the loop. Many potential issues can be identified before they become problems. Try to avoid giving too much information over the telephone, as this makes it impossible to verify and track the communication.

6. Research your consultant. Thoroughly check out his or her website, "Google" them, ask for referrals and references - and actually check them! Listen carefully to those who have worked with the consultant - do you sense any hesitancy or reservations? Identify the primary business focus of your consultant. (This is generally apparent by reviewing the website.) If you are looking for a trial consultant, don't contact a videographer or scanning vendor, and vice versa (unless for a recommendation). Don't be your consultant's first "real trial" experience.

7. Make sure you know who will actually be working on your matter - don't just buy into a smooth sales pitch. Meet the trial team face to face. Get, in writing, the name of the team leader and the consultancy's commitment that the team will remain assigned to you for the duration of the litigation.

8. Don't change horses mid-stream. Be sure your consultant is absolutely fluent in all the litigation support software you are already using. This includes Concordance (Dataflight Software Inc.); Summation (Summation Legal Technologies Inc.); TrialDirector (inData Corp.); Sanction II (Verdict Systems); etc. Do not assume that every consultant knows every software application. Many can work with several, but others may not. Do not duplicate work product simply because your consultant does not use your software.

9. Avoid proprietary systems. Should there come a time when you are no longer in love with your consultant, you may want to get out of the marriage. If they are using their own software systems, it may be difficult for someone else to take over the database.

10. Listen to your consultant's opinion. You are paying good money to have a consultant on your team. Realizing that trial work is what they do most of the time, ask questions, get advice, and check in with them often.

There is no excuse for trying to save a few dollars on the lowest bidder, or to keep all the billable hours in-house, when it results in less than the best possible representation of a client. But, I see it all the time. I wonder who will be the lucky owner of a mistrial and resulting malpractice lawsuit in a nice big civil case. It’s only a matter of time.

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