TRIAL CONSULTANTS AS KEY ASSETS IN MULTIDISTRICT LITIGATION

Managing the scope of multidistrict litigation (MDL) is a daunting task for attorneys and trial teams. The sheer number of cases, attorneys, and witnesses involved in the process creates significant challenges, especially when trying to keep everyone involved in the process “singing from the same sheet music.” Defining, designing, and modifying strategy and tactics based on data, insight, and feedback across cases and participants is critical to ensuring more predictable and successful outcomes.

At Tsongas, we have been deeply involved in numerous, significant MDLs. As litigation and trial consultants, the aim of our approach is to promote the use of the best learning, offer consistency in the language and strategies used by attorneys and witnesses, and test these strategies through rigorous research at different points in the process. This blog provides a brief summary of the key points of a more comprehensive white paper that lays out the ways we have been most helpful in producing positive outcomes in MDL trials, resulting in an optimal resolution to the overall litigation.

We see our role on an MDL trial team as being a hub of information and strategy and a provider of coordination, feedback, and jury-based insight. These approaches are not theoretical, but data-driven and tested over the last decade of experience in this unique litigation context.

So where do we start? Given the typically sizeable number of attorneys and witnesses participating in an MDL, it is vital to a critical assessment of the cases’ jury appeal prior to discovery. During this early stage of the litigation lifecycle is when the initial, overall narrative framework should be formed. This overall narrative framework is developed with themes and theme-activating language. A comprehensive case strategy session attended in person or remotely by key attorneys and clients involved in developing the defense of the case can create a strong, coherent approach collectively supported by all members of the team.

In our MDL cases, after the initial, collaborative case strategy meeting, the work product is developed into an initial trial guide. This document should include modules for each key part of the case that outline the evidence, language, and strategies that have been determined to provide the greatest chance of success. This evolving guide can be presented and distributed to trial team members who will be trying cases, some of whom might be disconnected from the larger preparation team.

Quite possibly the most powerful tool to educate and get buy-in from the broader trial team is the use of the Trial College. If the initial strategy produces “the Bible,” then the Trial College is the opportunity to “spread the gospel.” This is where the initial assessment of strengths, weaknesses, overall narrative framework, themes, and theme-activating language going into discovery can be shared with the broader trial team.

Once these preliminary themes have been developed, the next step is to test these themes with initial focus group research. A focus group conducted early in the process will help MDL litigators determine if the themes and language they have developed are appealing to individuals similar to those who might ultimately hear the case as a juror.

Incorporating the themes and language into deposition testimony is the next important step in the preparation process. It is important for witnesses to, “tell the truth well” by giving their answers in their own words and not adopting the language and themes that the plaintiff attorney wishes to impose. This is especially critical in an MDL, where a witness will give testimony one time that will then be used in multiple cases.

Once the discovery process is well along or at its close, trial teams often conduct mock jury research, otherwise known as mock trials, in cases of significance. A mock trial helps determine if the overall approach to the defense of the case will resonate considering the evidentiary patterns with a group of jury-eligible individuals from the venue. Mock trial research provides many insights about the strategy being executed by the defense: Do the themes resonate? Which pieces of evidence are most crucial? What are the arguments jurors gravitate toward when left to their own devices? What are the phrases that stick and help jurors persuade other jurors?

Once discovery is complete, we then switch into the trial phase of the MDL. As trial consultants, we are crucial members of the team tasked with assisting in selecting or “de-selecting” a jury at the actual trial. We assist with the process of identifying and eliminating negative juror bias on a jury panel; assisting counsel in making effective use of cause and peremptory challenges; securing improved jury selection conditions, if necessary; and conducting targeted questioning of a jury panel. Sometimes it’s appropriate to administer and analyze a supplemental juror questionnaire (SJQ). These questionnaires are usually longer and go into more detail about specific issues involved in the case than the generic court questionnaire.

Any trial lawyer performing an opening statement to a jury is inherently a professional speaker. However, we often find the hard work done by trial lawyers to get ready for an opening is not the kind of work that leads to better speaking performances. Presentation skills, like all skills, are improved through performance and feedback. Writing and thought may be the necessary start to an opening statement, but it is far from what is sufficient to make a persuasive and compelling opening statement presentation. Starting the opening early in the litigation process and delivering it to get professional feedback allows the time for the appropriate level of development and refinement.

During the trial, it can be incredibly useful to receive unbiased feedback about the day’s events. A shadow jury is a group of jury-eligible people who attend trial, supervised by a jury consultant. Also known as trial monitors, these jury-eligible individuals are debriefed daily to provide timely feedback to the litigation team. A shadow jury can provide daily insight into how a jury is likely perceiving the case and assess if messages are coming across as intended. They can gauge the impact of specific testimony, arguments, or evidence and provide a credibility assessment of your witnesses. Finally, they can identify misunderstandings or confusion that needs to be clarified the next day. Additionally, the shadow jury is often pulled to deliberate before closing arguments, which allows the closing strategy to be informed by insight from their collective deliberation over the specific verdict form questions and key instructions.

As part of an MDL, the usefulness of a shadow jury can extend beyond the immediate trial. The feedback can be incorporated into subsequent trials as well, adding even more value to the shadow jury research.

There have been many debates about the relevance of closing arguments over the years. Our research suggests, in the right circumstances, it can be a difference-maker. Again, this fact is highlighted in the MDL context as so much knowledge can be leveraged from case to case. Two key factors create the setting for closing to be a significant factor: (1) the case is complex; and, (2) the verdict form and jury instructions are not straightforward. Like the opening, the closing can be honed early and adjusted depending on how the case comes in. Ideally, the weekend prior to the day closing is scheduled is a great time to do the final run-through.

Finally, after the trial is completed, the last piece of the puzzle is to interview the actual jurors. This is not always possible, especially in the case of federal trials, but obviously obtaining feedback from the jurors will help shape the trial strategy moving forward in the MDL. Although some useful information can be gathered from the jurors in the courtroom immediately after the verdict, interviews conducted by phone by an unbiased, trained questioner can provide even more insights.

Managing and trying cases in an MDL can be a daunting task, but this task can be made more manageable by enlisting the assistance of a trial consultant that has a methodology for increasing the effectiveness and efficiency of the process. Utilizing the variety of practice areas provided by an experienced trial consultant helps ensure the right themes are developed, tested, and implemented by all the attorneys and witnesses involved in the process. Research projects will produce essential feedback from jury-eligible individuals helping test and shape the trial strategy. De-selecting biased jurors and monitoring the trial provides the best chance of success in bellwether cases, and interviewing jurors after trial directs course corrections that can be made in subsequent cases.