Download this articleIn an age where technology rules, personal boundaries have narrowed and a man’s word is not necessarily his bond, how can we ensure that confidential information stays confidential? In the world of litigation, there are rules, procedures and court opinions to preserve confidentiality. But how does that translate into the practice of trial consulting, and more importantly, pretrial research?
Is It Privileged?
Although many clients and attorneys recognize and appreciate how effective and beneficial pretrial research can be, questions regarding privilege and confidentiality continue to linger. Two key issues are typically raised: (1) Is pretrial research protected under the work product doctrine, and (2) What measures can be taken to ensure that the pretrial research process does not become discoverable?
In 2003, the U.S. Court of Appeals took issue with whether the work product of a non-testifying trial consultant is privileged. In an opinion stemming from Cendant Corporation Securities Litigation, the Third Circuit held that trial consultants fall within the scope of the work product doctrine and that “communications [with a trial consultant] merit work product protection.” While the issue of attorney-client privilege was not specifically addressed in this opinion, the concurring opinion held that the “attorney-client privilege was implicated.”
The Cendant opinion has become a critical ruling for trial consultants throughout the country but, like anything in the law, there are always exceptions. Generally speaking, unless you are conducting pretrial research in a format that rivals that of Gene Hackman in Runaway Jury, you should be just fine. However, there are issues inherent to research that, when addressed carefully, can help ensure that the Cendant ruling will apply to your practices.
Execute A Retention Letter
If the attorney and consultant do not already have a detailed engagement agreement, the parties should execute a written agreement formalizing the relationship and scope of assignment. A written engagement agreement leaves no room for questioning whether the consultant has been retained as a third-party, non-testifying expert. By memorializing the relationship, the consultant’s work product becomes privileged and communications are protected from discovery.
In addition, in the event that pretrial research involves presentations or attendance by co-counsel or parties not named in the original retention agreement, the consultant is strongly encouraged to execute supplemental agreements with such individuals. These agreements can certainly be narrower in scope, but are nonetheless critical to preserving privilege should an issue arise down the road.
Require Vendor Confidentiality
Typically, one of the first steps in conducting pretrial research is hiring vendors. Depending on the project design, these vendors may include a professional recruiter, a technology team to videotape the process, and a facility site to provide meeting space.
It would be prudent to require each vendor to execute a written Confidentiality Agreement. While some may consider it overkill, there is certainly no harm in executing a basic agreement where the vendor pledges to treat any document, correspondence, process or mental impressions related to the project as confidential in nature. One can never be too careful, and it only takes a few minutes. In fact, if the vendor expresses resistance to entering into such an agreement, it should be a huge red flag.
In addition, by limiting the amount and type of information vendors receive about the actual case, the consultant maintains greater control of confidential information and consequently, minimizes the chance of any breach. Granted, conflicts must be run (depending on the vendor and scope of assignment) and vendors who attend the actual project obviously will be exposed to case-related details, but to the extent possible, consultants should provide specifics on a “need to know” basis.
Use Professional Recruiters
Typically, one of the first steps in conducting pretrial research is hiring a recruiter. While some attorneys choose to do their own recruiting, it is well worth the extra cost to retain a professional recruiter. They understand the confidential nature of the mock jury process, and they are very sensitive to the unique demographic needs that legal research requires.
When using an outside vendor for recruiting, a few measures can be taken to protect privilege.
1. As mentioned above, enter into a written Confidentiality Agreement with the recruiting company.
2. Refrain from providing detailed case information to the recruiter. Share detailed case information with the recruiter on a “need to know” basis. Professional recruiters are more than capable of staffing a project effectively without knowing details about the specific style of the case, parties, or the allegations.
3. Learn how the recruiter contacts participants. Do they have a database? Do they cold-call? Do they place ads in local newspapers? Work closely with the recruiter on what type of information is given to potential participants over the telephone, and if relevant, what information is placed in print. Maintain control of the process by approving advertising methods, if any.
4. Provide the recruiter with specific parameters and goals for the recruit, and monitor the process frequently. Do not assume that consultants with “in house” recruiters will implement first-class recruiting practices: monitor, communicate and oversee all aspects of the project.
Screen, Screen, Screen
Of course the best mock jury panels are those which match the demographic composition of your trial venue, but make no mistake: a good recruit involves much more than simply matching basic demographics.
No matter what type of research you are conducting, potential participants must be thoroughly screened before being formally recruited. Clearly every case is different, and the venue of the actual research may impact the complexity and length of the recruiting process, but a screener is always critical. In fact, participants should complete the screener not only during the recruiting process, but also during the morning of the actual project. This helps prevent anyone from slipping through the cracks.
A detailed screener can help identify participants who would not typically serve as an actual juror due to eligibility issues, cause or hardship; it also identifies participants who are a little “too close to the case” for comfort. In pretrial research, allowing a surrogate juror who in any way has a personal connection to the case is an invitation for a breach of confidentiality. Unfortunately, despite best efforts, we cannot control what surrogate jurors do once the project ends: a detailed screener helps minimize the chances of having a Chatty Cathy, Bob the Blogger, Media-Hungry Mike or Counsel’s Cousin on your panel. It also maximizes the chances of seating a panel more akin to what you might see in the actual venire.
When it comes to drafting a screener, sometimes less is best. A good rule of thumb?Be thorough, but judicious.
A fifteen-page screener will undoubtedly weed out potential conflicts, but it will also complicate the recruiting process and potentially eliminate participants who would otherwise make very good surrogates. An overly detailed screener also has the potential of inadvertently giving recruits more information about the case than you may really want to share. When screening for specific conflicts, consider adding a few “teasers” into the mix. For example, if the case involves a pharmaceutical company, include the names of multiple pharmaceutical companies so recruits cannot determine which party is involved in the project.
Even though a screener takes some effort to create, and certainly makes the recruiter’s job more arduous, it would be remiss to conduct small group research without one.
Choose the Project Location Carefully
Ideally, pretrial research is conducted in the actual trial venue. However, sometimes the project design allows for the research to be conducted in an alternate venue. In addition, some trial venues present very unique challenges that cause consultants and trial teams to reconsider project location.
When choosing a location, be sure you are informed of any standing orders or “unofficial” practices implemented by the trial judge. No client wants to invest thousands of dollars in pretrial research only to learn after the fact that he must disclose the participants’ names to opposing counsel and the trial court. For example, there is a standing order in the Eastern District of Texas that requires such disclosure under certain circumstances. Know your venue, and know it well.
When small group research is conducted remotely in a relatively small venue, the project is often held in a hotel conference room or public meeting center. These entities are employed by many, and it is impossible to know who-knows-whom. Who’s to say the maintenance supervisor isn’t a relative of the court reporter or local counsel? Chances are slim to none, but you never know. For obvious reasons, in small remote venues it is always a good idea to operate on a “need to know” basis. Be conservative with the type of information you provide to the facility site and its staff members.
In addition, it is also a good idea to work with the facility site on how they “label” the project. It is very common for hotels to display meeting names on signage as well as televised displays throughout the hotel. The last thing you want is a big, bold sign in the lobby stating that the “Smith Law Firm Mock Trial” will be held in Conference Center One. Discretion is imperative.
Lock Down Participant Confidentiality
One of the most important—if not the most important—aspects of conducting pretrial research involves the mock jury panel itself. On the morning of the project, you will be faced with a group of strangers about whom you know nothing. In a perfect world, the people we encounter would share our work ethic, our value system and our respect for the confidential nature of the mock jury process. However, we do not live in a perfect world.
The best way to maintain privilege and protect the research process is to conduct a thorough orientation of the participants before any case-related information is shared, and to require every participant to execute a written confidentiality agreement. Some consultants (myself included) take things a step further and require participants to verbally attest—on video—that they understand the confidentially agreement and will abide by the terms. This serves two purposes: (1) it lets participants know we are dead serious about the confidentiality issues, and (2) should a juror violate the terms of the agreement, it lets the court know that we did our best to protect confidentiality.
A confidentiality agreement does not need to be full of legalese or overly detailed to be effective, but it does need to address a few core issues. Have an active discussion with the panel about the agreement; talk about the meaning and importance of each section, and try to candidly answer their questions. If surrogate jurors understand the agreement, they are much more likely to abide by it.
Be sure the written agreements contain clauses that address the following issues:
- Participant acknowledges that he is being retained by Consulting Company, Law Firm(s) and/or Attorney(s) for research pertaining to a lawsuit pending in [insert appropriate trial venue] (the actual names of the law firm(s) and/or attorney(s) are not contained in the agreement);
- Participant acknowledges that all information related to the project is Confidential. (“Information” is thoroughly defined);
- Participant vows not to disclose any information, opinion or details about the project to any person, business or entity unless required by a court of law;
- Participant promises not to submit any information about the project on blog sites, social networking sites, message boards, newspaper commentaries, email and/or any internet sources;
- Participant promises to contact the appropriate party (typically the consultant) if he is contacted by anyone seeking information about the project or his participation in same;
- Participant agrees to be videotaped and/or photographed;
- Participant acknowledges that his participation, comments, photographs, videotaped media and written questionnaires become the property of the consulting firm;
- If participant receives a jury summons, participant agrees to privately notify the court of a potential conflict if the case is in any way related to the information presented during the research; and
- Participant agrees to abide by the terms outlined in the agreement.
The written confidentiality agreement can be quite overwhelming for the panel, and while we certainly want them to view the project and its rules seriously, we don’t want the panel to be so intimidated that they refuse to actively participate. It is often helpful to assuage juror fears by offering them a verbal contract pledging to treat their feedback and personal information with the utmost respect. Video snippets, photographs and personal information will not be posted on YouTube or the internet, and all information gleaned from the project will only be shared with appropriate parties; it is not for public consumption. After all, how can we expect surrogate jurors to treat our information with the utmost care if we fail to do the same?
Embrace the Role of Facilitator
Project Sponsors
Surrogate jurors are innately curious about the research process and always want to know who is sponsoring the research. Informing the panel that the project is sponsored by the plaintiff, for example, raises a few concerns. First, it has the potential of causing surrogate jurors to modify their feedback or to withhold anti-plaintiff sentiment. Second, it introduces the potential for mock jurors to want to contact opposing parties and/or counsel to discuss the matter further, especially if that juror votes against you. In the age of Google and search engine tools, the savvy and determined rogue juror could choose to violate the Confidentiality Agreement and become opposing counsel’s new best friend.
Therefore, it is suggested that jurors simply be informed that all parties are working together in an effort to settle the dispute and that the facilitator has been retained to work with the parties in conducting the research. This approach not only minimizes potential bias, but it also places the plaintiff and defendant presentations on an even playing field. Neither has a more vested interest than the other does. In fact, by assigning the consultant a “moderator” role, the process becomes more balanced and the forum becomes a safer environment for honest, open feedback—no matter how good, bad or ugly.
Actual Names of Parties, Counsel and/or Witnesses
More often than not, the actual names of the litigating parties, attorneys and/or witnesses are divulged during the research process. This makes the research more authentic, and it certainly makes the process easier on the presenters. Documents do not have to be altered, video testimony can be played “as is” and the presenters and consultants do not need to rewire their brains.
However, there are rare circumstances where the case is so unique, the allegations so public or the parties so well-known in the community that actual names are changed. While this tactic certainly adds another layer of protection onto the privilege issue, it can be extremely challenging to implement. Slips of the tongue are almost certain, and after more than a couple, surrogate jurors start to question the authenticity of the process as well as the credibility of the presenters—which ultimately impacts the quality and validity of juror feedback.
Unless absolutely necessary, use the actual names of the parties throughout the research process.
Retrieve Documents, Papers and Trash
If jurors are allowed to take notes, provide notepads and collect them at the end of the project. Inevitably jurors will take their own notes if paper is not provided, and controlling where these notes ultimately end up becomes quite difficult if Jane Doe is writing case information on the back of her electric bill.
After the project is over and the meeting rooms have emptied, conduct a thorough walk-through. As mentally draining as these projects can be, do not be in such a rush to leave that you fail to destroy all case-related information that may have found its way to a corner, a trash can or the floor. Placing documents with identifying case or project information in a public trash can is an invitation for trouble. Carry them with you and destroy them appropriately… or box them up and FedEx them back to the office for shredding.
Notate Every Single Piece of Paper
As a general rule of thumb, it is always wise to include a footer on every single piece of paper that is generated as a result of the pretrial research. This includes recruiting screeners, confidentiality agreements, written questionnaires, payment forms, emails, formal reports, memos, letters—you get the gist. When creating a document, include a small footer claiming “confidential attorney work product” and put it on every single page, every single time. The devil is in the details.
Once the project has been completed, surrogate jurors have gone home, and the consultant has reviewed and analyzed the juror feedback, a written report is typically generated. In order to preserve the attorney-client and work product privilege, it is suggested that all written reports (and other similar documents) be distributed directly to trial counsel. Trial counsel can then distribute the materials to the client, the insurer and/or other appropriate parties as needed.
Final Thoughts
Pretrial research is an extremely valuable tool for litigants throughout the country. A professionally facilitated project custom-designed to meet the needs of your case can provide a road-map for theme development and trial strategy, as well as insight into potential settlement value. Although pretrial research poses some unique situations regarding confidentiality, concerns over privilege should not inhibit anyone from conducting the research or benefitting from the process. By implementing the suggestions outlined above, you can help keep your information secure, safe and privileged. As Elbert Hubbard once said, “Secrets are things we give to others to keep for us.” Let’s keep them wisely.
Kacy Miller, MEd ([email protected]) is president and founder of CourtroomLogic Consulting, a full-service trial consulting firm in Dallas, Texas. CourtroomLogic Consulting assists clients throughout the nation with narrowing complex issues down to juror-friendly terms long before they enter the courtroom. Kacy provides theme identification, strategy development, pretrial research, witness preparation, jury selection and a host of other services designed to maximize the client’s position in settlement conferences or the courtroom. You can read more about Kacy at www.CourtroomLogic.com.
Citation for this article: The Jury Expert, 2009, 21(2), 26-32.
This is an excellent and useful article. Without taking away from that, I do want to note another perspective on one piece of advice. Regarding the identity of the research sponsor, Kacy Miller says "it is suggested that jurors simply be informed that all parties are working together in an effort to settle the dispute and that the facilitator has been retained to work with the parties in conducting the research. This approach not only minimizes potential bias, but it also places the plaintiff and defendant presentations on an even playing field." One disadvantage of that approach, however, is that it is nearly always dishonest to the participants. While ASTC's guidelines do not prohibit that, the Society's practice guidelines do encourage trial consultants to conduct debrief to mitigate the potential harms of that false information. The professional standards of several other organizations of which facilitators may be members go further. Importantly, consultants should keep in mind that it may not be a harmless lie. Anecdotally, I suspect that many of us have heard of a case in which a surrogate juror, distraught over the result of a mock trial that, they had been told, was jointly binding on settlement, contacted the judge in the case in order to register their objections. There is also, of course, a more principled objection: regardless of the potential consequences, it is simply not cricket to tell participants that opposing counsel is part of the project, when in fact they are not.
A better alternative in my view is to tell participants truthfully that you have your own confidentiality agreements and you cannot tell them whether this is a project at the behest of one party, all parties, or no parties.
A client of mine sent me the following item on a very recent court decision about survey respondents' confidentiality protections. As these protections evolve, I'm glad to have colleagues who are helping me stay on top of these important changes. Thanks for the knowledge.
http://aapor.org/federalcourtupholdsrespondentconfidentiality
Bruce Beal
Beal Research Support Services
I agree with both Kacy and Ken in this interesting exchange. I always try to create the impression that the research is bilateral, but not binding. I recognize that the impression it leaves is that both sides are actually involved in the focus group or mock trial, when in fact they are not. That is a distortion, and I know it. I also let my clients know, and check with them about how far they are willing to take it. If a juror asks me "Are these the actual lawyers who will be trying the case for both sides in court?", I want my client to be okay with my giving a confidentiality ruse, or to lie and say it is, or to tell the more complete truth. I have never heard of a juror contacting a judge, and I stress that they are not to ever discuss the research with anyone at any time, for ever. If they have any question about that responsibility, they are to call me. I have had one juror do that among the many thousands that I have had in groups. I do not see any potential harm to participants in withholding the information that the exercise is designed to benefit one side. That sort of concern would be more valid if it created a flawed impression of the facts, or falsely maligned a party, or got into facts that would otherwise be harmful to a party's reputation. That, too, is an important conversation with clients as they prepare for the research, but it does not oblige disclosure of who paid for the study, or bar a researcher from preserving the misimpression. At least, that's my view.
Thanks to everyone who posted comments about my article on pretrial research. I always enjoy hearing feedback, and am pleased that readers are walking away with new information or issues to consider.
The question of sponsorship has always been a "hot button" within the ranks of the ASTC. Yes, there are some who feel that it is proper to release information to the panel about who is paying for the project and who has a vested interest in the outcome. It's clearly the most "honest" approach, but does it result in the most valid feedback? My opinion is that obtaining valid, unfiltered feedback outweighs the need to disclose my client's vested interest in the outcome. However, there are many schools of thought on this issue and it is not black-and-white: the sponsorship issue is a decision best made by the consultant and the attorneys.
My comments regarding sponsorship in the article may have been too vague to accurately communicate my point, but my typical practice is to simply tell the panel–if asked– that I cannot release sponsorship information because it could risk the integrity of the research and would likely affect their feedback. Once jurors understand the reason for the silence, they often appreciate and accept the need to stay "blind" and the entire issue is put to rest. Has the issue been raised after the project ends? On rare occasion, but I still choose to remain silent. After all, what benefit does the mock juror gain in having that knowledge? In my opinion, it does little but quell their curiosity. In fact, I think gaining that knowledge after the project potentially causes more harm than good (and I can't address that in this tiny space!).
In my 12+ years of consulting experiene, I have never encountered a breach in confidentiality, a rogue juror who contacted opposing counsel, or an "upset" juror who contacted the court. I believe this is, in part, due to the fact that I consistently implement the practices outlined in my article. I revise and modify when needed, and I am always looking to improve. Thanks again for the feedback! Keep it coming–
Every lawyer working with a jury consultant should be required to read this. The article couldn't be more correct. Well done.
Kacy’s article includes thorough descriptions of where and how confidentiality can break down, and steps to make sure it doesn’t. Putting it all together in one place might make all these precautionary steps seem overwhelming, but since we who do jury research do it all the time, we usually have the protocols in place. I agree with Kacy about what respondents get told about the sponsorship of the research. I typically do not tell respondents who is paying for the research. We are already revealing many facts and strategies about the case as it is, with the express purpose of researching the respondents’ attitudes and ideas. We describe ourselves as researchers, and in that stance we present ourselves as information gatherers and discussion facilitators, not advocates for either side. We say that our own confidentiality agreements, just like the ones they signed and agreed to, also prohibit us from saying who or which side paid for the research. Sometimes we might explain about the potential effects on people's responses. Not only does this help prevent respondents from skewing their answers for or against the side that sponsors the research, it also models the stance we want them to take when they are asked about what they did all day. As we facilitate the discussions, when respondents ask and our confidentiality answer does not stop the questioning, we move it back to them: “Who do you think is sponsoring this research? What does it mean that this side (or that) might be doing research about the issues here? How does that influence your thinking? If you were [one side or the other], what would you want to more fully understand about the issues here?” Rather than telling them a falsehood, or trying to sidestep their legitimate curiosity, I believe that reinforcing the confidential nature of the entire exercise for us as well as for them, and then steering them back to their own thoughts, re-focuses them to why they are there in the first place: we want to know what they think about the case and how they weigh the issues involved.
This is a very useful checklist. It reminded me of several things I have wanted to tighten up in my paperwork. Following up on Ken's point, another way I have found useful in handling the sponsorship issue is telling the respondents that you can not comment on who is "putting this on" until the end of the session because it would "throw off" the results. Then at the end if the question comes up again the respondents can be told that the research was done by people "involved in cases like this" who want to know "what people think about this type of case." This is a true statement that is vague enough not to lead the respondents into false conclusions and makes the respondents feel that there opinion was important and valued. The types of respondents who ask these questions almost always pick up themselves that they we can not tell them which side sponsored the research, and appreciate your honesty in answering their question.
Great article, Kacy! Good reasoning for why we require retention agreements. Some attorneys balk at them. And at the hold-harmless clauses. Also, the research location is key: one focus group suite we wanted to use ended up being next door to an opposing client's office. We caught it & went elsewhere. In my focus group research confidentiality agreement I have a damages clause in the event that the research participant breaches or violates the terms of the agreement. Finally, I appreciate that not every case is "trial consultant worthy" for focus group research. Making it even more imperative that when attorneys conduct their own they pay attention to each and every issue you raised.