By Mike A. D’Amico, Esq.
Early on in my career I did not routinely use focus groups prior to trial. Now it is rare that I try a case without one. I have found them to be invaluable in assessing the strengths and weaknesses of a case from a potential jurors’ eyes, the eyes that matter most.
The most important concept of focus groups is to understand what they are not. They are not a prophecy of how the case will be decided at the actual trial. There are too many variables that cannot be duplicated such as the personality and bent of the judge, defense counsel assigned to try the case and the crap shoot of the jury pool. A focus group is, however, a good glimpse into how a jury may view certain important and disputed issues and an excellent method to hone your presentation for the best chance of success. We have found them to be immensely beneficial not only for our preparation but for client preparation (and control) as well.
I began many years ago using trial consultants and have conducted my own for the last several years. Should you wish to use a consultant a good place to start looking is the American Society of Trial Consultants. I have listed below my thoughts from focus group experiences. I have also added some thoughts I learned from reading an excellent book written by David Ball, Ph.D. entitled “How to do Your Own Focus Groups”. At the end I have discussed the application of the attorney work product doctrine and the attorney/client privilege to trial consultants and, by analogy, focus group jurors hired by counsel with the expectation of confidentiality. I have also included a comment on recovering the expense of a focus group as a cost where a statute allows for recovery of ‘attorney fees and/or costs’.
If you have never done a focus group don’t be afraid to speak with other lawyers and paralegals that have; and if you are uncomfortable attempting one yourself hire an experienced jury consultant until you get the hang of it. As David Ball aptly said “doing a focus group wrong is like getting a serious misdiagnosis from a doctor; you confidently believe it and it kills you.”
There is little case law in Connecticut concerning focus groups, but there are a number of cases nationwide dealing with trial consultants, trial simulations, mock juries, etc., that do shed some light on issues such as the confidentiality of the process and the recovery of its costs as an award of attorneys fees. Also American Jurisprudence Trials gives a fairly thorough overview of focus groups and other trial consultant tactics. See Susan E. Jones, Use of Jury Consultants in Civil Cases, 49 Am. Jur. Trials 407 (2007); see also Murray Ogborn and Theresa Zagnoli, ATLA’s Litigating Cases 36.23, 36.54 (2007).
Of course, all attorney-client communications concerning the subject of the representation and all work product prepared in preparation of litigation are privileged and generally not subject to discovery. See Practice Book 13-3(a); Conn. R. Prof. Resp. 1:6.; see generally State v. Weber, 49 Conn. Supp. 530, 896 A.2d 153 (Super. Ct. 2004).
The Federal District Court of Connecticut has recognized that a party’s consultant on legal issues may have possession of confidential attorney work product and that the opposing party?s ex-parte contact with such a consultant can constitute grounds for disqualification of counsel. MMR/Wallace Power & Industrial, Inc. v. Thames Associates, 764 F.Supp.712 (D. Conn. 1991); see also United States v. Housing Authority of the Town of Milford, 179 F.R.D. 69 (D. Conn. 1997); Shoreline Computers, Inc. v. Warnaco, Inc., 27 Conn. L. Rptr. 30, 2000 WL 371206 (Super. Ct., April 3, 2000). These cases do not deal with a trial or jury consultant, per se, but with an ex-employee who was substantially involved with his employer’s pretrial preparation. Nonetheless, these cases illustrate that any consultant or person who helps prepare a party for trial and who had access to privileged work product is also covered by the attorney-client privilege.
In MMR/Wallace, Thames Associates contracted to build a cogeneration plant and Thames subcontracted with MMR/Wallace to do mechanical construction work on the project. Thames terminated MMR/Wallace’s contract. MMR Wallace then created an office for the purpose of closing out project-related activities and to prepare for litigation. MMR Wallace transferred its office manager Richard Willett to run this new office.
In the course of preparing for litigation, Willett aided MMR/Wallace’s attorneys in setting up a document control system to organize thousands of documents pertaining to the construction project. Willett also was responsible for reviewing, indexing, and digesting all of the discovery materials. He also prepared a number of reports and analyses concerning issues involved in the litigation, as well as attending numerous confidential meetings to discuss litigation tactics and strategies. He assisted in the preparation of interrogatories and consulted with counsel regarding the topics to raise in deposing different persons.
During the course of this pre-litigation work, MMR/Wallace filed for bankruptcy, and its surety took over the financing and direction of litigation. The surety and Willett were unable to come to terms on a contract to serve as a litigation consultant, so Willett approached Thames’ counsel and offered to it his services as a litigation consultant. Thames attorneys hired Willett as a consultant, and the surety filed a motion to disqualify opposing counsel based on its ex parte contacts with a person who had access to and knowledge of MMR/Wallace’s work product and attorney-client communications.
The District Court of Connecticut likened Willett to a trial consultant and held that he had been privy to privileged work product that was necessarily confidential:
764 F. Supp. at 725.
Having concluded that Willett had obtained confidential information, the court stated that it was presumed that Willett had shared this information with Thames’ attorneys, and their denials and evidence presented were insufficient to rebut that presumption. Accordingly, the court granted the motion to disqualify. Id. at 726-28.
Later, the District Court of Connecticut again faced this trial consultant issue in Milford. In that case, HUD sued the housing authority of Milford for violations under the Fair Housing Act. HUD filed a motion for leave to contact the former executive director of the housing authority, ex parte, and the housing authority contended that the ex-director was a trial consultant ala’ the former employee in MMR/Wallace and that the ex-director was privy to work product subject to the attorney-client privilege. The court allowed HUD to contact the ex-director, with some limitations, because the court found there was no evidence that the ex-director had participated in the formulation or discussion of litigation tactics or strategy. 179 F.R.D. at 73-74.
These Connecticut federal court cases at the least establish that a third party who consults with an attorney in preparation for litigation is subject to the attorney-client privilege and the work product doctrine. In other cases with a mock trial or other trial consultations at issue, this point is reiterated.
For example, the leading case concerning trial consultants outside of Connecticut is In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3d Cir. 2003). In that case, a cross claimant moved to compel discovery from the cross defendant’s former auditor concerning conversations the auditor’s employees had with its former trial strategy consultant. The Third Circuit first held that litigation consultants come under the attorney work product doctrine:
343 F.3d at 665-66.
The Third Circuit first explained the cross claimant’s argument for discovery and then the district court’s basis allowing discovery:
As noted, the District Court held that the work product doctrine should be cabined to lawyers and be strictly limited when applied to a lawyer’s agent. The District Court said:
After the District Court made this determination, Cendant conceded that it was not accusing Ernst & Young of fabricating false testimony in the meetings between Wood, his attorney, and Dr. McGraw. But Cendant argued that, as a result of the District Court’s conclusion that the work product doctrine did not extend to meetings with Dr. McGraw, they were entitled to inquire into the content of those meetings. Cendant said ‘We are not here now deciding what they did or accusing them of anything. But once it is not privileged … once that veil is no longer there, we are entitled … to show anybody, judge or jury, what went on as they practiced with the witness.’ (Tr. Dec. 13, 2002).
Id. at 666-67.
The Third Circuit, though, reversed the district court’s discovery order and held that the trial consultant’s discussions with prospective witnesses and the defendant’s attorneys constituted privileged attorney work product:
Id. at 667; see also Hynix Semiconductor, Inc. v. Rambus, Inc., 2008 WL 397350 (N.D. Cal., Feb. 10, 2008) (a trial court allowed the examination of witnesses to include questions about whether the witness had spoken with a jury consultant and other circumstances concerning such discussions but disallowed any questioning as to the content of these discussions because the jury consultant’s work was confidential work product); cf. Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000) (a public relations firm’s consulting work with party concerning litigation preparation was privileged work product); Caterpillar, Inc. v. Trinity Industries, Inc., 134 P.2d 881 (Okla. Civ. App. 2005) (the court refused to declare a mistrial and discussed the limits on the scope of a plaintiff’s jury consultant’s testimony regarding mock jurors’ thoughts about the defendant’s liability).
The court in Confederated Tribes of Siletz Indians of Oregon v. Weyerhauser Co., 2003 WL 23715982 at p. 8, n.12 (D. Ore., Oct. 27, 2003) (see cases cited in note), vacated on other grounds, Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., __ U.S. __, 127 S. Ct. 1069 (2007), noted that jury and trial consultant fees can be recovered under statutes allowing the prevailing party to recover attorney’s fees and costs; see also B.D. v. DeBuono, 177 F. Supp.2d 201 (S.D.N.Y. 2001); but see Clawson v. Mountain Coal Co., 2007 WL 4225578 (D. Colo., Nov. 28, 2007).
In DeBuono, for example, the court awarded the plaintiffs the costs of trial consultants in an action under section 1983 against a city, county, and state department of health for violation of due process rights under the Individuals with Disabilities Education Act. The court held that a jury or trial consultant’s fees were akin to attorney’s fees and were awardable accordingly:
177 F.Supp.2d at 204.