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“Don’t hire me”

Friday, July 5, 2013
posted by Douglas Keene

hire me - cardboard signI’ve been reading the reactions online to the testimony of Rachel Jeantel in the Trayvon Martin second degree murder trial. There is shockingly toxic resentment towards this young woman who has clearly struggled to maintain her composure in an alien and hostile environment. Some have said she should have been prepared better. Others have said she is [insert racist insult here]. Still others (by far fewer in number) have said she is a typical girl from her socioeconomic background and education level. It’s the sort of situation where you long to help but there is nothing productive to do. In fact, for Rachel Jeantel, a trial consultant could have made things much worse. Because she was a fact witness, contact with attorneys from either side was not privileged (confidential). And if they had tried to assist her in being more emotionally prepared or effective as a witness it would have created a host of other problems for a naive young woman who wished she was somewhere else.

Rachel Jeantel already had her plate more than full during her courtroom testimony. She clearly did not want to be testifying and was trying mightily to keep it together. She didn’t need to be torn apart by Don West with questions like “What did the jury doctor tell you to say about [this topic]?” for every single area of inquiry. Of course the correct answer is “He told me to be calm and to tell the truth.” But would she be able to stay with that answer? Who knows?  It would be ugly and very sad.

What I would have suggested if I had been asked to work on the case is for me to work with the attorney on how he or she interacts with the witness, and how their prep can be more effective. I might have suggested that I be a fly on the wall during the sessions and call for breaks to talk with the lawyers or even pass them notes. Or watch via closed-circuit. It would not be wrong to prep her as another witness might be assisted. But it could become very un-helpful. Kind of like ‘not guilty‘ is different than ‘innocent‘, in this situation ‘not wrong‘ can still be ‘a bad idea‘.

This sort of sideways and indirect witness preparation isn’t ideal, and it doesn’t produce the quality of results that extensive direct prep would have. But she is not a party, and there are no protections for her or for the party sponsoring her as a witness. To coach or prep her directly could have backfired horribly. I would have counseled the attorneys not to hire me to do it.

I go through two checklists before I take an engagement. One is pretty formal with clients, and another one lives in my head/heart. The one with the client is about conflicts regarding the case (including– but not limited to– parties, witnesses, lawyers, law firms, related litigation). The one in my head is very different. It poses questions like:

Will I feel badly for any reason if I take the case? There are lawyers that I will not work against because they are friends as well as being clients from time to time, and it would feel bad. This comes up about once a year. I hate it when I’m engaged to work on a case and opposing counsel changes to one of the people on my ‘friends list’.

Will my involvement create a problem for me, the case, my career, or my profession? 

I’ve written about the heart aspect of this work before. And this controversy with Ms. Jeantel brought to mind an experience I had some time ago. I was asked to assist with witness prep for a trial. No conflicts, okay. About 7 witnesses. Sure. Happy to do it. The meeting was to discuss various aspects of the case. I knew the opposing counsel and initially hesitated before saying yes because of my friendship with another lawyer at that firm. The fact that I semi-regularly work for the other firm was disclosed to my client, but they were fine with that. The friend/lawyer I work with at the other firm wasn’t on this case, so I said okay.

At the meeting, they told me that they also wanted me to assist with jury selection. I pointed out that opposing counsel would recognize me on sight. They didn’t consider that a problem. I asked them whether there was a motion in limine to prohibit each side from making mention of trial consultants, et cetera. No, there was no such agreement or MIL. And I learned that the two sides involved in this litigation couldn’t agree on what time to stop for lunch, so an agreement at that point on any aspect of the case was simply not going to happen.

I pointed out to them that the opposing counsel might well ask every witness “Has Dr. Keene, the jury psychologist, spent time coaching you on what to say when you testified?” Their response was that the witnesses were employees of the company or retained experts, and the contents of my prep meetings (always, always with counsel present) were privileged. I agreed but pointed out that while the meeting contents are privileged, that question in some form is permitted, and it can become a distraction. It wouldn’t get very far because the judge would stop it, but it could happen. (Overall I don’t think trial consultants getting ‘outed’ in court gets traction with jurors by itself, but I prefer invisibility and fret about it and make sure they understand that it can happen. This was a very acrimonious case with much bad lawyer behavior, so I could imagine mud flying at any opportunity. And I was not oblivious to the possibility that I might been asked to jury selection in part to mess with opposing counsels’ heads.)

Finally, we got around to reviewing the witnesses they want me to prep. And lo and behold, they weren’t just party witnesses and retained experts. Fact witnesses were also in the mix. And they are not protected by privilege. I explored with my clients just how ugly the cross could be if the opposing counsel wanted to walk them through every minute of prep with “the jury psychologist” or “witness coach” or “testimony trainer“. Trial consultants can prep witnesses to an extent about how to handle those questions, but the average neophyte witness is no match for a good trial lawyer, and it could very well end up a mess. The main part of my discussion was “what will the jury remember about this witness? Will their testimony be buried under the controversy or spotlighted by it?”  I didn’t know whether the judge would limit a cross about this at all. This fell into the category of “Will my involvement create a problem for the case?” And it might also fall into the category of “Will I wish I had never answered the phone?

Eventually their interest in putting their thumb in the eye of the opposing counsel gave way to their interest in having me do what they originally asked me to do (assist witnesses). And because I wasn’t there to set off alarms to the opposing counsel, the witnesses were not asked anything about me. I was relieved. First, do no harm.

I realize that everyone has to call their own shots with issues like this. Maybe I worry too much. But part of my “in-head checklist” is about my wish to sleep well at night, and this makes me very uncomfortable. Both for the witness and for the case I have been hired to assist. In the roughly twenty years I have been a trial consultant, these are things I think about before taking on a new case. They remind me that even though I am being hired to achieve a particular goal–litigation is always about the people involved. As difficult as Ms. Jeantel’s testimony was to watch, it reminded me that there was no choice but to essentially put her in the dock and hope for the best.

And Ms. Jeantel– thank you for your testimony. You did your duty as you saw it to your friend, his grieving family, and finally, to the justice system. I’m sorry it was so awful.

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