For many C-level executives, the uncertain prospect of putting their company’s future in the hands of 12 strangers in a jury box is somewhat like walking into a casino with your hard-earned nest egg in hand. But what if you were walking in not with Lady Luck on your arm, but the equivalent of a card-counter?
Meet Jason Bloom and Alison Bennett of Bloom Strategic Consulting, consultants who take a scientific approach to evaluating how jurors are likely to react to a client’s case—including the evidence, theories, and witnesses.
“CEOs should ask if there is value to learning how a jury will react to the case before writing settlement checks or deciding to go to trial,” Bloom says. “Sometimes it makes economic sense to settle a case, but I’ve seen Fortune 100 companies settle for much less than they were willing to pay based on the results of mock jury testing.”
Bloom’s approach is to eliminate the guesswork and hunches when it comes to all aspects of a jury trial, from jury selection to witness preparation to how jurors perceive witnesses and evidence. “We have tools now that can help us assess the risk,” he notes. “Using jury research creates more data points that we can share with a client.”
The boyish-looking 39-year-old got a running start to his career of predicting courtroom outcomes. With an undergraduate degree in psychology from the University of Texas at Austin and a master’s degree in forensic psychology from John Jay College at the City University of New York, the Dallas native went to work for “Dr. Phil” McGraw’s company, studying jury behavior and conducting mock trials for Oprah Winfrey in her 1998 “mad cow disease” defamation trial in Amarillo. It was on that case that Bloom first met Charles “Chip” Babcock of Jackson Walker LLP, who led Winfrey’s defense and has been the TV icon’s go-to lawyer ever since, as well as a steady client and ardent fan of Bloom.
“Unlike a lot of others in this field, Jason has training in how people think and how they process and react to information,” Babcock says. “Jason drills down a lot deeper into what kind of juror will be good or bad for a given case. He has a great knack for teaching witnesses how to tell the truth effectively in court; his witnesses don’t have a ‘deer in the headlights’ look.”
Bloom’s work with Winfrey underscores many of the lessons he imparts to his clients about how juries feel about witnesses. As the veteran jury consultant points out, communicating in the courtroom is not just about what you’re saying but how you’re saying it: “CEOs are very good at meeting the needs and expectations of their audiences in the boardroom, but they aren’t always good at that in the courtroom.”
In a recent case, Bloom worked extensively with Winfrey on effectively communicating in a deposition. The lesson is clear: no matter how skilled you are in your chosen field—and Bloom has been hired by star athletes and celebrities as well as executives—communicating in a courtroom is a completely new ballgame.
Another fan and steady client of Bloom’s is prominent litigator Mike Lynn of Dallas’ Lynn Tillotson Pinker & Cox LLP. A courtroom veteran who has worked with and observed many jury consultants over his career, Lynn takes a somewhat jaundiced view of the field.
“Jury consultants fall into three categories: debate coaches, people who purport to be scientific in their approach, but whose ‘science’ really doesn’t match up; and people like Jason Bloom,” he says. Bloom “brings judgment to the process—he sees patterns developing in the way people are responding, such as how many people on juries are reacting to the recession.”
Another talent of Bloom’s, according to Lynn, lies in how he deals with the CEO witnesses and the trial lawyers with whom he works. Bloom is masterful in dealing with the egos, says Lynn: “Jason understands the strengths and weaknesses of the strong personalities he works with, and how best to use them, much like a good coach deals with star athletes.
Mock Trials, “Shadow Juries”
Bloom charges $400 an hour, plus travel expenses, for his time. Sometimes he’s asked to assist in preparing witnesses and to assess how they are likely to be perceived by jurors or to advise them on how to emphasize key themes of the case without being seen as repetitive. “Juries remember how witnesses and attorneys made them feel, more than what they said,” observes Bloom.
Such witness communication training comprises about a third of Bloom Strategic Consulting’s business, with the remainder coming from conducting mock trials, focus groups, “shadow juries” that can provide insight into how the actual jury is reacting to testimony and evidence, and assisting with jury selection.Bloom has a state-of-the-art mock courtroom—complete with jury box, witness stand, judge’s bench, and counsel tables—at his North Dallas office to complete what he calls the “legal laboratory” approach. Attorneys and clients can monitor the courtroom “testing” from a viewing room behind one-way glass, and observe the “deliberations” conducted in deliberation rooms that are wired for video and sound.
A full-blown mock trial runs an estimated $15,000 to $30,000, with those conducted out of town running approximately $10,000 to $15,000 more. Whether it’s a high-stakes commercial litigation matter in California or a patent infringement suit deep in East Texas, Bloom offers jury studies that are “done in the venue, or a surrogate, to provide a mirror in terms of the jury pool demographics, occupations, and educational attainment,” he says.
It’s an approach that has earned Bloom a 90 percent success rate between mock and real decisions, and garnered a loyal following as well. Pamela O’Brien, chief litigation counsel at Stewart Title, says that Bloom and Bennett “excel at taking a scientific approach in coming up with a jury pool that mimics the demographics of our actual jury pool, and they help us outline our case by categorizing what we should ask prospective jurors and by identifying what will resonate with jurors.” In short, O’Brien says, “they help us define our message and convey our message.”
The witness communication training alone cannot be underestimated. Bad deposition testimony by corporate witnesses is often used as leverage in settlement discussions, as well as a factor in assessing the risk of going to trial. Yet, as Bloom is quick to point out, “the vast majority of that bad testimony can be easily prevented.” Improving body language, the wording of responses to questions, and even the timing of how a witness answers can make critical differences in how he or she is perceived by a listening audience. Remaining true to the themes of the case, and emphasizing what needs to be emphasized without being deemed repetitive, is also vital, according to Bloom.
Lessons from “Neurolaw”
A great deal of preparation goes into getting to hear what a jury thinks of your case. As Bennett points out, “The challenge for us is integrating the data that we collect into the decision-making aspect of each case.”
Bennett’s academic pedigree includes a master’s degree in educational psychology, human development, and communication from Texas Tech University, and she incorporates lessons from the emerging area of “neurolaw”—a marriage of cognitive neuroscience and traditional psychology that studies juror bias and decision-making—into her work. This can take the form of advising clients about attention spans and short term/long term memory issues for jurors, or even when to change topics.
“What attorneys and CEOs forget is that they’re not trying the case to a jury of their peers: they’re trying it to real, everyday people,” according to Bennett. The commonly held belief of “since you have deep pockets, you’re going to lose” simply isn’t true, she says.
Understanding and utilizing a more scientific approach enables Bloom and Bennett to take the guesswork out of jury outcomes. Likening jurors to icebergs, Bloom points out that what lies unseen below the water—the attitudes, life experiences, and predispositions—“are more predictive to the outcome of a case.”
All of this data accumulation, analysis, and overall preparation pays off, says Bloom. “Mock jury research serves as a reality check,” he says. “If you’re thinking one way about your case, and you find out you were wrong, wouldn’t you rather find out from a mock jury than the real one?”
Bloom’s most recent success story illustrates the importance of such preparation. Famed trial lawyer Rusty Hardin called on Bloom Strategic Consulting for help in successfully defending baseball legend Roger Clemens from charges of lying to Congress. By analyzing how strengths and weaknesses of the case would play to typical members of the jury pool, well ahead of the actual trial, Bloom says, Hardin and his trial team “were better focused to prepare for success, rather than just prepare for trial.” The result? Clemens was acquitted on all counts.