The right tactics are the starting point for good litigators; trial lawyer Reuben Guttman of Grant & Eisenhofer talks to a master tactician.
Every good trial lawyer knows that advocacy is a two way street. The message and its content are half the story; understanding how the jury, judge, arbitrator or mediator will receive the information is the other half.
Meet Josh Dubin, age 38 and one of the hottest litigation consultants in the US. Mr Dubin heads up a group called Dubin Research & Consulting (DRC). The DRC website describes a broad array of services for trial lawyers. from jury selection, messaging and focus groups to persuasive demonstratives and transcript analysis. While the site is replete with information about DRC’s offerings, there is no biographical information on Mr Dubin himself. 'This was intentional,' he says, 'it is about a team effort.'
Mr Dubin and his DRC regularly work with some of the best-known trial lawyers in the US, including Barry Scheck, Roy Black, Peter Neufeld, Jerry Shargel and Jerry Lefcourt. One very recent DRC client is Joe Tacopina, lead counsel for Alex Rodriguez, third baseman for the New York Yankees. With help from Dubin and DRC, Mr Tacopina is arbitrating major league baseball's effort to suspend Mr Rodriguez – accused of using performance enhancing drugs – for more than an entire season.
Nancy Gertner, a former federal judge and now a professor at Harvard Law School, has had an opportunity to work with Mr Dubin since retiring from the bench. She calls him 'a brilliant litigation strategist no matter who the decision maker is.' She adds that, 'His advice on jury selection and case presentation (both before judges, juries, and arbitral panels) is simply without parallel in the profession. To assist his client, he completely masters the detail of the case, and brings to bear not only legal analysis, but also the teachings of social psychology, his multiple areas of expertise.'
To say Mr Dubin 'selects the jury' would – by his lights – be an inappropriate characterisation. 'We do not get the chance to select a jury,' he says, 'the process is about de-selection. The question is: who would be my nightmare juror?'
'To really add value for the most prominent litigator, you have to get the case under your fingernails from both the social psychology and legal perspective,' Mr Dubin, who is a lawyer with an apprenticeship in applied social psychology, points out. 'A lot of consultants can give advice ... but you have to know what the rules of evidence will allow in order for it to be practical advice that your clients can implement.'
From his vantage point, Mr Dubin believes that the biggest threat to the criminal justice system in the US is a growing trend not to let lawyers directly 'voir dire' or directly question jurors during the selection process. In most federal courts in the US, it is the judge rather than the lawyers who examine prospective jurors for bias, he says, adding that, 'There is too much of a focus on seating jurors quickly rather than ferreting out bias.' He is also critical of the stock question that many judges pose: 'Can you put your bias aside?' Mr Dubin points to Roy Black's quip, 'Where are you going to put it?'
Talking to Mr Dubin is akin to a short course in advocacy. He has these suggestions for trial lawyers:
1. Openings: Do not try and cover too much ground; try to narrow the message to two or three concepts. If the opening is too long, the juror will tune out. To keep jurors focused, use a few memorable demonstratives that capture your core messages.
2. De-select the jury: Jury selection is about de-selecting those individuals who will be a 'nightmare.' And if there is a problem with the case, confront it head on. 'If the claim is for $400m dollars, you need to ask up front whether a juror will have a problem awarding damages that high, for whatever reason – be it philosophical, religious, moral – regardless of the whether they felt the evidence warranted it. Time and time again, we encounter perspective jurors who might be sold on your case from a liability standpoint, but would never award the damages you are going to ask them to award. If you don’t address these type of intrinsic value beliefs during jury selection, you may be setting yourself up for disaster.'
3. Don’t drink your own Kool-Aid: Case strategy must account for the weaknesses of your case. 'We look at our adversary’s best evidence and then unfold it. You simply cannot run from weaknesses in the case, you have to confront them.'
4. Put on a good show for mediation: 'You need to send a message that if this case gets in front of a jury, the other side will have major problems.' The presentation at mediation must be a finished product with solid 'demonstratives.'
5. Do not read: Do not read openings and closings. 'Work off an outline and vibe off demonstratives. The best way to turn off a juror is to read from a script. During post verdict interviews, we have found that jurors equate reading from a script with lack of preparation and insincerity – not the type of thing you want associated with you as a trial lawyer.'