August 20, 2019

Jury Consultants in Construction Cases: From Early Case Development through Trial

Christopher D. Cazenave and Richard J. Tyler

The construction industry has long focused on resolving disputes outside the courtroom and without juries. But every year, numerous construction cases will be set for a jury trial, some of them high-stakes, big dollar disputes. When faced with the prospect of a jury trial, clients and counsel should consider and prepare for the unique dynamics of a jury trial from the outset—and not merely on the eve of trial. Jury consultants can provide early and ongoing insight with respect to risk assessment and trial strategy that will inform stakeholders’ decisions of when to try or settle a construction case.

This article is principally based on the successful use of a jury consultant on a $200 million construction dispute arising out of the construction of a complex, multi-billion dollar industrial facility. The dispute involved many complex technical issues, including delay, lost productivity, cost overruns, rework of defective work, and consequential damages. While many construction jury cases cannot afford the full scope of jury-consultant involvement described in this article, understanding the benefits of services available and the concepts behind them are nonetheless important for construction lawyers to consider.

Early Involvement

There are familiar benefits from a consultant’s assistance at trial, for example, as with jury selection. But there are also potentially enormous advantages to hiring a consultant at the outset of a high-stakes jury case.

Powerful and compelling stories win cases. Every case, including construction cases, has a story to present. The most persuasive narrative to put before a jury in a complex construction case will not jump off the page. Instead, the convincing story of a multi-billion dollar construction project will be scattered among dense technological complexities and a wide range of applied sciences. The attorneys and their clients, having lived the technical details of the project for months and sometimes years, may not see the most compelling narrative. Jury consultants can assist attorneys and their clients to see the proverbial forest instead of the trees by exploring different themes, identifying important witnesses, and developing critical facts—all of which are likely to materially differ if the same complex case was being presented to a seasoned construction arbitrator.

Jury consultants can effectively test the strengths and weaknesses of a case from a juror’s perspective well in advance of trial. This allows counsel, in coordination with their clients, to methodically assess and manage litigation risks early and as the case evolves. Construction clients in particular are able to appreciate the importance of superior risk management and informed decision-making as the next part of a plan unfolds.

For example, in our case, there were multiple issues that could have been made the centerpiece of the case presentation. The work with the consultant indicated that the jury was most influenced by the simplest narrative: that the client was not paid for the work it performed. As a result, nonpayment became the focus of the case presentation, and the other issues were used to establish lack of justification for the nonpayment.

Challenges in Trying a Construction Case to a Jury

Construction cases present unique challenges for a jury. Again, today’s large-scale projects are increasingly complex. Take just one recurring issue in construction disputes: schedule delay. Competing forensic delay analyses that would be expected in an arbitration would probably and literally appear to be in a foreign language to a juror. Yet the juror’s principle duty is to decide all disputed questions of fact no matter how difficult the evidence may be to comprehend. A jury consultant can help the scheduling expert, likely in less familiar territory, to focus on the jury’s expectations and offer a jargon-free opinion intended to better account for the evidence than the other expert’s opinion. The consultant can also assist in the preparation of demonstrative evidence that clearly highlights the key aspects and basis of the expert’s conclusions. 

Another challenge in a construction jury trial can be that both—not just one—of the parties are typically very large companies that jurors may find difficult to identify with. Compare this with a two-party personal injury lawsuit where jurors can often affirm their own attitudes and beliefs with the identities and motives of the parties. But the relative difficulty of connecting with a jury in a construction case does not make the connection any less important. Experts with imagery, jury consultants help develop a graspable picture to leave in the jury’s mind about the company’s character and the quality of services provided—regardless of whether the company employs 10 people or 10,000 people.

Our case included witnesses that were the company’s owners and corporate executives. Suffice it to say, many jurors are suspicious of people who occupy the “C-Suite,” even if they are very hands-on with respect to the project. The jury consultant assisted with identifying background information to elicit during direct examination that made the witnesses more relatable.

Building Your Case

Litigants instinctively strive to have the factfinder—judge, arbitrator, or jury—understand and embrace their side of the case. In construction disputes, some of the arguments that may be critical to persuade a jury may be superfluous or even counterintuitive to a judge or arbitrator. Recognizing this difference at the outset, a party can better understand (a) what key information to ask and search for in discovery, and (b) what witnesses are best to communicate important facts to the jury. 

The information for a persuasive narrative will not come only from project records. Having critically thought through several narratives before discovery, attorneys are in a better position to elicit the vignettes, often anecdotal, that are essential to telling a convincing story to a jury. As examples, in a heated dispute between a general contractor and its subcontractor over a change order, which party took the high ground? Facing a shortage of materials, which party tried to push the project forward instead of pointing fingers? An arbitrator looking at these questions may simply focus on the language of the construction contract to decide disputes over entitlement to changes or material shortages. She may give no weight to which party was more principled or collaborative. But a jury, in addition to contractual obligations, may be considerably influenced by evidence that demonstrates a party’s demeanor and objectives.  

Next, uncovering the right message is only part of the exercise. The message also needs to be delivered through the right witness. Searching for the right witness requires more than just reference to the project’s organizational chart. Jury consultants can help identify project personnel with varying project roles that should be interviewed as potential witnesses. The most influential witness at trial is not someone that may have been remotely considered to testify at an arbitration. Early recognition of the right messages and right witnesses is key to building a winning case.

For example, based on research with our consultant, we believed it was critical to call witnesses who lived the project every day and also took considerable pride in their work. These witnesses in turn get to tell the jury face-to-face that they showed up every day and did their job, and further, that no opposing executive or expert can credibly tell the jury otherwise. Jurors can empathize with this sentiment.

A Mock Jury to Help Prepare for Trial

Litigators across all fields are most familiar with consultants facilitating mock trials and focus groups. While time-consuming and expensive, mock juries can provide attorneys and clients with an unmatched opportunity to prepare and test the themes and stories that have now matured over a course of a year or several years. This may also be the last chance to identify and correct problems with your case.

The insights gathered through a mock jury provide renewed focus for a construction client to dispassionately assess the risk of going to trial. Success at trial like a successful project can be gauged through objective metrics. Mock juries further inform decision-making consistent with the purpose of engaging the jury consultant early on. And as uncertainty mounts and starts to take form, the team’s disciplined ongoing approach to assess risk puts them in the best position possible to still decide whether to try or to settle the case.

Our mock jury exercise, again, revealed the most compelling but simple case theme: the client didn’t get paid for the work it performed. In addition, it revealed important information about “hot-button” testimony, particularly answers that the jurors felt made witnesses less credible. Moreover, the exercise provided information about certain topics not understood by jurors, which warranted development during testimony at trial.

Use of a Shadow Jury

Another service jury consultants offer is to engage and manage a “shadow jury” during the trial. A shadow jury is a group of lay people recruited to sit in the back of the courtroom and listen to the evidence along with the actual jury. The shadow jury in our case initially consisted of 30 people who matched the demographic characteristics of the entire jury pool. Once the jury was selected, the pool was winnowed down to the six people who best matched the demographic characteristics of the seated jury. The shadow jurors were told that they were part of a research project. The jurors had a “handler” who shepherded them in and out of the courtroom in parallel with the actual jury. And at the end of each day, the handler would debrief the shadow jury and report back to the trial team.

These shadow jurors provided daily feedback to enable real-time corrections to strategy and informed decision-making before the verdict. For construction cases specifically, attorneys often face a significant challenge to present several years of complex facts and issues within the few weeks allotted for trial. After each day, shadow jurors are able to provide instant feedback as to whether particular facts and issues require additional explanation. The shadow jury also provided important information about testimony and evidence that was perceived as helpful or harmful so that adjustments could be made with later witnesses to amplify the former and mitigate the latter. The feedback helped know when the jurors “got” a particular point, which improved time-management at trial, an important advantage where, as here, the parties were on a “chess-clock.”

Conclusion

Jury consultants do not possess a crystal ball and lack the substantive knowledge of an experienced construction lawyer. A construction litigator presumably has the ability to understand and effectively communicate their case to any third-party decision maker, including a jury. Nonetheless, as with the specialized expertise of a construction lawyer, there is a tremendous amount of potential benefit by tapping into the specialized insight and expertise of a jury consultant. Jury consultants can measurably improve and inform early and ongoing decision-making before and during trial.  This is true whether the size of the case can support their heavy involvement throughout the entire case or just one or some of their services are utilized. We encourage you to consider the value of jury consultants next time you or your company faces the prospect of a jury trial. 

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Christopher D. Cazenave

Jones Walker LLP, New Orleans, LA, Division 1 (Litigation & Dispute Resolution)

Richard J. Tyler

Jones Walker LLP, New Orleans, LA, Division 1 (Litigation & Dispute Resolution)