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 Doug Keene 2008-2009 ASTC President |
July 1, 2008
For me, one of the most meaningful events at the recently concluded annual conference of the American Society of Trial Consultants was the awarding of the lifetime achievement award. History, even recent history, teaches us lessons we can’t afford to forget.
Susie Macpherson presented the award to Margie Fargo, and they both spoke of the challenges of trial consulting in the 1970’s and early 1980‘s. Margie’s experiences as a very young woman in the deep south, working to challenge court systems that routinely loaded jury boxes with citizens hand-picked by municipal leaders and unrepresentative of the venire, were shocking were shocking and inspiring. And they made me proud. Unlike Margie and others, I have never been shot at or threatened for my efforts as a litigation consultant, but I want to believe that I am doing justice to their courageous efforts.
Chris Dominic, outgoing ASTC President, observed that Susie and Margie and others in the ASTC were the pioneers, and we are now the settlers. Pursuit of justice is always frontier territory, but while the frontier is still challenging, the risks are less daunting. That story was important; it is easy to forget how precarious justice is, and how readily it can slip away.
The role of the ASTC in support of litigation has evolved since its earliest days. Once, the primary client groups were criminal defendants and those facing serious civil rights obstacles to justice. That group is still a major focus of member efforts, both in regular practice and in a thriving pro bono effort by Society members across the country. The role of sophisticated social science, cognitive science, communications, and graphic design principles have guided the practice into territory unknown 30 years ago, and ASTC members are in the forefront of both the research and the practice. We have a lot to be proud of.
Occasionally someone will ask me whether litigation consulting somehow subverts justice by tilting the playing field in favor of the side that has the money to hire those with our skills and experience. The implications of the question are huge. Doesn’t the question really mean that a more thorough preparation of a case is a subversion of justice? That jurors who are less clear about the importance of issues and facts are somehow in a better position to decide crucial issues? That juries that are biased or prejudiced – consciously or unconsciously—serve justice better?
Having an experienced litigation consultant working on a case is a valuable resource, but it does not alter the facts or the core values of jurors. It does not ‘deliver’ a verdict, but it can make the case for a client more clear and compelling. ASTC members commit themselves to following a code of ethics and practice that has at its core a reverence for the integrity of the judicial system that we serve. The investigative power and evidentiary advantages of the government in criminal cases far surpasses any influence that can be found in rhetoric or social science. And in case some readers of this column may not know, ASTC members routinely work in support of prosecution and in support of defense on key criminal matters, most particularly those involving civil rights issues and capital crimes. And in civil cases, ASTC members routinely contribute to both sides of substantial disputes.
The role of litigation consulting is to maximize the opportunities for a jury to comprehend what is crucial on behalf of our clients, and to avoid being distracted by the irrelevant. From the civil rights cases of the early 1970’s to today (still civil rights cases, but also much more) the challenge has always been one of highlighting the untold story, and assisting some of the most dedicated and underpaid people in America - jurors - to understand what is key in a dispute. We have a lot to remember about how far we have come, and have much work to do to sustain that noble beginning.
Over the next year I will be writing to you about the efforts of the ASTC to advance our role as the preeminent source of information, education, and practice standards for our profession. But now, approaching the July 4th weekend, we should not forget the extraordinary experiment in democracy that is our judicial system. It is a gift from the founders of this Republic that we cannot afford to lose.
"No nation however powerful, any more than an individual, can
be unjust with impunity. Sooner or later, public opinion, an
instrument merely moral in the beginning, will find occasion
physically to inflict its sentences on the unjust...The lesson
is useful to the weak as well as the strong."
--Thomas Jefferson to James Madison, 1804.
Sincerely,
Doug Keene
President, American Society of Trial Consultants