Trying Conspiracy Cases

Many antitrust conspiracy cases are resolved before trial. Civil cases
settle and criminal defendants often enter into plea agreements. Some
cases, however, go to trial. Each antitrust conspiracy trial presents its own
unique issues and challenges, but they almost all share two key features:
high stakes and complexity. This chapter examines recurring issues and
key considerations that the litigator may need to address in a jury trial of
an antitrust conspiracy case.1
A. Pretrial Issues
1. Jury Consultants
The high stakes and complexity of antitrust conspiracy cases lead
many lawyers to retain jury consultants in advance of trial.2 Consultants
1. The Constitution entitles criminal defendants to a trial by jury. U.S. CONST.
amend VI. Rule 23 of the Federal Rules of Criminal Procedure requires
that criminal trials be by jury unless the defendant waives a jury, the
government consents and the court approves. Fed. R. Crim. P. 23. The
Constitution also entitles civil plaintiffs in antitrust cases for damages to a
jury trial (U.S. CONST. amend VII), and the y almost always demand it i n
their complaints.
2. See, e.g., Lisa C. Wood, Using Jury Consultants in Antitrust Cases, 26
ANTITRUST 101, 101 (Fall 2011) (“Most trial lawyers would not dream of
trying a significant matter to a jury without the assistance of a jury
consultant. Antitrust cases are no exception.”); Roundtable: Trying Cartel
Cases, 28 ANTITRUST 11, 12 (Spring 2014) (noting that Antitrust Division
of Department of Justice uses jury consultants); Nicole LeGrande &
Kathleen Mierau, Witness Preparation and the Trial Consulting Industry,
17 GEO. J. LEGAL ETHIC S 947, 948 (2004) (“[T]he use of litigation
consultants is so popular that some comment that ‘it’s no longer an issue
of whether to use a trial consultant . . . but which one to use.’ . . .
‘[L]awyers who fail to conduct jury research or engage in other trial
preparation techniques could leave themselves open to malpractice
claims.’” (citation omitted)).
270 Proof of Conspiracy Under Federal Antitrust Laws
can help lawyers simplify a voluminous and complex record, craft a
coherent story, present evidence in a compelling way and develop
strategies to deal with juror biases.3 Consultants can help not just with jury
selection, but also with pretrial demographic research, courtroom logistics,
and trial strategy.4 Additionally, consultants can help shape themes
throughout the pretrial process and at trial.5
Lawyers should exercise care in selecting a consultant. The trial
consulting industry includes hundreds of firms, many of whom are
members of the industry’s professional organization, the American
Society of Trial Consultants.6 While counsel may want to begin their
search with the Society’s website,7 the industry is unregul ated and no
particular professional qualifications are required.8 Therefore, it is
imperative for counsel to check references and confer with colleagues and
other lawyers who have used a particular firm in the past, particularly those
who have been involved in similar antitrust cases.9
3. See Gregory J. Ford, How to Talk to a Jury in a Complex Business Case,
66 AM. JUR. Trials § 1 (1998) (“a litigator’s task is complicated by the
unique challenges that are inherent in complicated b usiness litigation. Will
the jury understand the issues, law, and facts of the case? Will they stay
awake through tedious testimony, and more importantly, pay attention and
carefully evaluate the often-voluminous documentary evidence presented
in such trials?”).
4. See, e.g., Franklin Strier & Donna She stowsky, Profiling the Profilers: A
Study of the Trial Consulting Profession, Its Impact on Trial Justice, and
What, If Anything, to Do About It, 1999 WIS. L. REV. 441, 451-55 (1999).
5. See Diana G. Ratcliff, Note and Comments, Using Trial Consultants: What
Practitioners Need to Know, 4 J. LEGAL ADVOC. & PRAC. 32, 39 (2002)
(“An attorney who contacts a consultant early in the process will have
many more options available due to the variety of research tools that are
available to help both criminal and civil attorneys in the pretrial phase.”).
6. See LeGrande & Mierau, supra note 2, at 947-48; John W. Clark III, The
Utility of Jury Consultants in the Twenty-First Centu ry, 42 CRIM. L. BULL.
197, 198 (2006).
7. See
8. It has been noted that anyone can enter the field and identify him or herself
as a trial consultant. See Strier & Shestowsky, supra note 4, at 478; see also
Clark, supra note 6, at 199 (“Interestingly, there is no minimal education
required for membership in the American Society of Trial Consultants, nor
is there any continui ng education requirement.”).
9. See, e.g., Ratcliff, supra note 5, at 43 (“When looking for a consultant, the
attorneys who were interviewed unanimously advised getting a referral
from a colleague . . . . The best evaluation of t he consultant’s skill s is
Trying Conspiracy Cases 271
Probably the most relevant qualification apart from referrals, however,
is prior experience in complex cases. Counsel can likely benefit from
seeking out consultants who have worked on antitrust conspiracy issues
and, thus, have experience with the legal and economic issues that such
cases entail.10 Though other factors, like experience in the trial venue, are
important, they should be viewed more as additional advantages for a
consultant who already meets the needs of the case.11
Once counsel retains a consultant, the next step is to determine which
services offered by the consultant are appropriate for the particular case.
Early in pretrial proceedings, jury consultants can employ polling and
community attitude surveys to help measure community reaction to
corporate defendants.12 For defense counsel, these surveys can inform
whether a change of venue motion is appropriate and can serve as the basis
for that motion.13 Trial consultants can also carry out juror profiling
surveys. In these surveys, the respondents are asked demographic,
experiential, and attitudinal questions then they are given a case vignette
and asked which side they would tend to favor. Based on the correlations
between respondents’ verdict preference and their responses to the other
questions, juror profiles are constructed in order to help guide jury
usually obtained fro m attorneys who have previo usly worked with the
10. See, e.g., id. at 36 (“The consultant may be able to draw on experiences
from similar cases to help the attorney strategize and prepare the case.”).
11. Meaningful data for case planning comes not from “previous trials in the
jurisdiction, but rather from direct information and analysis of the case at
hand.” Susan E. Jone s, Use of Jury Consultant in Civil Cases, 49 AM. JUR.
TRIALS 407, § 55, at 486 (1994).
12. Ted A. Donner et al., JURY SELECTION STRATEGY AND SCIENCE § 11:1 ( 3d
ed. 2013) (3d ed. 2013) (“Regardless of whether the case is a multibillion
dollar antitrust case or a small dog bite case, venue research is available to
trial counsel to better understand the community in which the case is to be
tried. . . . Community sur veys have become a popular, and some would
argue powerful, means of developing voir dire and trial strategies.”).
13. See, e.g., Ratcliff, supra note 5, at 41. For example, the venue motion i n
the Skilling trial was based on communit y attitude surveys conducted by
jury consultants who found that eligible jurors in H ouston had an unusually
high level of animus to ward former Enron executi ves. See Decl. of Philip
K. Anthony in Support o f Defendant Jeffrey Skilling’s Joint Motion to
Transfer Venue, United States v. Causey, 2004 WL 5039947 (S.D. Tex.

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