Trying Conspiracy Cases

• Pages: 269-305

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CHAPTER IX

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 http://www.astcweb.org.

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

selection.

usually obtained fro m attorneys who have previo usly worked with the

consultant.”).

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.

2004).