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Verdict is in: trial success can often be a matter of psychology
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Cynthia Cohen of Verdict Success |
by Jerry Roberts
The upswing in litigation has not only led to more lawyers and lawyer jokes, it has led to growth in ancillary legal professions. Expert witnesses in fields as varied as sports medicine, crime scenes, real-estate fraud, pharmaceutical sales and practically any field hop from case to case. And more than 500 firms or individuals working as trial consultants have populated the U.S., many of them in the South Bay, according to Cynthia Cohen, a Manhattan Beach trial consultant who came to national notoriety in 1994 during the O.J. Simpson trial.
Cohen, who works out of her Tree Section home, has been a commentator for CNN, E! Entertainment Network, Entertainment Tonight, Fox News, KCAL-9, the BBC and other news organizations and television and radio stations. She looks forward to celebrating her 15th anniversary as an independent trial consultant on Friday.
"After the O.J. trial, I would get resumes every week," said Cohen, whose widespread exposure from the trial helped to popularize the profession. "There are more in the South Bay than anywhere else in the United States. There’s just an awful lot of litigation in the Los Angeles area and much of it here. I used to say that I was No. 1. But now there are other people who are as well-known as I am." The consultants are listed in a register called the Los Angeles County Bar Association Annual Directory of Experts and Consultants. Her company, Verdict Success, is operated out of her home. Her web site is www.verdictsuccess.com.
What doesn’t a lawyer know about winning a civil case that a Ph.D. in psychology — such as Cohen — can tell him or her? Plenty, says Cohen, who outlined what she does in several articles published in such journals as the one above and The Practical Litigator.
"Each case is different," she said. "Jury consultants identify the trial team’s needs and determine what is feasible." She said that when she is hired, she determines the goals of the trial team, develops a case strategy based on them, then concentrates on jury selection, the damages and settlement decision-making, the time and money consulting costs and the lawyers’ ability to trust the research. "Confidence in the jury research results is critical," she said. "Properly conducted jury research can give great insights for developing case strategy and jury selection."
Because she comes from a psychological viewpoint, Cohen often acts as a marriage counselor would, explaining decision-making that will aid a particular case in terms that are understandable to the client and trial team. Often the same words will mean different things to different people, and Cohen acts as a clarifying agent. "I try to find the epicenters of cases and how a jury will play into a particular scenario,." she added, saying that many lawyers think that jury selection can make or break cases. She believes that it’s only one of three equally important aspects.
"There’s a tie in importance between jury selection, the evidence and case themes," she said. "Jury selection is about finding expectations in people that are going to color that case. There’s always bias. Jury selection is about finding bias. On one jury we were picking, one woman very much looked like Erin Brockovich," she said about the California woman who beat City Hall, so to speak, by instigating a class-action suit involving families who suffered the ill effects of living near a power plant. A movie named for her won Julia Roberts the 2000 Academy Award for best actress.
"She would blurt out whatever she wanted to say in court and not in the judge’s chambers," Cohen said. "She was a very angry person. Things she said were very threatening and scary. Her bias was blatant. She obviously thought she was right. People are not generally aware of their biases. How we see a case is filtered through our own experiences. Separating out bias is important. You have to avoid runaway juries and jurors — someone who’s going to be extreme."
Cohen’s cases often involve the simulation of trials — mock presentations. Questionnaires often bring in more data. "Then we crunch the numbers and interpret them and be creative with that." Cohen said that her blanket approach using a variety of skills makes her something "of a phenomenon." She overlays criminal psychology with experience in research design and communications.
Born in Elkhart, Ind., she was the fifth child of a concrete factory owner who also built shopping centers. She attended UCLA and USC simultaneously and received her Ph.D. from the latter in 1984. Her dissertation was entitled Communication Skills and Cognitive Processes in Productivity Reducing Uncertainty in Ambiguous Instructional Messages. She joined the now defunct Litigation Sciences in 1985, then went on her own in 1986.
Cohen is widely sought as a speaker, and has delivered talks on such subjects as "Gender Issues in the Courtroom," "Demeanor, Deception and Credibility — Jury Selection Beyond Intuition" and "Sexual Harassment — The Jury Trial" for a wide variety of groups in Las Vegas, San Francisco, Chicago, Nashville, Cleveland, Orlando and elsewhere.
Cohen said that many of her cases settle out of court, and her workload is about 12 to 15 cases a year. "For some I may just work on witness preparation," she said, "others are just on theme development. On some, I work on all aspects of the whole case." She keeps most of her cases confidential, but allowed that she did work on the Orange County, Calif., bankruptcy case and was in former Beach Boy Brian Wilson’s corner when another band member, Mike Love, sued him. That case was settled out of court for an undisclosed amount.
Annoyances in her profession include postponements and motions to delay. Several times a year she spends a month preparing a project and gets up on D-Day, so to speak, heading to the courthouse thoroughly prepared, and the judge reschedules the case. "That can be really tiresome," Cohen said. Her local involvements include sitting on the Manhattan Beach Chamber of Commerce Board of Directors and the program committee of Leadership Manhattan Beach.
Some people believe that she should be or wants to be a lawyer. "My brother, William Cohen, is a trial lawyer in Indiana," she said. "He became the youngest lawyer to argue constitutional law in the U.S. Supreme Court, in 1982 — the Mennonite Church vs. the State of Indiana -- after they lowered the arguing age. I did a study with him, and he said to me, ‘You’re trying to be a lawyer.’ I laughed. Because I really have the best part of it. I’m a doctor of psychology and I’m the link between the lay person and the lawyer. I work from a psychological perspective
"I’m happy being a psychologist and wouldn’t want to be a lawyer." ER