Daily Business Review: Social Science Looks to Demystify the Jury Selection Process

The use of jury consultants who use empirical analysis to find out how a firm’s case will play in front of a jury before a trial ever begins has become standard practice — especially in high-stakes litigation.

By Dylan Jackson | February 20, 2019 at 06:09 PM

Screen Shot 2019-02-25 at 2.05.43 PMJury selection has long been a cryptic process, and every trial attorney has a juror war story and list of voir dire taboos.

Some have called it pure guesswork. Others have described it as a combination of psychology and the dark arts.

But Marjorie Sommer, co-founder of the Florida trial consulting firm Focus Litigation, believes lawyers have too many preconceptions about jury selection. She and her partner Geri Satin say the process need not be a mystery.

“It’s a numbers game,” Satin said.

Through qualitative and quantitative analysis (Satin has a doctorate degree in legal psychology from Florida International University) and with the help of a thousand focus groups, mock trials, and real-world verdicts, Sommer and Satin counsel law firms, companies and even government agencies about what type of jury could help their case.

Over the past two decades, the use of trial consultants has become ubiquitous in high-profile cases. In 1983, the American Society of Trial Consultants had less than 20 members. Today, the organization boasts nearly 300. While in its infancy, the industry was viewed with much skepticism. But as the digital era has matured, data analytics has grown more sophisticated, transforming jury consulting into a legal industry that is accepted and even embraced.

Much of their job, Satin said, is to demystify the jury selection process and use their combined 30 years of legal experience to provide actionable recommendations based on their findings…

“Here we are, all lawyers, and we’re trained on the legal issues. We’re not really trained on the social science part of it,” said Bruce Katzen, founding partner of Miami-based boutique litigation firm Kluger, Kaplan, Silverman, Katzen & Levine. “It’s good to hear how ‘real people’ react.”

After both sides argue their case, the mock jury deliberations are recorded for analysis and a verdict is rendered. Satin and Sommer then compile a report that can run hundreds of pages, stuffed with recommendations, quantitative analysis that uses a juror’s responses to specific questions to correlate a verdict. Advice to clients could include formulating precise questions for voir dire, pointing out what juries perceived as weaknesses in a case, and highlighting the most effective visual aids.

But their job isn’t only about jury selection. Satin and Sommer say some of their biggest “wins” come before jury selection even begins. If an insurance company has $500 million in exposure, and the focus groups and mock juries are returning consistent findings against their client, they will advise the client to work on a settlement instead of recommending a trial. If the company settles for $50 million instead of losing big in the courtroom, Satin and Sommer see that as a victory.

“One of the most reliable things we give is a reality check,” Sommer said.

Read the full article in the Daily Business Review. 

 

Super Lawyers Recognizes Kluger Kaplan

Florida Super Lawyers Magazine once again recognizes Kluger Kaplan Silverman Katzen & Levine for its top litigation expertise and experience.

Founding Member Alan J. Kluger was named one of the Top-100 attorneys in Miami by the publication. Also named as 2018 Florida Super Lawyers were attorneys Deborah S. Chames, Abbey L. Kaplan, Bruce A. Katzen, Todd A. Levine, Jason R. Marks and Steve I. Silverman. Additionally, attorneys Marko F. Cerenko, Lisa J. Jerles and Josh M. Ruben were named 2018 Florida Rising Stars.

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Florida Super Lawyers select attorneys using a patented multiphase selection process. Peer nominations and evaluations, combined with independent research, is evaluated on 12 indicators of peer recognition and professional achievements. These selections are made on an annual, state-by-state basis with an objective to create a credible, inclusive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

2018 Florida Super Lawyers:

Business Litigation (Years Selected):

  • Abbey L. Kaplan (13 years)
  • Alan J. Kluger (13 years)
  • Todd A. Levine (11 years)
  • Steve I. Silverman (11 years)

Family Law (Years Selected):

  • Deborah S. Chames (5 years)
  • Jason R. Marks (3 years)

Estate & Trust Litigations (Years Selected):

  • Bruce A. Katzen (9 years)

2018 Florida Rising Stars:

  • Marko F. Cerenko (4 years)
  • Josh M. Rubens (4 years)
  • Lisa J. Jerles (2 years)

Chambers USA Ranks Kluger Kaplan in 2018 Edition

Firm and Three Founding Members Ranked for General Commercial Litigation

USA Chambers 2018 Kluger Kaplan

We are honored that three of our Founding Members have been recognized in the 2018 edition of Chambers USA, one of the most esteemed legal publications in the world. 

Kluger Kaplan Silverman & Levine as a firm received a Band 3 ranking in the category of General Commercial Litigation. Additionally, founding members, Alan J. Kluger (Band 2), Steve I. Silverman (Band 4) and Philippe Lieberman (Band 4) were recognized for their commercial litigation work. 

The Chambers USA guide annually ranks preeminence in key practice areas, and achievements of law firms and lawyers throughout the country based on complexity of the work, firm growth and client service. 

The recognition by Chambers USA is the latest in a long list of accolades received by Kluger Kaplan. The firm in 2017 was named a Top Litigation Firm by the Daily Business Review, an ALM-affiliate and sister publication to the American Lawyer, Corporate Counsel and National Law Journal. The firm has also been named Best Law Firm by U.S. News & World Report, one of Florida Trend Magazine’s Legal Elite and one of Florida’s Top 100 law firms by Florida Super Lawyers Magazine. 

Attorney rankings by Chambers USA: 

Litigation: General Commercial (Band 3)

  • Alan J. Kluger (Band 2)
  • Philippe Lieberman (Band 4)
  • Steve I. Silverman (Band 4)

For full details on our rankings in Chambers USA 2018, please visit Chambers & Partners.

 

 

Crain’s Miami: If I Knew Then with Alan Kluger

Crain's

 

 

 

In this ongoing series, we ask executives, entrepreneurs and business leaders about mistakes that have shaped their business philosophy.

Alan J. Kluger

Background:  After building a successful 60-attorney law firm, powerhouse trial attorney Alan J. Kluger took a risk and launched Kluger, Kaplan, Silverman, Katzen & Levine eight years ago with a focus on litigation. Now recognized as one of the top litigation firms in the Southeast, the Miami-based practice has nearly doubled in size and recently opened an office in Minneapolis. Kluger is known for handling an array of celebrity divorces and has successfully litigated prominent cases from Hollywood to Wall Street.

The Mistake:

I was constantly selling myself. Early on in my career, probably 30 years ago, I would go to these events or people would invite me to different business functions. I was a business litigator. I would go to these things, and all I would do is talk about myself. And I thought it was really good to tell them all about me, and I couldn’t understand why I never got traction.

I was actually at an event at a group of automobile dealers in Atlanta. I was invited to speak and I spoke about a topic of law that I knew about, and then I started talking about me. And I looked out and I was getting no traction. I saw their eyes glaze over — and it sort of hit me.

I figured out that catching rather than pitching was the key to success.

And what started to happen after that — I’d pick up clients anywhere. I will be on an airplane, at a dinner, traveling with my wife somewhere in the world, and I will have a conversation. And it will go on for 20 minutes and I will know everything about them. And they don’t know anything about me. They don’t even know what I do.

And then they’ll turn around to me and they’ll say, “What do you do?” And I’ll say, “I collect art and I travel.” “No, no — what do you do to make money?” And I say, “I’m a trial lawyer.”

And then my wife will say, because she’s a former judge, “He just took your deposition.”

People don’t want to hear about you. They want to know that you care about them.

The Lesson:

I realized that, in my business, what I do is I learn all about my witnesses. I ask them questions and I find out all about them. And I realized two things. One, people want to talk about themselves. And in my business of being a trusted advisor and doing litigation, where people’s lives and their businesses are on the line, I really can’t give them advice unless I really know them. And you can’t say to somebody, “Tell me about you.”

So I decided that I would focus the conversation. So I say, “Where are you from? Where did you grow up? Did you go to college and what did you study?” Within 25 minutes, I know everything.

Continue reading in Crain’s Miami.

Daily Business Review: South Florida Midsize Law Firms Find Room for Fee Options

Daily Business Review

 

By Catherine Wilson

The buzz about alternative fee arrangements has gotten louder in recent years, and many midsize law firms in South Florida have carved out space for something other than the straight billable hour.

AJK High Resolution“It’s becoming more and more of a topic, especially in big commercial cases, where it really wasn’t before,” said Miami commercial litigator Alan Kluger, co-founder of the 32-attorney Kluger Kaplan. “Clients are more receptive than they used to be.

The field of possibilities is open on the client side.

“Every single client, with the exception of maybe the Fortune 50, are potential clients to do alternative fee agreements, and the main thing they tell you is the shifting of the risk solely from the client to the client and the lawyers makes them happy,” he said.

But opinion is split on the willingness of clients to switch away from billable hours to AFAs.

Gary Rosen, managing shareholder of the 92-attorney Becker & Poliakoff, said he attends a lot of professional conferences, and “there’s been a lot of talk about AFAs in the past 10 years generally.”

“In reality, AFAs have not grown as dramatically and have not become as significant a component of the overall legal landscape as many have predicted, and the reason is it’s not that lawyers are uncomfortable with it. For the most part, it’s clients who are uncomfortable with it,” he said. “Clients have shown a reticence to move much more significantly into the AFA environment.”

Clients like the idea of predictable legal fees, and alternative arrangements are keyed more to specific clients than practice areas, said real estate litigator Ryan Gesten of the 21-attorney Shapiro, Blasi, Wasserman & Hermann in Boca Raton.

“I’ve been practicing 17 years. I’ve handled 1,000 matters on contingency,” he said. When considering a request for alternative fees, “it’s almost like we know it when we see it.”

Attorneys at South Florida midsize firms said alternative fees represent as little as 10 percent of total revenue and as high as 80 percent of cases, with litigation being a common practice area for AFAs.

The types of cases most likely to foster alternative fees at Kluger’s litigation firm are third-party and bad faith insurance claims, legal malpractice claims and breach of warranty claims.

“Those cases get resolved because it’s money. It’s just money,” he said.

Continue reading in the Daily Business Review.