In this episode…
While some litigation receives little to no attention, allowing the proceedings to play out quietly, other cases catch the eye of the news or the public. When this happens, it is up to the defense lawyer to ensure a fair trial. Because of this, lawyers need the right toolbox to address pretrial publicity before it gets out of hand.
John Trimble has more than 30 years of experience handling complex and catastrophic cases. As he says, some of the best tools for navigating pretrial publicity are PR consultants and jury consultants. With the help of these experts, defense lawyers can effectively manage how a case is being perceived by the public and strategize the best ways to take it to trial.
On this week’s episode of Engaging Experts, Dan Rubin sits down with John Trimble, Partner at Lewis Wagner, LLP, to discuss how to effectively address pretrial publicity. Together, they talk about the impacts of pretrial publicity on a case, how injunctive relief plays out in practice, and John’s tips for effectively utilizing jury and PR consultants. This is an informative interview you don’t want to miss.
Note: Transcript has been lightly edited for clarity.
Host: Dan Rubin, National Business Development Manager, Round Table Group
Guest: John Trimble, Partner, Lewis Wagner, LLP
Introduction: Welcome to Engaging Experts, the podcast that goes behind the scenes with influential attorneys. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.
Dan Rubin: Hello and welcome to another edition of Engaging Experts. This is Dan Rubin, the National Business Development Manager of Round Table Group and one of the hosts of this podcast series. We have another stellar guest for you today. John Trimble is a partner with the Indianapolis law firm of Lewis Wagner. His practice focuses on insurance coverage disputes, bad faith defense, lawyer and insurance agent malpractice, business litigation, and catastrophic damages caused by all types of casualty risks, including transportation, construction, product liability fires, and governmental liability, to name just a few. In addition to frequently being hired by outside firms as local counsel in Indiana, John has also earned a reputation as one of Indiana’s most sought-after mediators and is the immediate past president of the Association of Attorney Mediators. He has also served on the Board of Directors of DRI (Defense Research Institute) and has been president of the Indiana State Defense Bar, as well as a past Defense Lawyer of the Year honoree. John, welcome.
John Trimble: Thanks, Dan. I am excited to be here. Thank you for inviting me.
Dan Rubin: Thank you and I am looking forward to diving right in, but before we do, here is a brief sponsorship message.
Announcer: This episode is brought to you by Round Table Group, the Experts on Experts®. We have been connecting with experts for over 25 years. Find out more at roundtablegroup.com.
Dan Rubin: John, I would like to discuss with you the topic of pretrial publicity in high-profile cases and how defense attorneys deal with that publicity. When we are talking about pretrial publicity, can you tell our listeners what that means to you, and can you give us some examples?
John Trimble: Sure, it means a lot of things and I would say it starts with a defense lawyer’s knowledge of the implicit biases of the community and where the catastrophe has happened. You need to know how they were raised. What their views are. Are they conservative, liberal, or moderate? That is your starting point because it gives you some idea of how they will be impacted by pretrial publicity. The best example I can give you, just as a starting point of pretrial publicity, is from the morning news that I watched this before we began this podcast. During that program, there were at least two advertisements for law firms and one of them talked about how insurance companies want to defraud you. They want to give you the lowest settlement they can give you. They will take advantage of you, so hire us. Another one was a firm that likes to handle trucking cases and the advertisement showed truck wrecks and trucks out of control. It certainly was portraying the message that trucks are dangerous, and they will kill you, so hire us. We must understand that after any catastrophe the local community has been messaged by advertising that is not only intended to get business for a law firm, but it is intended to color how the community views tort cases. Now from their pre-trial publicity is your local news and, of course, every morning when you turn on the local news, something bad has happened. Whether it is a police action shooting [or] a crash of some kind if you are dealing with a catastrophe, then the local news reporting it can be very intense and persistent, for example, in 2011 we had the stage roof collapse at the Indiana State Fair that killed seven people and injured seventy. The daily news coverage of that event went on for six months and even after six months, it continued with various anniversaries and human-interest stories about how victims recovered. Local news is big. National news influences. It used to be that people in the community were only influenced by the local news and that was their view of the world. But now with cable news, more times than not, people’s views of litigation and the judicial system are influenced by cable news networks that either supports the judiciary or attacks the judiciary and talk about big verdicts. So, you must be aware of what national news is coming into your community.
Then you also must think about what is on social media because every television station has a place for people to go online and comment about stories. Every newspaper has a place to go online and comment about stories. People comment and post on Facebook, Twitter, LinkedIn, and Instagram. All the social media outlets [offer places to comment] and people are influenced by what they see there, so there is a big hodgepodge of information that comes out after a catastrophe that colors and flavors the views of the local community. It is a fact of life if you are a defense lawyer.
Dan Rubin: It seems impossible to be a human being today and be isolated from any of it. You would have to put someone in a bubble. It is a major issue. How do you deal with it?
John Trimble: What is interesting, and I tell this to my clients after something happens, “When you are in the moment and you are in the crucible of that local news or national news coverage, it seems like the whole world is collapsing around you and you do not know what to do about it.” The reality is, [when] I will find out that I am defending something that I view as high profile and newsworthy, and I will be talking to somebody and they have either forgotten about it or don’t know about it. So, one of the realities of news is that the news cycles move so quickly that people move on from one story to the next and forget about ones that happened just a month ago. To answer your question, when a lawyer is hired after a catastrophe, they need to have a toolbox of ways to address pretrial publicity. It is something that you want to have assembled to bring out and use when something happens. If you are assembling it as it happens, you are a little bit behind the game. You want to have that toolbox together in advance.
Dan Rubin: Can you describe some of those tools you are talking about?
John Trimble: The first one that I would mention is public relations consultants. Anybody who is representing a party in a major catastrophe needs to have a PR consultant. They perform a whole array of functions that can be very essential at the beginning of the catastrophe as well as later. At the very beginning, you need a PR consultant who can monitor social media and news and see what is being said. Whether it is truthful, whether it is accurate, or whether it is totally off base, and offer advice as to whether your client should respond. Clients want to respond and quite often they respond incorrectly, or they respond with no comment, and they can make the situation worse by how they approach it. The PR consultant is available to help you and the client craft a strategy for how to respond, and that means drafting public statements, drafting social media postings, prepping the client representative for interviews, and prepping the lawyer. If the lawyer is going to be interviewed, creating an overall PR strategy is going to help at least shape the sharp edges off the public sentiment. They will also help you understand just what the public is thinking. I will use the state fair as an example. After the [Indiana] State Fair stage collapse, there was great horror and dismay from everybody for what had happened. But what we learned from our PR consultant was that the state fair was a beloved institution and hardly anybody in the community had not gone to the state fair at some point in time and had fond memories. Everybody wanted the state fair to survive this event, to go on, and reopen. What we learned was there was a reservoir of public support and warm sentiments that was underlying what was being said at the moment. So, they can help you. If that is the public sentiment, then our public statements and our interviews would have to be based on our knowledge that people love the state fair and would be forgiving, which they were. Without a PR consultant. you are just simply left to guess about those kinds of things, so that is critical.
Dan Rubin: Aside from PR consultants, are there other tools in your toolbox that you use?
John Trimble: Let me start with what I call injunctive relief. There is a Model Professional Rule of Conduct 3.6 which prohibits lawyers from making statements in the public domain that could influence pending litigation. One of the other tools in the toolbox is to be prepared if you must ask a court to enjoin lawyers or their representatives from speaking out, particularly inaccurately, about what is being said concerning the event that happened. That is kind of the second tool. I should also mention when you talk about pretrial publicity, plaintiff’s lawyers also hire PR consultants. During the [Indiana] State Fair case we were seeing media placements that were either coming from the plaintiff’s bar or from other defendants that were seeking to shape the public discourse about the state fair, so it is not just the defendants who use PR consultants. The plaintiff’s lawyers used PR consultants as well. Thus, injunctive relief is the next thing that comes to mind. [Injunctive relief] is to go before a judge and ask them to stop what is happening or to regulate it.
The next thing is getting the case into the right court. If you have the opportunity in the state where you are situated, you may be entitled to a change of venue from the county or city where the catastrophe occurred if you can prove that pretrial publicity is such that your client cannot get a fair trial, and that is where a PR consultant also comes into play because you use the PR consultant to help you accumulate evidence to present to the court. [If you believe] there is a basis for a change of venue from that jurisdiction, you show the court examples of what is being said and how pervasive it is to try to convince the court that the case should be moved somewhere else. It happens all the time in criminal cases. We do not see it very often in civil cases and it is a long shot, but it is a possibility. The other thing is if you are representing a client who is from another state then you may have a basis to remove the case to federal court. In federal [court], judges are typically tight–fisted about allowing pretrial publicity. You could be better off in a federal court. Plus, the federal courts tend to draw their jurors from a much broader geographical area so that you are not necessarily getting jurors that are right there from the community where the accident happened. The last point on getting into the right court is also delaying a trial. You typically want to get cases over as quickly as possible, but sometimes if pre-trial publicity after the accident has been terrible, [the attorney] may want to try to bump that trial out a year, so that there will be time for the public’s memories to soften and fade so that pretrial publicity is not as big an issue.
Dan Rubin: Interesting. John, you were talking about PR consultants, but I was not even thinking about the procedural tactics that are so important in the toolbox. I am curious, though, we at Round Table Group of course are in the business of referring experts. We have PR consultants. We have medical experts, other industry experts, damages experts. . . . very type of expert from A-Z in our network. I’m curious about another type of expert in our network, jury consultants. How do you use jury consultants in these cases?
John Trimble: That is the next item in my toolbox. Jury consultants. I use them a lot of different ways and I try to get them involved early. One of the mistakes that lawyers sometimes make is waiting until close to trial to get a jury consultant involved. If you are worried about pretrial publicity after a catastrophe, you want to get them involved almost as early as your PR consultant. What they will do, among other things, are public surveys. A lot of good jury consultants have programs where they can take a list of eight or ten questions that they developed with help of counsel to get a theme and then simply go out to the public and ask questions and get the public’s answer to the questions in the form of a survey. They can give you some good ideas about public sentiment about what is going on. It can be specifically related to the incident, or it can be a little more general, but tied to the incident and such that you get a sense of how the community feels about what has happened. From there, we talk about focus groups and typically we use focus groups when we are getting closer to trial. We are in litigation and we have started developing information about what happened. We have taken some depositions; we maybe even videotaped witnesses so we can see what kind of appearance they make and how credible they are. You bring in a group of people from the community and, either with or without the lawyers, the consultant can talk to these focus groups, show them videos, talk to them about the case, and get their reaction to whatever issues you are interested in hearing about. Beyond that is mock jury trials.
Mock jury trials, all over the board, can be very abbreviated. They can be longer, but in the right case we will have a mock jury trial, and we typically will try to bring in a group of people to hear the mock jury trial. We then divide them into separate groups for deliberation to see how different groups will deliberate and assess the evidence they have heard. I think mock juries are helpful. I am not convinced they are helpful on the value of the cases, although they may be. They are certainly helpful as to how jurors perceive themes, how they view your defenses, how they like your witnesses, and that is important when I talk about getting a jury consultant involved early. If you defend the case and you do not videotape any witnesses and all you have is transcripts, then mock jurors do not get to see the witnesses. I advocate that you need to videotape all your depositions so that if you do a mock jury, you can show the actual video to those jurors so they can assess the credibility of the witnesses. I am going on here, but another point we use jury consultants to assist us with [is] juror selection. They can be right there in the courtroom. We use them to help us develop our themes. How do we tell the story? How do we characterize our defenses? They are an important part of the toolbox, no question. They work arm in arm with the PR consultant, who is sharing information with them about what they have seen, heard, and feel about social media and news. [What is] the impact of news on the case.
Dan Rubin: It is truly eye-opening to me, the sheer amount of preparation that goes into these cases. Do you have a sense, John, of how successful these various tools and techniques can be?
John Trimble: I will give you an example and I cannot identify it too much because the statute limitation has not run on all the claims in the case yet, but I had a catastrophe a few years ago. It involved a commercial farm that was open to the public. Every community has one of these farms where kids go for hayrides. They get pumpkins, eat caramel apples and everybody goes there. Every child in school goes there. Families go there. Every community has one and I had one of those where many young children came down with salmonella poisoning, likely related to the feces of geese that had flown through the community, stopped, and ate corn on the ground in the petting zoo area. There were several children in the community who got sick, but they all survived. We used a PR and a jury consultant to help us shape our message to the public and to keep them advised on what the health authorities were saying about what had happened, and to help us understand just how beloved our client was when everything was said and done. No lawsuits were ever filed, and no claims were ever submitted. I am convinced to this day that our PR consultant and jury consultant helped us shape the message in the community. They helped to get and push news out about what was going on in such a way that everybody realized this was a pure accident and not anyone’s fault.
Dan Rubin: Right, I will not ask any more questions about it because as you said the statute of limitations has not run out, but I am fascinated by how they determined even the potential cause of the salmonella. Are there any other tools in your litigation toolbox that you use for these cases?
John Trimble: I will add a couple of other things that I mentioned earlier. Your jury consultant and your PR consultant will help you with this tool and that tool is voir dire. That is the jury selection process. A good jury consultant and PR consultant can help you create special juror questionnaires if the court is willing to allow them. They can assist you to do social media research on the jurors if the jurors can be identified. [Sometimes] you know the names of your jurors and other times you do not, but it is not at all unusual in some communities where you do know the juror names, [to have someone] do a quick background search just to see what they are putting up on Facebook or other places to give you some idea of how they view things.
Then they can help you with the theme of jury selection so that as you are asking questions of jurors in the jury selection process, you are staying on a consistent theme that is going to carry you through the rest of the trial. Sometimes we lawyers think we are amateur psychologists, and we know exactly what questions to ask and what themes to pursue. Good consultants can help you shape your themes and make a difference because the voir dire is an important time. It is the first time that jurors hear about the case. It is the first time they meet the lawyers. You want to get off on exactly the right foot. Did you go through that right?
The last tool that I would have in my toolbox… actually, I have two more things. One is how the lawyer drafts jury instructions, and the extent to which the lawyer asks the trial judge to admonish the jury not to engage in their [own] investigations or social media research about the case during the trial. One of the biggest dangers we have these days is that jurors will go home at night, Google the case and read what has been written in the news about the case. I am very particular to ask the judge to admonish the jury not to be doing social media research. That is another place where I asked my jury consultants to see what is being said on social media during the trial so that we know if there is a problem.
Dan Rubin: That cannot be easy. I cannot get my 11-year-old to not look at social media.
John Trimble: No, exactly. It is huge, Dan. A case can be lost or won because of jurors doing their own Google search. And what happens if they Google your client? Your client may have had no fault whatsoever for what happened, but if the client had a prior accident, some other place where they were at fault, then the juror’s perception of the client can be influenced by what they find in Google. It has nothing to do with the trial that is before them, so it is extra important.
The last thing is, I use PR consultants and jury consultants to prep witnesses, Again, it is part of the thematic preparation of the case. I like to have a PR consultant and a jury consultant, particularly a jury consultant looking over my shoulder remotely because I do not want attorney–client privilege to be an issue. I often like to videotape my witnesses as I prep them to give depositions or as I prep them to testify at trial. I may want the jury consultant to watch the video and give me input as to how I ask my questions, the words I use, and the order in which I ask my questions, so that I can best prep my witness to give a truthful and credible testimony that fits the theme that we have.
There is an expense involved in hiring consultants. Part of the lawyer’s role is to make sure that the client understands from the beginning how they are going to use the consultants, not only at the beginning but throughout the case, and how important it is. We are living in an age right now of tight legal budgets and it is not an easy sell because of the expense. The benefits are so critical that the lawyer must make the case to the client, “Hey, I need these people and here is why I need these people.” You just cannot assume that the client is going to go along with it. They will push back unless you convince them that this is critical.
Dan Rubin: Right, you need to sell them on the tools that you need to ensure that you win the case. We see that obviously in our requests for experts daily. Switching gears, John, to a more personal topic. Outside of your practice and career in law, what would you say you’re most proud of?
John Trimble: There are two things. My family. I managed to put in the years, yet be involved with my wife and my daughters. My daughters are now married with children and living in California. One of my daughters is a lawyer who does a lot of what I do, and I see her at professional meetings.
The other thing I am proud of is my love of professional involvement. I am a bar association junkie. I belong to a lot of our associations and I have enjoyed being a strategic planner for bar associations, as well as doing strategic planning for law firms through the years. Strategic planning for bar associations and law firms is my hobby. I get paid to do some of that, but it is mostly a labor of love because I make a lot of friends that way and enjoy it.
Dan Rubin: That is great, it is just so nice to hear how much you enjoy what you do both, both in the courtroom and outside the court. John, thank you so much. This has been informative, and I have learned a lot. I hope our listeners found it to be informative and enjoyable, too.
John Trimble: Dan, thanks for having me, and certainly any of your listeners are welcome to call me with questions anytime about any of these subjects.
Dan Rubin: Great, and they can find you on Lewis Wagner’s website, https://www.lewiswagner.com. Thanks, John.
John Trimble: You bet. Thank you.
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