Group Psychotherapy & Psychodrama Conference – San Francisco, 2006
Psychodrama and Trial Preparation ©2006

A.        INTRODUCTION:

 “The slow one now will later be fast
As the present now will later be past
The order is rapidly fadin’.
And the first one now will later be last
For the times they are a-changin’.”
 The Times They Are A-Changin’
 Bob Dylan

Psychodrama is a powerful search engine for truth, as is a jury trial focus group.  Combined, they refine the client’s real story, before experiencing a Jury trial.  The art form that emerges from this combined practice, I believe, promotes justice.  The client is heard, and an accurate story can be efficiently told and demonstrated in court.  More importantly, Judges and juries respect attorneys who respect their time.  This article will explore the delicate relationship between the use of Psychodrama and Focus Groups in jury trial preparation, with the intent to further their application in the legal field for positive change.

I want to emphasize – as a trial lawyer – it’s best to utilize a board certified psychodramatist (CP or TEP) if there is a risk of serious client trauma in re-enacting an event.  If not, then there’s no need to hire one, in simple cases - or where the protagonist is not the real court case client. In balance, many clients simply can’t afford the extra case costs.  However, my choice is to have a psychodramatist or psychologist present if possible.  It’s apparent to this author; standardized guide lines should be developed on the issue of what settings need a professional.

Let’s first explore the focus group process, then move into how to apply Psychodramatic techniques (non-therapeutic or traumatic reenactments) in a focus group and then – courtroom setting.  I’ll illustrate a few real life cases (criminal and civil) that benefited from the two processes.  This article is an attempt to explain of how to safely, effectively and economically use the above two processes in the legal arena – from a trial lawyers’ perspective.  You will learn how to apply your psychodrama skills in a lawyers office, and assist the lawyer during all stages of a courtroom drama.

 B.        FOCUS GROUPS:

Although this topic can be the subject of an entirely separate power point presentation, I will cover the basic mechanics.  Over the last 10 years, I’ve conducted over 100 focus groups for my clients and for friends.  Many cases went to a jury verdict.  Thus, I’ve adjusted my techniques and methods accordingly.  Here’s how I economically begin to refine my legal case, and find my client’s story.

First, spot the case issues that you want refined.  I suggest identifying three issues in a three hour focus group.  This includes legal, bias, emotional, or relationship issues.  This takes a lot of thought, and often evolves as you prepare the case.  The case facts dictate the above issues.

Then, call a temporary employment agency and request a jury of six (likely 5 will appear).  Explain to the agency the need for a diverse cross section of your local jury pool, (i.e. a mixture of age, race and gender)  Pay the jurors fairly, so you find people who are genuinely interested in working, not just making extra money.  Skilled temporary agency workers closely mirror real jurors because they often resemble the jury pool.  In my community, the jury commissioner pulls names from the voter registration and department of motor vehicle indexes.  Cross pollination of jurors is also an option, by using lawyers’ clients (with pending trials) to substitute for hired mock jurors.  This allows them to role reverse and better understand the jury deliberation and court process.  This is also a cost saving measure for indigent clients.

Next, meet with the attorney in advance and request the necessary paperwork.  Ordinarily, a police report, photos, simple medical exhibits and a couple relevant jury instructions will do.  In an attempt to make this process accessible, my fees start at $750.00 (this includes the jurors at $15.00/hour for 3 hours).  If a Psychodramatist (CP or TEP) or psychologist is used, I gladly add their fees.

On the morning of the focus group – have the client appear an hour early.  Here’s where the Psychodramatist bonds with the client and trial lawyer.  This warm-up process is helpful to explain the focus project goals.  This comforts the client.

Often, I prescreen my clients with a simple questionnaire designed by a psychologist, in order to alert me to my client’s emotional sensitivities.  If their coping skills are weak, I limit the reenactment – especially if people have explosive personalities.  If I have a sensitive issue, I’ll ask the therapist for their guidance.  This can be done in advance or on the spot.  Certain individuals are best helped by professionals.  If a psychologist is present during the focus group – I adjust my focus accordingly by encouraging them to take an active role in the process.

When the warm-up hour expires, the mock jurors begin arriving to my office.  Treat them like real jurors, no glad handing.  I usher them politely into my conference room – which is equipped with a video camera on a tri-pod.  They are told the proceeding is recorded.  That camera records and projects their deliberations into a separate TV room.  The jurors sign a consent and confidentially agreement to preserve the attorney-client and work product protections.  Then, jurors familiarize themselves with a basic case questionnaire – which they’ll be asked to fill out after hearing the lawyers’ presentation. 

Now, the lawyers begin, with the client seated in the room.  Lawyers ask 3-4 Voir Dire questions, like they are picking a real jury.  This helps uncover juror bias.  As we all know, there are a variety of them.

Then, a brief opening statement (outline) of the case is given.  Once that’s done, the client is asked to stand, raise his hand and swear to tell the truth, just like in court.  He is then briefly examined, then cross examined. 

Before jurors begin to deliberate, they are given the case exhibits and jury instructions to view.  They are asked to fill in the questionnaire, and but not deliberate.  They record their views.  Once this is done, they break for 10 minutes then return to deliberate in mass.  The entire jury deliberation is audio and video taped for later submission to the trial attorney, along with the completed questionnaires, and my final report.

While the jury is deliberating in the closed conference room, the attorney and client view what issues and facts the jurors find important – usually assumptions are made based on their own biases, prejudices and experiences.  The lawyers quickly jot down juror “nuggets” of information. 

Finally, when the jurors reach a verdict, I tap on the door, and enter.  The jurors are reminded that the client has left – so they feel safe and give candid responses.

At this time, as director, I debrief the jurors, asking the basis of their decision on each issue, and what else would they like or needto know to help reach a decision.  They are asked what exhibits were helpful.  Often, jurors modify their original questionnaires – after a group discussion.  They are thanked and excused.  Then, the client is met for a “cool down” lunch to share feelings and ideas.

At last, your case is polished for a better understanding of the truth.

C.        Here’s where Psychodrama fits in:

By way of introduction, most mental health professionals are aware of the five tools used in Psychodrama to explore the truth, but let me restate them for the benefit of the legal professionals.  They are:
A stage i.e. (conference room or court).
 
The client – often referred to as the protagonists whose case is put into action.
 
A director – a person sensitive to the clues that evolve in the Psychodrama.  The director will often warm up the client in a walk about where the client “checks in” and soliloquizes how he feels before the scene is set and the psychodrama begins.
 
Auxiliary egos – act as extras that are extensions of the director and client.
 
The audience – offers feedback during and after the Psychodrama.

D.        Application of Psychodramatic Principals and Technique to a Focus Group:

As explained, the initial client warm up (before the jury arrives) helps the client soliloquize and vividly “scene set” before the actual focus group begins.  The case senses, (sights, smells, and sounds) are brought to life, along with the client’s inner voice.  This process also helps the trial attorney tune into the case and client.

The Voir Dire (jury selection) allows trial lawyers to explore hidden juror bias.  During voir dire, lawyers question jurors about whether the case is one in which they want to serve.   They can be excused without cause in a limited number, or with cause if they are determined to be biased.  To effectively voir dire, lawyers often self disclose their fears in order to encourage jurors to feel safe and talk openly.  Seasoned lawyers validate juror’s feelings.  i.e. by reversing roles, with prospective jurors, to sensitize themselves with the jurors point of view.  A good friend calls this “getting on their train ride and destination.”

The reality is that no matter how good a case (or lawyer) a client has, unless the jurors form a bond with the trial lawyer and identify with the client’s case – it’s hard to move the jurors to a favorable decision.  In California, a decision is reached when the necessary vote is obtained.  (9-3 for civil and 12-0 for criminal.) If a jury is hung, a mistrial is declared.

So, the lawyer must think like a juror during the Voir Dire and hopefully reverse roles to  see the juror’s perspective.  This is done through pointed, yet open ended questions prepared in advance of the focus group.

Now that the jurors are picked, an opening statement of the case is given.  Many trial lawyers will scene set and then move into action by reversing roles and telling the client’s story in the “first person” – as opposed to being a talking head….i.e. “the evidence will show…”.  Instead, the trial lawyer reverses roles and talks in the “here and now”…showing the jury what happened.  My clients are instructed to find three scenes to act out, instead of lecturing the jury.  This brings their story and personality alive.

On direct exam of the client, open ended (as opposed to leading questions, i.e. “Isn’t it true that…..”) are generally required by law.  For example, who, what, where, why, and when questions.  Again, the scene is vividly set and the action begins.  The story unfolds in my cases, with the beginning, middle and end.  The characters are introduced, the plot points established, a conflict is defined – then resolved.  This is abbreviated in a focus group due to time limitations.  Economics in a three hour focus group are relevant, and this will be further discussed herein.

The client’s inner voice is heard (i.e. his fears and feelings) when he testifies.

Sometimes, I switch roles and double (pretend) I’m the prosecutor (while defending my client on direct exam).  I warn the client I’m going to do this, so he remains confident.  I ask the client questions in a slightly sarcastic tone, in order to reverse roles with what some jurors may be thinking – but are not able to ask the witness while seated as a juror.  I stand close to the edge of the jury box – as if I’m an extension of jurors – on this stage we call a jury trial.  This spontaneously tests the client and builds juror credibility because the jury sees you’re asking tough questions they want to know.

Whereas, on cross exam I might softly question an adverse witness in order to draw out their true story, instead of trying to intimidate him.  I empathize with the witness, take his side.  I, even reverse roles, even with the stubborn police officer (i.e. it’s dangerous out there….you don’t want to be reprimanded for making a false arrest). 

Conversely, when I act as a prosecutor and cross examine an opposing lawyer’s client (i.e. defendant in a criminal case), I might try to feel the needs of the defendant – client.  (i.e. you’d say anything to stay out of jail – you don’t want to go back to that hole.)  This same “soft-cross” can be used on adverse witnesses too.

Simply stated, cross examination can be done by using the adverse witness as a vehicle to “story tell” your case – regardless of the witnesses answers.  If told enough times, your clients’ story begins to take shape.

Certainly you can do a closing argument in a focus group – in order to tie up all the lose pieces or evidence, but normally there’s no time in a three hour focus group.  Besides, it’s helpful to let the jurors formulate their own conclusions, instead of trying to persuade them.  Let them develop their own concepts about your case.  That’s the point of a focus group.

If a closing argument is made, the same opening statement principles can be used, i.e.  talking in the first person of key witnesses by role reversal, or becoming the witnesses’ inner voice with the goal of exposing the real truth to the story.

Most of my focus groups last three hours, with the jury deliberation occurring the last hour and a half.  Debriefing the jurors takes thirty minutes. (Remember, you’ve already seen them deliberate on close circuit T.V., so debriefing can be easy – I further probe the basis for juror conclusions).  This debriefing might be considered the post act sharing of Psychodrama.  It wraps up everyone’s feelings – so they regroup and go home settled, as is done with the client at lunch thereafter.  Many times jurors voluntarily stay and express their interests.  Some even phone in after the trial to see how it ended.

CASE SPECIFIC EXAMPLES:

Many of my criminal cases hinge on a critical point in time, either before the arrest or during the trial.  Timing, relationships and emotions are fertile ground for a focus group psychodrama.  Below are a few criminal and civil case examples used from a focus group and from psychodramatic principals to connect with the jury.

CRIMINAL LAW:

1. Jesus S.
Jesus S. is a 50 year old Hispanic cement finisher and family man who was repeatedly terrorized by gang member neighbors.  One evening, while buying food at a 7-11 store, for his next days’ lunch, he was quickly approached by Hugo - a gang member – bully.  Hugo acted loud, aggressive and drunk.  When Hugo pointed his hands (like he had a real gun) at Jesus, Jesus quickly drew a gun off his truck bench seat, and shot the bully 3 times – in the head, neck and back – as Hugo spun around from the first two shots.

Jesus feared for his life, so he shot – then fled for 6 months.  When he returned for trial it was important to establish Jesus’fear was real – to support a self defense argument.  This issue was focus grouped.  The entire past neighborhood gang activity came into evidence. 

During our investigation, a key scene was witnessed by a 7-11 store customer – buying a pack of cigarettes.  He saw the shot gang member stagger to the front door of 7-11, then fall down on his back.  Immediately, Hugo’s brother squatted down, looked both ways, and then pulled what the witness felt was a gun off

Hugo.  The brother quickly hid the gun in his coat, and briskly ran off into the dark night.  This was done before calling 911 to help his injured brother!  (Which he did do when he returned several minutes later.)  This second issue supports the real fear experienced by Jesus – so the witness’s relationship with his wounded brother at the scene had to be focus grouped.

During the four week jury trial, the prosecution paraded many witnesses into court, showed off bloody clothes and graphic photos of the shot man hooked up to life support tubes in the hospital.

In preparation for the defense, I visited Jesus S. in jail (a small glass-metal box) and reenacted his fears.  We set the scene with times when the gang members spilled chicken blood on his porch, scared his daughters and wife by parading in front of their house drunk – listening to loud car stereo music – and taunting the family.

Jesus, then explained why he carried the gun – because the threats to him and his family were getting stronger.  So, Jesus wanted to protect himself – which is what he did when Hugo pointed at him (at close range), at night, in from of 7-11.

So, Jesus shot first – out drew the gang member.  This critical scene was played out when Jesus testified in court.

The third issue that was tested during the focus group was under what circumstances it would be acceptable to shoot another person.  Knowing this tipping point helped pick the most favorable jurors.

During trial, the cigarette witness testified.  He set the scene, how he went into 7-11 for cigarettes, heard shots, then exited and witnessed the exchange (hand off) of the gun from Hugo.

Using the courtroom floor, I laid down in front of the juror’s box and asked the witness to imagine I was Hugo the gang member, and show us how the gun was handed off.  The witness stepped down from the witness box, squatted down, bent over me and took the gun from me, looked around while squatted down – then went back to the witness box.

The jury could now see, using scene setting, my role reversal and the court room stage, the feelings and story.  The jury acquitted Jesus S. on the attempted murder, which carried a 25-life sentence; and voted 9-3 for Not guilty on the lesser included charge of attempted voluntary manslaughter and illegal possession of a loaded gun.  His case then settled.  Ultimately, it was the investigation and time spent with Jesus S. and his family that helped me to identify key issues.

2.   Maurice J.

A second story involved Maurice J., a black Vietnam veteran, who was charged with caring a loaded concealed pistol into a karaoke Piano bar, and then driving away while under the influence of alcohol.

Maurice, in preparation, told me about his Vietnam experiences, including carrying a wounded friend on his back, then jumping off a cliff into a river in order to escape Vietcong chasing and shooting at him.

He even showed me black and white photos of piles of bodies and body parts.

After that, I believed the story that lead to his arrest.  His story was that he walked around his house and yard with a gun – because he feared he would be shot in his poor neighborhood where there were random gun shots ringing out at all hours.  Gunshots caused him to flash back to Vietnam.

During trial, the government pitted a young black prosecutor against Maurice J. and exclaimed he scarred people in the piano bar when he raised him arms in a Karaoke song crescendo, thereby exposing the loaded gun tucked into his waistband.  When the crowd gasped, Maurice J. exited the bar, and started his car to drive away.  The officer said he saw Maurice backing out of the parking space.

Having prepared, I knew I had to dispel the threatening image of a drunken black man with a gun in a crowded bar.  I had to humanize Maurice J., if not for the case, for sentencing after conviction.  This was a key issue in the case.  We were forced to trial by a stiff plea bargain offer by the prosecutor.

o, Maurice J. took the stand during trial and set the scene of his past Vietnam experiences, the photos, and his rough neighborhood.  Practicing this testimony was a second issue in humanizing Maurice.  Having practiced his Frank Sinatra- Karaoke song, - he said he was excited to sing in the bar and just forgot his gun.

His gun was a part of him.  Thus, he had no intention of carrying it into the bar, he just forgot.  Moreover, he went into his car – to escape the angry crowd – but he didn’t drive.

While testifying, Maurice J. actually sang his Sinatra song to demonstrate he had a clear memory and balance – which is inconsistent with being under the influence of alcohol.  Maurice sang in court like he did the night of his arrest.
The jury acquitted of DUI and convicted on the gun, but brought us cookies and flowers after their verdict.  They were not afraid of Maurice J.  Neither was the Judge, who gave him credit for time already served in jail. No more Jail.  Months later, the Judge commented to me, “What was that song Maurice sang?  I really liked it.”

PERSONAL INJURY:

1. James C.

While riding his bicycle one morning, James was hit by a car, driven by a motorist on heart medication – that had a seizure.

Luckily James C. was not severely hurt, but he did sustain sever bruising and soft tissue damage.  He could not service his electronics customers while on sales calls.  After being bedridden for several days, on pain and anti inflammatory medications for a few weeks, James C. slowly recovered.

During his recovery, he lost several thousands of dollars worth of sales in his electronics business – of which he was the sole owner and employee.

Of course, the insurance company aggressively set out to prove James was a malingerer, and a fraud – despite eye witness testimony, photos of his extensive body bruising, sales track history and medical evidence. James felt like the accused – instead of the innocent victim.  I had to address this issue as it affected James’ testimony and persona. 

Consequently, James had a hard time answering questions during his deposition.

Trial was quickly approaching.  I knew that unless James could answer the posed questions in a straight-forward manner, he’d suffer before a jury.

So, I hired Sylvia Israel (CP) and we did a focus group in my office.  During the warm-up phase, Sylvia discovered James had lingering childhood issues where he was accused of lying.  As an adult, James defensively over stated answers to simple questions out of fear he’d be labeled a liar.  He lacked the spontaneous confidence for trial testimony.  Now that the issue was spotted, we worked on how to remedy it. 

After Sylvia’s warm up, and James new insight, he was able to withstand a vigorous cross exam and speak extemporaneously – and credibly.  This lead to a favorable focus group evaluation.  James’s confidence swelled, and he even volunteered as a mock juror in two other cases, one criminal and another civil.

Interestingly, James’ conservative side was exposed when he sat as a juror on the criminal case.  As his trial attorney, I learned about another side of him that had little tolerance for perceived exaggeration.

I also learned I needed to visit his home office and garage where he stored boxes of electronics up to the rafters.  These were the boxes he could not carry and load as a salesman while injured.  This last issue helped tie the case together and explain why James lost money.  This issue came out more vividly once the focus of the case moved past James himself, to his evidence.

James’s case came alive while we waited confidently for the case to move to trial, where we were finally able to settle for a fair sum.  He and I developed the courage to try the case if we had to… sensing this, we held out for justice.

2. Dennis D.

Dennis D. was an aspiring triathlete.  He moved from Minnesota to San Diego in hopes of qualifying for the triathlon Olympic trials – then to start his own personal training business.

Though a focus group, I learned Dennis got teary eyed and choked up when he had to talk about his loss – after being hit by a car on a bicycle training ride.

Dennis’s trial was created when the insurance adjuster told Dennis, at a settlement conference, that he was not important until he hired a lawyer.  All Dennis D. wanted, was to be treated fairly by AllState.

The bigger problem was that AllState made an average settlement offer, and Dennis had healed bad knees from a pre existing Navy injury, and two other prior surgeries.  So, he appeared to have is an aggravation of a pre-existing knee injury.

We did a focus group with Dennis as protagonist.  He told his story and I learned of his dreams.  Dennis also told the mock jurors how he paced his recovery – so he could race in the Olympic trials – but couldn’t.  Then the light went on for me.  One big issue, was spotting his motivation for athletics.

During trial Dennis took the stand, after several of his coaches set the scene – as a strong, yet safe bicyclist and triathlete.  The second issue was convincing the jury during the scene setting that Dennis was passionate about triathlon.  Dennis then told the jury his story.  Dennis explained that he lost the chance to compete in the Olympic trials, but that his dream to be a personal trainer was alive. He also explained the he had to gain sports credibility with his race results.  He explained that his results were damaged because during the San Diego International race Dennis took the lead on the swim, bike and run, but halfway through the run (leading, an international field) – Dennis stopped.  Everyone was surprised.  The captivated jury gasped.  They felt his disappointment.
Dennis explained he didn’t want to press his comeback too hard.  He was following doctor’s orders.  He choked up and became teary eyed – then looked down at the witness stand to maintain his composure.

Due to re-enacting the race that lead to his real heroes’ journey – he involved the jury as spectators.  They were rooting for him.  This gave the jurors decision meaning.  They awarded him five times what AllState had originally offered.  This bought Dennis time to train – and to breathe life back into his dream.

How to finance the cost of a Criminal and Civil Trial Psychodramatist:

Because we are guaranteed the effective assistance of counsel under the 6th Amendment to the U.S. Constitution, we are entitled to reasonable ancillary fees in a criminal case to help the trial lawyer and client.  While I have yet to succeed in applying for and gaining funds – I believe certain cases warrant funding of a Psychodramatist and focus groups.  I would hope this area could be aggressively investigated and developed on a national level.

The process simply involves the trial attorney filing a motion (and a sealed declaration) explaining the benefits and good cause for funding.  Should it be denied, the government risks the reversal of a conviction – an even more costly consequence.  In that case, it’s hoped that a sliding scale payment program or services for free are offered the client.

If corporations, and the wealthy can afford focus groups and Psychodramatists, why should the indigent be denied equal protection and effective assistance of counsel?  Legally, the court can appoint an expert to investigate and testify, so long as the compensation is reasonably fixed.  California Evidence Code §730.
Also, legal assistance has been defined as support services including medical and psychiatric exams – California Penal Code §987.8(g)(1)(2)

Moreover, an indigent defendant represented by private counsel may not be required to accept the services of the public defender in order to obtain the above described expert services at public expense.  These fees and costs are proper items for compensation by public funds.  Taylor v. Superior Court (1984) 168 CA3d 1217.  Even if a clients fee was paid by family or friends, it was not a bar to an award of public funds.  Anderson v. Justice Court of San Benito County (1965) 99 CA 3d 398.

The complexity of the case is a factor in the courts ruling.  Keenan v. Superior Court (1982) 31 Cal 3d 424.

Recently, in Tran v. Superior Court (2001) 112 Cal Rptr. 506, the 4th district court of appeals in California decided the lower trial court abused it’s discretion in failing to provide ancillary funding for Leslie Abramson, Esq., defendant’s retained counsel, despite having paid an attorney fee of nearly $300,000.  (Ms. Abramson handled the Menendez brothers murder trial) Payments of an attorney retainer in a serious, does not trump the sixth amendment guarantee of the accused rights to ancillary services.

In a civil case, often psychodramatists are given a written lien signed by the client and lawyer – as a charge against the award.  Predicated on a successful recovery, this assures payment when the case closes.

Psychodrama and Focus Group Services in the United States:

My hope is that the use of Psychodramatic and Focus Group techniques are economically available in the legal community.  To that end, here are a few resources.

Psychotherapy and Psychodrama:
1.     American Society of Group Psychotherapy and Psychodrama.  www.ASGPP.org,  ASGPP@ASGPP.org   Contact ASGPP for a list and reference to a local certified Psychodramatist in your area.  They have a nationwide list of reasonably priced professionals.
2.      Richard L. Duquette, Esq. , (Trial Lawyer and Focus Groups) www.911law.com

Electronic Focus Groups:
As technology improves, I believe the cost of hiring a top notch Psychodramatist to assist in a focus group will become easier.  With the advent of video conferencing, it’s possible to do this.  From jail, a client might even consider calling into an existing focus group and interacting with your jury.  Of course this assumes proper legal counseling to protect against self incrimination.  It would seem only fair that persons incarcerated also have the same case preparation opportunities as those who are free on bail.  This area needs further exploration.  One thought would be to have an attorney/client meeting room with confidential video conference capacity. 

Consumer civil trial attorneys, civil and criminal justice organizations might consider making such a meeting room available for their membership.

Conclusion:

The use of Psychodramatic techniques in a focus group setting helps identify the trial issues so the focus group experience comes alive.  This increases the chances of a favorable jury verdict and justice, as biases are uncovered, explored, understood and faced with awareness. 

This article can be copied and distributed without violating the authors copyright protections, so long as it’s done with the intention of helping injury victims or the criminally accused.  This copyright protection extends to the following attachments:

1.     The criminal and civil case jury focus group questionnaires.
2.     The client and family member PTSD accident evaluation questionnaires.