Of all the props Mark Calzaretta has used to help juries understand environmental contamination, his favorite was Jell-O in a fish tank.

As founding partner and director of litigation consulting at Magna Legal Services, a Philadelphia-based company that provides legal support and jury consulting, Calzaretta works with attorneys to do jury research, develop case strategies, prepare witnesses, and create visual aids to help tell the stories behind a case in easy-to-understand terms.

“We create the visual strategy to go along with the story,” he said.

Calzaretta, who has a degree in psychology and anthropology, has worked in litigation consulting for more than 15 years. He wouldn’t discuss his clients, though his website says he’s worked on “numerous asbestos cases” and “numerous toxic tort cases.”

Complex environmental cases often need visuals to explain to juries how contaminants from one place move to another. Magna sometimes flies planes over a site and uses lasers to map out terrain, or drills into bedrock below contaminated sites to get samples of what lies underneath.

The Jell-O was used to help explain the term “DNAPL.” Short for “dense nonaqueous-phase liquids,” environmental engineers use the acronym to describe toxic contaminants that are both denser than water and don’t dissolve.

Chlorinated solvents such as tetrachloroethene and trichloroethene are examples of DNAPLs that linger in the soil and water around old manufacturing sites.

A company tried to convince the jury it was impossible that residual chemicals from its product could have fallen to the bottom of a pond and seeped into groundwater. Calzaretta’s team brought in a five-gallon fish tank into the court room, dumped a dessert cup of green Jell-O in the tank, and let the jury watch it sink to the rocks on the bottom.

If they waited long enough, the team explained, the Jell-O would ooze down into the rocks to layer underneath.

“That’s what happens when you put contaminants into the water system,” Calzaretta said. “And all the jurors were like, ‘That’s awesome. I totally get it! How could it not get in the groundwater?’”

This piece originally appeared in Bloomberg Environment on March 18, 2019.

A “nuclear verdict” is what jury consultant Rachel York Colangelo calls the recent $2 billion judgment against Bayer on claims its Monsanto Roundup weedkiller caused cancer.

It was by far the highest of three consecutive trial losses, all in California, for the German pharmaceutical and life sciences company, which bought St. Louis-based Monsanto Co. last year for $63 billion. The other two verdicts totaled $159 million. The next Roundup trial is scheduled for August in St. Louis.

Bayer said that it will appeal the verdicts and that Roundup is safe. A recent Environmental Protection Agency report reaffirmed its previous findings that glyphosate, the active ingredient in Roundup, is safe when properly used.

Colangelo, national managing director of jury consulting for Magna Legal Services in Washington, D.C., has more than 10 years of experience in jury consulting. She did not consult on the Bayer cases.

She spoke to the Business Journal about what she believes went wrong for Bayer and what it can do going forward.

What do you do as a jury consultant? I help attorneys, corporate clients and insurance carriers determine how triers of fact — juries, judges and arbiters — perceive their cases, what story or theme they can emphasize. We do that through pre-trial work, such as mock juries. We consult on opening statements, witness preparation and closing arguments. Few cases go to trial — most settle — and mock trials, for example, may encourage them to settle.

Were you surprised by the size of the $2 billion verdict? A lot of people were, but as a jury consultant, I wasn’t surprised at all. In mock trials, I see how a lot of juries react. I was not at the trial and did not consult on the trial, so I am on the outside looking in. In no way are any of my comments meant to be critical. The defendants have many more facts about their case than I do.

That said, what do you think went wrong for Bayer? The Roundup issues have been in the press long before these cases. People have heard friends and neighbors say, ‘Don’t use Roundup because it causes cancer.’ And Monsanto had a reputation, warranted or not, as a ‘big, bad corporation.’ People buy bags of potato chips that say ’No GMO,’ and many of Monsanto’s products are genetically modified. Plaintiffs lawyers are exploiting those predisposition in jurors. If a lawyer can make jurors feel scared or threatened, they begin thinking about themselves, their family, their neighbors.

What explains the size of the $2 billion verdict? When you instill anxiety and fear, jurors get angry — regardless of whether Monsanto did any of that. And there were internal Monsanto emails and memos that didn’t look good, looked like there could be a coverup. The plaintiffs pointed out internal memos that referred to Roundup as ‘that billion-dollar question.’ So jurors lashed out, and you get a $2 billion verdict, $1 billion for each of the two plaintiffs.

What are the risks for Monsanto in future trials? If people didn’t hear about the first two verdicts, they certainly heard about the third, the $2 billion. Juries may ask, ‘Do we want to be the first jury to find for Monsanto?’ They may think $2 billion is too high, but $100 million isn’t. Keep in mind, people across the country are very different. California juries tend to be more liberal and more health and environmentally conscious. They don’t use Roundup on their lawns. In St. Louis, where Monsanto is based, jurors may have a different view.

What can Bayer do differently in future trials? They need to ask: What is the story we can tell in the opening statement that will get the jury to really listen? If you are not able to grab them from the start, a lot of jurors will shut down. They hear primarily what supports the plaintiffs. Monsanto and Bayer relied heavily on the science that said there was no causal link between Roundup and cancer. In effect, they were saying, ‘Once you hear the science, you will know we are right.’ Juries really try to understand science, but a lot of it will go over their heads, as it would ours. And jurors have heard the anecdotal evidence and will see the memos and emails.

Bayer must put the elephant front and center in the courtroom. During jury selection, they have to get potential jurors to commit under oath to be willing to hear them out and make an effort to understand the context of those email and memos. Those who can’t commit, you kick off the jury.

What other risks does Bayer face? Plaintiff attorneys have gotten very aggressive. They advertise for clients who have used Roundup, regardless of whether they have cancer. Plaintiffs may demand pro-active damage awards: ‘Even though I don’t have cancer, I have used Roundup, and Bayer should pay for me to go to the doctor every two months for monitoring,’ plus monetary compensation for the pain and suffering of worrying about the possibility of getting cancer.

This piece originally appeared in the St. Louis Business Journal on May 24, 2019.

Putting a defendant on the stand to testify in their own defense is risky business.

Sometimes it works, and sometimes it doesn’t, legal experts told the Tribune-Review.

It’s anyone’s guess whether Michael Rosfeld will take the stand and describe under oath exactly what happened on June 19, 2018, the day the former East Pittsburgh police officer shot and killed 17-year-old Antwon Rose II as the teen ran from a felony traffic stop.

Rosfeld faces one count of homicide. His trial is scheduled to start Tuesday.

Whether Rosfeld testifies could depend on how he’ll perform in front of the jury, how the prosecution presents its case and how badly he wants to tell the jury his side of the story, experts told the Trib.

The risks are high. Rosfeld could crack under cross examination. He could turn the jury against him depending on his answers and actions on the stand.

“All in all, it’s a scary business,” Butler defense attorney Al Lindsay said.

Chicago attorney Daniel Q. Herbert, 50, is a former cop who has carved out a niche representing police officers in criminal cases. He recently defended Chicago Police officer Jason Van Dyke, who was convicted of second degree murder in 2018, four years after he shot and killed 17-year-old Laquan McDonald.

Van Dyke testified at his trial.

“That’s a decision that I always make the client decide. In this case, we felt very strongly from day one that we would need to put Jason on the witness stand. We needed to explain his version,” Herbert said.

Police can make excellent witnesses on their own behalf, Herbert said. They’re accustomed to being in court. They can be charming and thoughtful and can “win over” a jury, he said.

In cases where they’re facing criminal charges, they also are often adamant about testifying, he said.

“They’re fighting for their life,” Herbert said.

Whether a defendant testifies depends upon the case and the strength of the case against the accused, Lindsay said.

Lindsay represented former Mercer County District Attorney Miles Karson on charges of obstruction, official oppression and hindering prosecution. Karson was found guilty, but the jury spent a day listening to him explain his version of events.

“It depends on the defendant. Are they articulate? Are they believable? Do they have enough personal presence to be accepted by a jury?” Lindsay said. “There are certain cases that require the (accused) to give their explanation of a certain set of facts. You have to put them on or the charges would be unanswered.”

In a case like Rosfeld’s, putting him on the stand could provide the jury with Rosfeld’s perspective, said Mark Calzaretta, a Philadelphia-based civil and criminal jury consultant.

“His perspective would matter in this case. Here, I think the jury’s going to want to hear in his own words what’s going through his mind when this happened,” Calzaretta said. “It all comes down to him, what he was thinking.”

In this case, there isn’t a question about whether Rosfeld pulled the trigger.

The way the prosecution lays out its case will also impact whether or not Rosfeld will take the stand, said Bruce Antkowiak, chairman of the criminology department at Saint Vincent College in Latrobe. The defense presents its case after the prosecution, meaning Rosfeld and his attorney, Patrick Thomassey, can wait until after Chief Trial Deputy District Attorney Daniel Fitzsimmons makes his case.

Antkowiak said most defendants make bad witness because they’re not used to testifying or defending themselves.

“Even if the defendant is a police officer who has experience testifying,” Antkowiak said.

For the defense, the decision of whether or not for the accused to testify is “one of the most difficult tactical decisions a defense team has to make in any case,” he said.

The testimony can outweigh facts and evidence presented in the trial, he said. It could boil the trial down to whether the jury believes Rosfeld or not.

Antkowiak said it is “one of the most difficult tactical decisions a defense team has to make in any case.”

This piece originally appeared in Trib Total Media on March 18, 2019.

Prosecutors and defense attorneys in Michael Rosfeld’s homicide trial could seek out jurors each side would otherwise avoid, legal experts following the case told the Tribune-Review.

Defense attorneys, who typically look for jurors suspicious of police, might want to pack the jury with people sympathetic to law enforcement.

While prosecutors, who typically rely on officers as key witnesses during cases, could look for jurors wary of police. Continue reading →

Jury selection starts Tuesday in the homicide trial of Michael Rosfeld, the white police officer who fatally shot black unarmed teen Antwon Rose last summer in East Pittsburgh.

Jurors will be chosen in Dauphin County, where Harrisburg is located, before traveling to Allegheny County for the trial, which is set to begin Tuesday, March 19. Rosfeld requested the outside jury, arguing that local jurors could not be fair due to media coverage of the shooting and subsequent protests. Continue reading →

Tuesday’s jury selection will flip the script.

Typically, when prosecutors pick a jury, they look for people who are pro-police — who recognize the difficult job law enforcement officers have.

At the same time, defense attorneys often look for the opposite — they might want jurors who have had negative experiences with officers, people who are more apt to question authority.

Continue reading →