Persuasion Matters

Leave It All Behind still shot with two people

Truth or ‘Bull’: The Case of the Missing Author

Members of Dr. Bull's team in episode of CBS drama "Bull"Dear writers and producers of CBS’ “Bull”: your show might be a little more realistic if Dr. Jason Bull actually consulted on a trial that ended up with a loss every now and then. After watching yet another episode, I am exasperated (yet not altogether shocked) to see that, once again, the show ends with a victory dance for Bull and his trial team. They have yet to feel the agonizing sting of defeat. Lucky bastards.

In the latest episode, “Leave It All Behind,” soon-to-be-defendant Nathan Raynor enters his lake estate only to discover his wife, a world-renowned author, is missing. Three days later, he (finally) notifies the police, who immediately expect foul play. Raynor is ultimately arrested for murder, and in swoops Dr. Bull and his team of sleuths and snoops.

To dissect this episode, let’s play another round of Truth or Bull. (Here’s your mandatory SPOILER ALERT.)

Truth or Bull: It’s standard practice for an attorney and jury consultant to interview a criminal client while forensic investigators are within earshot.

During an early scene, we see Nathan Raynor, Benny — his attorney — and Bull sitting in an open-concept area of his home discussing what he knows and doesn’t know about his wife’s whereabouts. Normal enough. But in the immediate background, we observe a flurry of crime scene investigators doing their thing.

I’m calling major BULL on this one. Granted, Nathan has yet to be formally arrested but he’s certainly under serious scrutiny. I mean, come on: The forensics team is spraying Luminol around the place like it’s air freshener. To think that the criminal defense team would partake in any discussion about anything within ear shot of the police, investigators, or district attorney is ludicrous. If you’re ever in the unfortunate position of being a suspect in a crime and your trial team wants to pick your brain in front of the very folks who want to put you behind bars, you should strongly consider finding a new trial team. #duh

Truth or Bull: Jurors who are drawn to facts, science, precision and detail may be more receptive to a defense of reasonable doubt.

After spraying gallons of Luminol, the investigators discover a serious blood bath cover-up. Clearly, the killer was not as savvy as Dexter. To nobody’s surprise, Mr. Raynor is Prime Suspect No. 1 and arrested for murder. For reasons much too complicated to explain here, Nathan still holds firm that his missing wife is alive and well and this is all a big misunderstanding. Next thing we know, Bull and Benny are picking a jury for his murder trial.

Seating jurors in a gruesome murder case who are willing to acquit based on reasonable doubt is really difficult. [Note to self: fodder for a future blog post.] But, because Bull has a bit of science on his side, he’s hoping to sell a “no-body-no-death” narrative. Jurors who expect forensic perfection, scientific certainty and an actual body are generally more comfortable finding reasonable doubt.

I call TRUTH on this one. All other things being equal, if there were only one strike remaining and two scary jurors, use the strike on the drama teacher, not the fraud accountant.

Truth or Bull: Sequestered jurors are happy to have a break from real life.

Let’s cut to the chase on this one. This is a ginormous load of BULL.

Because this is Hollywood, after the jurors are selected the state requests that jurors be sequestered during the trial (in the real world, such motions occur before jury selection). Benny — like a reasonable lawyer — objects, and this time, he objects for all the right reasons. It’s an extraordinary measure and unwarranted. It’s rarely used. It’s a huge expense for the taxpayers. And the biggie: it’s a horrible burden on jurors.

In many ways, sequestration is not much different than being in jail because jurors lose many of their freedoms and most of their privacy. Jurors are taken away from their families. They are removed from work. They are cut off from television, newspapers and social media (oh the horrors). They eat together, they sit in the courtroom together, travel together and watch (pre-approved) movies together. Doors typically remain unlocked, and phone conversations are often monitored.

Talk about an intrusion.

Even if jurors were put up in the swankiest of hotels, sequestration still sucks. Trust me, jurors would much rather be sitting on their tattered recliners eating Beanie Weenies in front of the television.

Truth or Bull: Discussions with a jury consultant are privileged.

This one is TRUTH (usually). Dr. Jason Bull’s clients retain his company for legal services; they receive legal representation and strategic advice from various members of the team. This is typically considered privileged, but there are always exceptions [yet another blog post?].

In 2003, the U.S. Third Circuit Court of Appeals took issue with whether the work product of a non-testifying trial consultant is privileged. In an opinion stemming from Cendant Corporation Securities Litigation, the Third Circuit held that trial consultants fall within the scope of the work product doctrine and that “communications [with a trial consultant] merit work product protection.” While the issue of attorney-client privilege was not specifically addressed in this opinion, the concurring opinion held that the “attorney-client privilege was implicated.”

The Cendant opinion has become a critical ruling for trial consultants throughout the country but, like anything in the law, there are always exceptions. Generally speaking, unless your jury consultant rivals that of Gene Hackman in Runaway Jury, you should be just fine as far as protecting privilege. However, it’s always best to have a signed engagement agreement to define roles and responsibilities, and to lock that privilege down.

So, what actually happened to the wife? Sadly, her body was discovered mid-trial along with the murder weapon, but the culprit wasn’t the husband. Bull and his team of superheroes unravel the mystery mid-trial and receive an acquittal. Again.

Winning in the courtroom always more fun than losing, but it would sure be nice to know that Dr. Bull finds himself on the losing side of the facts every now and then.

This article was originally published by Texas Lawyer on February 14, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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