Stung by defeat: SEC hires trial consultants

EXCLUSIVE:

Facing a string of recent high-profile courtroom defeats, the Securities and Exchange Commission wants to a hire a mock trial firm to help agency lawyers get ready for big cases.

A jury consulting firm would assist the SEC on “high profile and/or complex” cases by hiring dozens of mock jurors and videotaping arguments from trial lawyers to help them fine tune their closing arguments.

SEC officials declined to say whether the move comes as the result of any concerns about the agency’s trial track record. While they say they’ve used jury consultants before, the agency has suffered some big recent setbacks.

Last week, for instance, a legal trade news website — law360.com — noted the SEC trial loss against a former executive of government contractor NIC Inc. in a story headlined, “SEC’s Courtroom Cred Slips as Trial Losses Mount.” A jury had ruled against the agency when it found NIC’s former chief financial officer not guilty of a dozen federal charges brought by the SEC.

Two months earlier, the SEC was defeated at trial after accusing Dallas Mavericks owner Mark Cuban of insider trading. And in another closely watched case, the SEC lost last year after a jury cleared former Citigroup employee Brian Stoker, whom regulators accused of negligence in a mortgage securities case.

While some other recent big cases have gone the SEC’s way, the recent losses have received considerable notice — with Mr. Cuban among the most outspoken critics.

“I think it will benefit the SEC in their efforts,” Mr. Cuban said in an email to The Washington Times, referring to the SEC’s move to hire a mock trial consultant.

Mr. Cuban had sharp words for SEC lawyers working on his case, saying one had “no problem actively misleading and lying to the jury” while another “seemed like he was doing it for the first time.”

“If my case is any indication, the SEC has no concept of reality when it comes to dealing with juries,” he said.

“Getting feedback will create self-awareness for their attorneys,” Mr. Cuban said. “The big question will be what happens when a mock jury tells them they have no case.”

Hiring a consultant hardly guarantees trial success, though. In Mr. Cuban’s case, the SEC spent at least $24,000 for jury consulting services, federal procurement records show.

SEC officials declined to say whether the move to bring a contractor aboard comes because of any specific trial outcomes, but they note the agency has hired jury consultants before.

“Like many litigants, we use jury consultants when it’s appropriate. We solicit for these services under government procurement rules so they are available if needed,” SEC spokesman Jon Nester said.

Marshall Hennington, a jury consultant, said defendants will spend whatever they need to for any trial edge they can get when careers and reputations are at stake.

“People are very resourceful and they’ll find the means to get the best people they can,” he said.

Mr. Hennington said his firm, Hennington & Associates, has worked for government clients as well, though that work is not as well publicized.

The SEC disclosed plans to hire a contractor in a notice posted recently on a federal contracting website. The notice requires that the contractor provide more than two dozen mock jurors from the location where a trial is being held.

Under SEC Chairman Mary Jo White, the SEC is pushing for tougher settlements and more admissions of wrongdoing from defendants, all of which could lead to more trials.

“Following a change I made in June to the SEC’s no admit/no deny settlement protocol to require admissions in certain cases, some have predicted that more of our cases will go to trial,” Ms. White said.

“And some have asked whether the agency’s trial lawyers are ready to go up against the best of the white collar defense bar. It will probably come as no surprise to you, but my answer is a resounding yes.”

A former U.S. attorney for the Southern District of New York, Ms. White had a reputation as a tough prosecutor and is the first former prosecutor to head the SEC.

Despite the loss against Mr. Cuban, she’s defended the SEC’s trial unit.

“Over the past three years, our team has achieved an 80 percent success rate — a rate that may explain why most lawyers counsel their clients against going to trial against the SEC and why we achieve strong settlements in most of our cases,” she said in a November speech.