The Legal Intelligencer Blog

Preventive Medicine: An Attorney’s Reimbursement Compliance Program

By Jason B. Martin
Special to the Legal

The Department of Health and Human Services’ Office of Inspector General has developed and published voluntary compliance program guidance focused on several areas and aspects of the health care industry. Over the years, the OIG has developed specific compliance program guidance related to claims submissions for hospitals, hospices, individual and small group physician practices, nursing facilities, ambulance suppliers, third-party medical billing companies, and the list goes on. The OIG believes that the development and issuance of voluntary compliance program guidance will serve as a positive step toward assisting health care providers and others in the health care industry in preventing the submission of erroneous claims or engaging in unlawful conduct involving the federal health care programs, and knowledgeable health care attorneys agree.

Health care providers and related entities are responsible for ensuring accurate claims submissions for payment under federal health care programs such as Medicare and private insurance. The Centers for Medicare and Medicaid Services, through many of its contractors, including recovery audit contractors (RACs) and private insurers, routinely audit claims after payment to determine whether the claims were correctly coded and supported by the documentation. If claims are deemed denied retroactively, then the health care provider may be responsible for paying back previously paid claims or, in really bad cases, face charges for fraud prosecution under federal or state statutes. In 2011, RACs alone collected $939.3 million in improper Medicare fee-for-service payments. Add to that amount recoveries from other CMS contractors as well as private payers and the numbers are staggering.

In order to avoid these audits and the consequences that often result, providers are proactively implementing compliance programs within their practice, often with the assistance of health care attorneys and other health care experts. A voluntary compliance program is a written set of guidelines, protocols and standards that should be drafted by an experienced health care attorney. The OIG suggests that a compliance program should require the health care provider or related entity to include the following seven basic components:

• Conduct internal monitoring and auditing through the performance of periodic audits.
• Implement compliance practice standards through the development of written standards and procedures.
• Designate a compliance officer or contact(s) to monitor compliance efforts and enforce practice standards.
• Conduct appropriate training and education on practice standards and procedures.
• Respond appropriately to detected violations through the investigation of allegations and the disclosure of incidents to appropriate government entities.
• Develop open lines of communication, such as discussions at staff meetings regarding how to avoid erroneous or fraudulent conduct and community bulletin boards, to keep practicing employees updated regarding compliance activities.
• Enforce disciplinary standards.

A voluntary compliance program should be specific, comprehensive and narrowly tailored for each type of health care provider. Identifying and implementing compliance practice standards is perhaps the most useful function of the compliance program for the provider. The provider must consider the types of fraud- and abuse-related topics that need to be addressed, including risk areas that relate to: (1) coding and billing; (2) reasonable and necessary services; (3) documentation; and (4) improper inducements, kickbacks and self-referrals. These risk areas can be further refined in a sub-level risk category that may include specific guidance for proper use of coding modifiers, documenting medically necessary care, documentation to support a specific level of service, using the correct level of codes, etc. For example, a voluntary compliance program for a chiropractic office should include guidance for coding and documenting specific services related to chiropractic, which often includes evaluation and management services, spinal manipulation services and therapies and modalities. A comprehensive compliance program should consider laws, regulations and guidelines that may include current procedural terminology medical code sets, CMS guidelines, local coverage determinations and individual private payer guidelines.

The health care provider or entity should develop procedures for internal monitoring and auditing with the assistance of a health care attorney. All providers that submit claims for reimbursement should perform self-audits of the documentation and coding to ensure accuracy and avoid the risk areas already identified. In addition to the useful guidance of an experienced health care attorney, there are experts who have certifications in coding and health care compliance who can perform a baseline audit by reviewing medical records and codes to determine whether the provider is complying with the laws, regulations and guidelines. If problems are identified, the provider or entity can take immediate corrective action so as to avoid a CMS or private payer audit in the future or mitigate the harm that may result if a post-payment audit is conducted. Providers should then routinely perform self-audits.

Generally, a voluntary compliance program assumes that a health care provider can use internal controls to more efficiently monitor adherence to applicable statutes, regulations and health care program requirements. This will, in turn, strengthen the efforts of health care providers to prevent and reduce improper conduct. Health care providers who implement a voluntary health care reimbursement compliance program can achieve a number of benefits that include preventing and reducing improper conduct, streamlining business operations, reducing the chances that an audit will be conducted by federal agencies or private payers, minimizing billing mistakes, ensuring accurate claims submissions, and avoiding conflicts with self-referral and anti-kickback laws. The OIG so aptly stated that physicians should view compliance programs as analogous to practicing preventive medicine.

Another important benefit arising from the incorporation of a voluntary compliance program is that a company convicted of a federal offense is eligible for a reduced sentence under the Federal Sentencing Guidelines if it has an effective compliance and ethics program and the offense occurred despite the program. Under the U.S. Sentencing Guidelines Manual, to have an effective compliance and ethics program, an organization shall exercise due diligence to prevent and detect criminal conduct and promote a culture that encourages ethical conduct and a commitment to compliance with the law. Such compliance and ethics programs shall be reasonably designed, implemented and enforced so that the program is generally effective in preventing and detecting criminal conduct.

Health care attorneys who represent providers or related entities should encourage their clients to develop and implement a voluntary compliance program for their practice.

Jason B. Martin is an experienced health care attorney and the founder of The Martin Law Firm, which represents health care providers for matters involving health care compliance, Medicare audits and appeals, insurance post-payment reviews, multidisciplinary practices, and general business matters. Visit www.jbmartinlaw.com to learn more about the firm’s health law practice.

 

I Now Pronounce You Never Married

By James W. Cushing
Special to the Legal

Over the last few months, Montgomery County’s register of wills, D. Bruce Hanes, has made quite a name for himself in the local and national media by issuing marriage licenses to same-sex couples because he personally believes that Pennsylvania’s definition of marriage as between one man and one woman, which is still the law in most of the United States, is “arbitrary and suspect.” Hanes’ actions do not take into account what these licenses will mean for any divorces that result from the same-sex marriage licenses he has issued.

Many will presume that these same-sex divorces will simply proceed like any other divorce would; however, there may be an alternate means to achieve the dissolution of these “marriages,” especially if you are, or represent, the person with the greatest amount of assets and/or income. First of all, as Pennsylvania law does not recognize same-sex marriage, courts have, thus far, been unwilling to grant same-sex divorces because to do so would be to tacitly recognize the underlying marriage. So, what does one do with this Montgomery County marriage license, especially if one, or both, of the parties in a same-sex marriage moves to a jurisdiction that does recognize their marriage?

No matter how one feels personally, emotionally, legally or any other way on the subject of same-sex marriage, the undeniable fact is that, as it stands now, Pennsylvania law defines marriage as “a civil contract by which one man and one woman take each other for husband and wife.” Therefore, by the clear operation of the plain and black-letter law, two people of the same sex may not enter a relationship defined as marriage under Pennsylvania law, regardless of what Hanes does or thinks. So, the obvious legal question is this: Can a court legally divorce what is not legally a marriage?

The matter of the same-sex marriages described above is not the first time the courts have had to entertain the basic question of whether a marriage was legal to start with, let alone subject to divorce. In 2007, the York County Court of Common Pleas heard the matter of Heyer v. Hollerbush, Pennsylvania No.: 2007-SU-2132-Y08 (September 7, 2007). In Heyer, the couple at issue (a man and a woman) was married with a Universal Life Church minister as the officiant. Under longstanding Pennsylvania law, only “the following are authorized to solemnize marriage between persons that produce a marriage license issued in this part: A minister, priest or rabbi of any regularly established church or congregation.” Armed with this statute, the plaintiff in Heyer, instead of filing for divorce, rather shrewdly and astutely, filed a motion for declaratory judgment instead, arguing that the couple had never actually been married because their Universal Life Church officiant had no authority to solemnize their marriage. The Heyer court agreed and ruled that since, in its estimation, a Universal Life Church minister does not fit the criterion laid out under 23 Pa.C.S.A. §1503(a)(6), the parties were never married. It is worth noting that in 2008, test cases with similar fact patterns as Heyer were filed in Philadelphia, Bucks and Montgomery counties and all resulted in rulings opposite to that of Heyer; however, as none of these matters reached the appellate level, there remains a split among the common pleas courts on this matter.

The impact of Heyer is enormous in the context of divorce, especially if one is, or represents, a defendant. The property held by one party, in the context of a divorce, is considered “marital” and therefore divisible if the parties were married. Furthermore, the dependent spouse may be entitled to spousal support, alimony pendente lite and/or alimony. If the parties were never married, property held in one name only is not divisible if the parties elect to dissolve their relationship and there is no right to any of the above-listed support. The “married” couple in Heyer turned out to be nothing more than a glorified dating, cohabitating or roommate relationship, with only basic contractual rights applying.

How is the Heyer case relevant to same-sex marriage and Hanes taking the law into his own hands? Similar to the parties in Heyer, the same-sex couples, despite the marriage licenses issued to them, are not actually married because of the basic application of Pennsylvania law. Therefore, if and when a party to a same-sex marriage wants to dissolve the relationship, one legal procedural route that is available is to file a motion for declaratory judgment instead of filing for divorce. As stated above, this avenue would be especially attractive to the party holding most of the assets and/or income. As there is already precedent for this tactic’s success, it would not be at all surprising to see it become more common as more same-sex couples are married contrary to the black letter of Pennsylvania law. Indeed, as Pennsylvania law does not recognize same-sex marriage, it does not, by definition, recognize same-sex divorce; therefore, a motion for declaratory judgment may be the only way to secure the striking and/or withdrawal of a same-sex marriage license.

In light of the above, there may be at least two ways to avoid a motion for declaratory judgment. First, if the Pennsylvania Legislature is able to change the historic definition of marriage, it could also, simultaneously, declare Montgomery County’s same-sex marriage licenses (and others like them) to be valid. Second, and more practically, same-sex couples who receive a marriage license such as those distributed by Hanes could simply enter into a nuptial agreement, laying out the terms and conditions of their relationship and their respective rights if their relationship dissolves; such an agreement is enforceable just as any other contract is enforceable. In the meantime, any same-sex couple that gets married using one of Hanes’ marriage licenses should do so with trepidation and with their eyes wide open to acknowledge that their marriage may be anything but a marriage if it does not work out in the future.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia. 

The Backsolve Method to Value Common and Preferred Stock

By Craig Jacobson and David Kaye
Special to the Legal

The valuation of early-stage companies can pose unique challenges because of a lack of historic earnings or operating cash flow. However, when there has been a contemporaneous arm’s-length transaction such as a recent financing round, one can estimate the value of the company using a valuation method known as the backsolve method. This market-based valuation method has gained prominence in the valuation community. This is evident with the release of the American Institute of Certified Public Accountants’ 2013 guide, Valuation of Privately-Held Company Equity Securities Issued as Compensation, in which this method is discussed extensively.

The backsolve method considers the capital structure and the liquidation claims of the various securities issued by the subject company. The valuation analyst will often work closely with legal counsel to accurately interpret the rights of the various securities. Usually, with early-stage companies, the securities being valued (e.g., common stock) have junior rights compared to the securities sold in the most recent financing round (such as a senior series of preferred stock).

The senior claim of the preferred stock creates an “option-like” payoff structure for the common stock (i.e., the future enterprise value needs to exceed the preferred claim in order for the common to realize any value at all). As such, the backsolve method utilizes option pricing models such as the Black-Scholes model.

The backsolve method first estimates the enterprise value of the subject company based on the price of a recent arm’s-length transaction. The enterprise value is then allocated among the different ownership classes. In performing the backsolve method, the valuation analyst will apply a series of concurrent option pricing models to consider several “break points.” For example, initially, only the most senior securities will participate. The first break point is at the future liquidation value where the preference of the most senior securities is satisfied and the incremental value determined applying option pricing models is attributed solely to the holders of these securities. This “waterfall” procedure is repeated until the incremental value attributable to the securities sold in the most recent round equals the price paid by the investor.

The model considers the probability of a range of future values that may be realized at a liquidity event, and therefore reflects the possibility that a security class that might not have value upon an immediate liquidity event still might have value based on the possibility of an increase in value.

As with any valuation method, the backsolve method requires the use of several assumptions, the most subjective of which are (1) the term to an expected liquidity event and (2) assumed volatility. The expected time to a liquidity event should reflect the expectations as of the valuation date of investors in the company.

The backsolve method can be very helpful in estimating value in the presence of an arm’s-length transaction in company ownership. Sometimes the hardest question is: How does one determine whether a transaction is truly arm’s-length?

Craig A. Jacobson is a principal in Citrin Cooperman’s valuation and forensic services group. He helps clients resolve issues regarding the buying or selling of a company, intellectual property valuations and damages/lost profits analysis, among other issues. He can be reached at 212-697-1000 or [email protected].

 

David M. Kaye works in Citrin Cooperman’s valuation and forensic services group. He provides specialist valuation and consulting services for transaction, litigation support, financial reporting and tax compliance purposes. He can be reached at 212-697-1000 or [email protected].

Ballard Spahr Adds Environmental Attorney in Atlanta

By Ben Seal
Of the Legal Staff

Ballard Spahr has added environmental attorney Leah J. Knowlton as a partner in its Atlanta office, according to a press release.

Knowlton has more than 20 years of experience advising clients in environmental regulatory matters and litigation and joins the firm from the Atlanta office of Miller & Martin, where she led the environmental practice.

“We’re excited to have an attorney of Leah’s caliber in the firm to help the group take advantage of the opportunities presented by such a fertile business climate in the Southeastern United States,” Glenn L. Unterberger, leader of the firm’s environment and natural resources group, said in a statement. “Environmental reinforcement is a particularly promising area for us in this region, and we believe her regulatory and litigation experience is an excellent fit.”

Knowlton represents manufacturing clients in litigation and enforcement actions related to Superfund and the Clean Water Act. She also defends clients in criminal and civil litigation tied to chemical contamination and other environmental regulations.

Enforcing Trademark Rights in the New Internet Age

By Dina Leytes
Special to the Legal

From the earliest days of the Internet, trademark owners have taken steps to enforce their trademark rights and prevent bad-faith actors from registering domain names that are confusingly similar to their legitimate trademarks. An upcoming change to the domain name landscape will require trademark owners to revisit their online enforcement strategies.

Until now, the most popular generic top level domains (gTLDs) have included .com, .org and .edu. However, the organization that oversees the world’s global Internet, the Internet Corporation for Assigned Names and Numbers (ICANN), has approved an unprecedented expansion of available domain names by creating a process for private entities to buy their own “.anything” online space. Over 1,900 new gTLD applications were received by ICANN in the first application round, including brands — .google, .nike, .bmw – and common words — .app, .home, .book. The first of these new gTLDs will start going live later this year.

As a result of this watershed domain name expansion, a third party may seek to register a trademark owner’s mark — or confusingly similar variants — to the left of the “dot” for hundreds of new gTLDs. In a difficult economic climate, trademark owners will need to prioritize the most serious cases in order to efficiently manage risk.

The gTLD process envisions several newly created rights-protection mechanisms for trademark owners that are meant to complement the existing Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP was adopted by ICANN following an initiative by the World Intellectual Property Organization (WIPO) and provides an inexpensive, straightforward alternative to litigation for clear cases of cybersquatting. All new gTLDs are required to offer the UDRP. In addition, ICANN has created two new rights-protection mechanisms, the Trademark Clearinghouse (TMCH) and Uniform Rapid Suspension System (URS), which are important for trademark owners to understand from the outset.

The TMCH is a central repository of authenticated trademark information. For a fee, trademark owners may now record with the TMCH (1) nationally or regionally registered marks, (2) court-validated marks or (3) marks protected by statute or treaty. When a new gTLD launches, trademark owners that recorded their marks with the TMCH will have the opportunity to register domain names corresponding to those marks before the general public may do so during a sunrise period. Additionally, if a third party attempts to register a domain name that is identical to a mark that a trademark owner recorded with the TMCH, that applicant will receive notice providing information about the mark recorded and warning the applicant about the possibility of infringement. While the notice will not stop the domain name from being registered, if the third party ultimately registers the domain name, the trademark owner will be alerted to the registration.

As an alternative to the UDRP, trademark owners can utilize the URS, a system that parallels the UDRP but is distinct in a few key ways. Perhaps the most critical difference is that while a URS filing is less expensive than a UDRP filing, a party prevailing under the URS does not acquire the infringing domain name and may be forced to assert its rights on a repeating basis, potentially making the URS process time-consuming and burdensome.

Griesing Law advises businesses and nonprofit organizations on cost-effective strategies for navigating the new gTLDs. Contact a member of Griesing Law’s intellectual property and new media team, Dina Leytes ([email protected] or 215-732-3924), Kate Legge ([email protected] or 215-618-3722) or Ashley Kenney ([email protected] or 215-501-7843).

 

Buchanan Ingersoll Adds Blank Rome Labor Lawyer

By Zack Needles
Of the Legal Staff

Pittsburgh-based Buchanan Ingersoll & Rooney has hired former Blank Rome partner Michael J. Hanlon as a shareholder in its labor and employment practice.

Hanlon, who focuses his practice on advising large corporations and government entities in labor and employment matters, will be based in the firm’s Philadelphia office.

Alfred J. D’Angelo Jr., a shareholder at Buchanan Ingersoll and a member of the executive committee of its labor and employment section, said in a statement that Hanlon “expertly handled a number of high-profile cases and his excellent reputation precedes him as he joins our firm.”

“With this addition to our labor and employment section, we are firmly established as one of the most experienced labor groups in all of Philadelphia,” D’Angelo said.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

Superior Court Elects Bender Acting President Judge

By Zack Needles
Of the Legal Staff

The Pennsylvania Superior Court has elected Judge John T. Bender as its acting president judge, taking over for former President Judge Correale F. Stevens, who joined the state Supreme Court on July 30.

Bender was elected to the Superior Court in 2001 and won retention in 2011.

According to a press release sent out by the Administrative Office of Pennsylvania Courts today, Bender will serve as acting president judge until January 6 of next year, at which point the Superior Court will elect a president judge for a five-year term.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

State Petitions Supreme Court for Reargument in Act 13 Case

By Zack Needles
Of the Legal Staff

With the state Supreme Court back up to full complement, the Pennsylvania Public Utility Commission and Department of Environmental Protection have petitioned for reargument in the case over the zoning provisions of the Act 13 amendments to the Oil and Gas Act.

The PUC and DEP filed their petition in Robinson Township v. Commonwealth on August 6, eight days after former state Superior Court President Judge Correale F. Stevens was sworn in as the new justice, replacing former Justice Joan Orie Melvin, who resigned in May following her conviction on political corruption charges.

Last July, a deeply split en banc Commonwealth Court invalidated as unconstitutional amendments to the state's Oil and Gas Act requiring municipalities to adopt uniform zoning ordinances that would allow drilling in all zoning districts.

The court ruled 4-3 in Robinson Township to overturn Section 3304 of 58 Pa.C.S., known as Act 13 of 2012, reasoning that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

The Supreme Court heard oral arguments in the case in October and a ruling is pending.

The PUC and DEP argued in their petition that, because the Commonwealth Court was so deeply split, the case should not be decided by a six-justice court.

The PUC and DEP said the ruling “will impact not only core inter-government relationships, but will also affect communities across the commonwealth in various economic, social and environmental ways.”

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

2013 Lawyers on the Fast Track

Earlier this summer, The Legal asked the Pennsylvania legal community to submit nominations for our annual Lawyers on the Fast Track. The nominations came pouring in, dozens and dozens of them, all demonstrating the impressive work being done by young lawyers across the state.

The nomination forms and any letters of recommendation accompanying them were sent to an eight-member judging panel composed of evaluators from all corners of the legal profession and the state. After reviewing their results, the following 38 attorneys have been selected as the 2013 Lawyers on the Fast Track:

• Rahat N. Babar, Bayne Law Group.

• Elizabeth K. Babson, Drinker Biddle & Reath.

• Jennifer L. Beidel, Saul Ewing.

• Maria E. Bermudez-Harris, Martin LLC.

• Jeannine T. Bishop, Morgan, Lewis & Bockius.

• Melissa S. Blanton, Schnader Harrison Segal & Lewis.

• Andrew T. Bockis, Saul Ewing.

• Justin H. Brown, Flaster Greenberg.

• Peter C. Buckley, Fox Rothschild.

• Mark K. Dausch, Babst Calland.

• Joshua B. Deringer, Drinker Biddle & Reath.

• Patrick T. Duffy, Stewart Bernstiel Rebar Smith.

• Heather C. Giordanella, Drinker Biddle & Reath.

• Marc A. Goldich, Reed Smith.

• Erin Lucas Hamilton, Buchanan Ingersoll & Rooney.

• Jonathan T. Hoffman, Klehr Harrison Harvey Branzburg.

• John D. Huh, DLA Piper.

• Earthen E. Johnson, Drinker Biddle & Reath.

• Odia Kagan, Pepper Hamilton.

• Sarah Katz, Temple University’s Beasley School of Law.

• Matthew G. Laver, Weber Gallagher Simpson Stapleton Fires & Newby.

• Kristin M. McKenna, Stradley Ronon Stevens & Young.

• Justin McShane, The McShane Firm.

• Kevin V. Mincey, Mincey & Fitzpatrick.

• Ria C. Momblanco, Fine, Kaplan and Black.

• Michael J. Puma, Morgan, Lewis & Bockius.

• Teresa M. Rodriguez, Haggerty Goldberg Schleifer & Kupersmith.

• Karen M. Sanchez, Obermayer Rebmann Maxwell & Hippel.

• Jarrod D. Shaw, Reed Smith.

• Nevena Simidjiyska, Fox Rothschild.

• Dee Spagnuolo, Ballard Spahr.

• David F. Stern, Pond Lehocky.

• Kari Knight Stevens, Cigna.

• Thomas A. Warnock, DuPont Co.

• Adrianne Walvoord Webb, Anapol Schwartz.

• Joseph R. Williams, Pollock Begg Komar Glasser & Vertz.

• Jason M. Yarbrough, Meyer, Unkovic & Scott.

• Michael S. Zullo, Duane Morris.

Full profiles of this year's honorees and the judging panel will be included in a supplement set to be published in The Legal on September 24. The winners will also be honored at a celebratory dinner in November in Philadelphia. For more information on the event, contact Diane McCollum at 215-557-2335.

Thank you to all those who took the time to submit nominations and letters of recommendation, and congratulations to all of this year's honorees!

Working with Prospective Jurors to Support Your Case

By Jocelyn Cinquino
Special to the Legal

Your options and opportunities for learning about prospective jurors in jury selection may seem limited—you only get so much information on jurors from the court, you don’t get to ask every question you would like and people may be reluctant to speak up in open court. Those reasons make it even more important to take advantage of chances to use the information you do have to start laying the groundwork on your case. You can do this by asking certain questions of jurors who on the surface seem destined to be sent right back to the jury room to serve in someone else’s trial rather than be a potential juror for yours.

Sometimes you just know certain people will get kicked off for cause or they will be the number one target of someone’s strike list—they are the doctors in a medical malpractice venire or the business attorney sitting in the pool on a contract case. But you can try to use their responses to your advantage anyway with the kinds of questions you ask them in court.

Most cases have some element of information that needs to be taught to and learned by the jurors who will serve and there’s no better time to start doing that than in voir dire. This is where you can spend a few minutes talking with that doctor about the basic medical issue in the case through your perspective and getting other jurors to listen. Saying, for example, “Based on your background you would agree, or you understand, that this particular condition/situation can be caused by a number of different things…” or, “From your practice, you understand that parties in a contract…”gets everyone else to hear that well before your openings and witnesses take the stand.

To do this well, you need to keep a couple of factors in mind. First, keep it basic—now is not the time to try out a theory that has varied levels of expert support or is going to take a week’s worth of testimony to properly explain (which in itself can be a problem anyway). The more you can keep the takeaway jurors get to a bullet-point, widely accepted concept, the better. Second, evaluate the kind of juror this is likely to be before you ask them the questions. If they seem difficult, disinterested or combative for some reason, they won’t make a good enough impression on others to make them and their understandings seem credible in the first place. And, lastly, know where to set the limit. One carefully crafted question is often enough. You are not putting your case on through this prospective juror, so you need to know when to pull back and how to avoid overstepping the boundaries that can lead your adversary to start challenging your questions and jurors to start tuning out.

Recognizing voir dire is as valuable a part of trial for advocacy as any other can help make the ways you use that opportunity to your advantage more apparent. Every juror has something to offer to the litigation process. Taking this viewpoint, that can be whether they end up serving or not.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at [email protected] or call 917-733-0770.