Some Forensic Marketing Information

Tony L. Crumbley, CCR
D. Larry Crumbley, Ph.D., CPA, CFF, Cr.FA, MFFA, FCPA

With our litigation services background, we will come to you and deliver a one-day seminar on Forensic Marketing Best Practices.

Contact Larry Crumbley (225.578.6231)

Forensic marketing services are the professional assistance marketers provide related to the litigation process at the federal and state court levels. These services may involve marketing, sales, advertising, quantitative analysis, investigative, and survey research skills coupled with an understanding of the legal process in order to provide assistance for actual, pending, or potential legal or regulatory proceedings before a trier of the facts (jurors or judge) in connection with the resolution of a dispute between parties.

It is most commonly associated with gathering evidence that will be presented in a civil or criminal court of law as part of a marketing dispute. He or she may need a working knowledge of the legal system and excellent communication skills to carry out expert testimony in the courtroom and to aid in other litigation support engagements. Marketers may be retained as a consultant, expert witness, or special master, to deal with such issues as lost sales, consumer behavior, anti-trust, consumer protection, branding, damages, and intellectual property issues.

A marketer may be hired by an attorney to gather and interpret facts, prepare analyses, help the attorney interpret evidence, advice about issues and strategies involved in a legal matter, locate other marketers to act as consultants or expert witnesses, and help expert witnesses form their opinions. Marketers acting only as consultants will not be asked to testify in a judicial or regulatory proceeding, and their work usually will be protected from disclosure by the attorney work product privilege.

A marketer may be retained by an attorney or court as an expert witness to testify in a judicial or administrative proceeding. Marketers retained as expert witnesses will be expected to give their opinion in a judicial or administrative proceeding and can expect their work for a lawyer or court to be available to others involved in the litigation.

Marketers sometimes are appointed by a court as a master to assist the court in some matter (e.g., to determine certain facts or compute damages). They also may be appointed to act as the court’s representative (referred to as a special master) in a particular transaction.

The powers and duties of masters and special masters depend on the terms of the order making their appointment and applicable court rules. The compensation paid to a master or special master is set by the court and paid by the parties or out of any fund or subject matter of litigation.

The five major phases of litigation are:

  • Pleadings
  • Discovery
  • Trial
  • Outcome
  • Possible appeal

    Much of the work for forensic marketers occurs in the discovery stage.

    The pleadings consist of:

  • Complaint – Plaintiff files.
  • Service of process – Served on defendant.
  • Answer – Defendant must admit or deny allegations.
  • Demurrer – No cause of action exists.
  • Possible cross - complaint – Defendant files.

    An attorney’s job is to ultimately avoid trial and the resulting lost time and expenses. Thus, the goal of a forensic marketer is to help the attorney to avoid the cost and uncertainty of a trial.

    There are many ways for an expert witness to be excluded from the courtroom. Both simple and complex Daubert and Frye challenges are becoming frequent as tort costs climb. Daubert on the Web indicates that marketing experts are rejected about 66% of the time. Marketers must take the qualification process seriously in order to avoid adversely affecting clients and their personal reputation. Lack of independence, conflicts of interest, side-taking, and result-oriented work are some of the situations to avoid.

    In federal courts and many state courts an expert witness must prepare a written report. Due to the practice of electronically-prepared draft reports, these drafts are often not recorded on paper. Not retaining draft copies is quite common among litigation experts and consultants. Often if a consultant’s report is provided to the expert, these reports are requested from opposing counsel.

    To learn more about this hot niche in a sports marketing context, see Dangerous Hoops: A Forensic Marketing Action Adventure, Baton Rouge: LSU Press, 2011.