Litigation Tips Archive

The Changing Practice of Law

The practice of law is constantly changing and growing. Litigators must keep up with changes in the law, changes in their clients’ needs, and changes in fact finder (jury) impressions. The amount of information an attorney must process in handling a case is enormous. Ironically, while the litigator ultimately must be prepared to “do battle” in the courtroom, opportunities to hone trial skills are reduced by the often compulsory utilization of alternative dispute resolution procedures. Thus, many attorneys are becoming more experienced at influencing mediators and arbitrators than they are at persuading jurors. How can the trial attorney get the edge with jurors?

One way to keep trial skills sharp and to ensure everything possible is being done for the client, even under changing conditions, is to conduct jury research. Knowing what the jury wants to know helps you streamline the case and allows you to work “smarter”. Jury research helps the litigator integrate all case information available, perform effectively and efficiently, and lets the client know that the best possible result was achieved.

Call the experts at Magnus for information on maximizing results.

Convincing Your Client of Jury Research Benefits

During the decades Magnus’ Director of Research has been working as a litigation/jury consultant, a common lament among attorneys is that, although they are convinced of the benefits of conducting pre mediation, pre arbitration, or pre trial jury research, their clients are not as enlightened as to be similarly convinced. Magnus regularly works on cases with adjusters who, despite considerable experience in handling large scale litigation, have never worked with a litigation consultant. In addition, we often work with numerous corporate representatives who, until working with Magnus, have never understood the behind the scenes details that emerge as a result of our work. Sometimes, the attorney handling the case is unprepared to answer all of his/her clients’ questions about the benefits of working with a jury, trial, or litigation research consultant. Other times, even when the attorney has considerable experience working with firms that conduct attitude surveys, mock trials, and focus groups, the end client is unable to understand why the expenses incurred are well worth the time and effort of the corporation or insurance company. Without a doubt, litigation is expensive. Attorneys are being asked to be accountable for each expenditure related to arbitration, mediation, and trial, such that, on the surface, social science research can appear as more of a luxury than a necessity. However, effective fact finder research is often one of the best investments that can be made in a case because the information gained from the research creates efficiencies of both time and effort on the part of the attorneys who are litigating the case. In addition, the enhancement of the attorney’s decisions, due to the knowledge derived from the research findings, is unsurpassed and cannot be achieved through any other means. Magnus has considerable experience providing attorneys and their clients with a cost/benefit analysis of our work within the overall context of the lawsuit. We are always willing to confer with the attorney’s clients to explain our integral role in the litigation process. Information derived from pre mediation, pre arbitration, and pre trial fact finder research, of the kind provided by Magnus, cannot be obtained via any other means; attempts to short circuit this process will have a direct, negative impact on the litigation process and its outcome.

Call Magnus for information on pre-arbitration, pre-mediation and pre-trial research.

Using Jury Research as a Reality Check

On numerous occasions, Magnus Research Consultants has been asked by attorneys to conduct mock jury research as a “reality check” for their clients. In these instances, plaintiffs’ attorneys have indicated that their clients have unrealistic expectations about receiving a multimillion dollar verdict when the attorneys believe a substantially lower verdict is a more likely result. In a similar vein, defense attorneys often indicate that the corporations and insurance companies they represent undervalue cases that the attorneys believe have the potential for a runaway verdict. When we have conducted jury research on cases in which attorneys and their clients have disparate views, the mock jury verdicts provide convincing proof in support of one point of view. Consider conducting jury research to obtain a realistic picture of the value of the case, so that both you and your client can make an informed decision as to its overall value.

Contact the experts at Magnus regarding the reality check nature of jury research.

What do Your Clients Think about YOU?

Many of Magnus Research Consultants’ clients are surprised by the ratings they receive from our research participants and mock jurors. Some of the feedback we obtain is highly critical of the attorney’s presentation style, communications ability, appearance, and overall demeanor. On several occasions, in fact, Magnus has been retained by insurance companies and other clients’ organizations to evaluate the impressions their trial counsel make on the people who are being asked to decide the case. We have learned that often, the jurors are less interested in the legal aspects of the case than extralegal factors, including whether they like or dislike the attorneys on either side.

It is a common practice in many organizations (including Magnus) to survey clients about their impressions of the service they received, as well as to obtain feedback about how improvements can be made in the products and services offered to future clients/customers. This practice, although widely used in a variety of industries, is not as common among attorneys and their law firms. For this reason, many attorneys are surprised to find out their self assessments are often incorrect. We sometimes find out that our attorney clients would rather not know how they are perceived than obtain negative feedback that is counter to their personal beliefs. This, of course, is a dangerous practice, for many reasons. One of the most extreme examples of some attorneys’ desire to remain in the dark about jury eligible citizens’ impressions of them is evident during voir dire, in which venire members express a wide range of negative opinions about a law firm that is representing one of the parties in the case. We believe it is far better to know these opinions, and attempt to rectify negative impressions before trial than remain unenlightened until prospective jurors blurt out hurtful comments in open court.

Magnus has a variety of research techniques designed to assess both prior clients’ and the general public’s impressions of attorneys and their law firms. These research methodologies include interviewing past clients to determine their level of satisfaction with the service they received, evaluations of advertising effectiveness, and assistance with marketing to desired target populations. When we have conducted research for attorneys to evaluate their overall image in the community, we have always learned valuable information that could not have been found out via other means. Some of Magnus’ clients tell us they conduct post verdict and post settlement interviews with their clients, and while this is certainly preferable to doing nothing, it is unlikely that clients will reveal information to their attorney that they will reveal to a “disinterested” professional interviewer. Magnus has considerable expertise in interviewing, such that we often obtain information that cannot be gathered by the attorney on his/her behalf.

Contact Magnus to find out more information about what your clients REALLY think about you and your law firm.

Using Jury Research to Test Demonstrative Exhibits

An under utilized benefit of conducting mock jury research is in testing the impact and effectiveness of demonstrative exhibits. All too often, we have observed attorneys spending valuable resources on demonstrative exhibits that are perceived by the jurors as having little, or even a negative, impact on the case. Evaluating trial exhibits in the context of mock jury research provides valuable insight that cannot be obtained through other means. In addition, when the attorney retains a full service jury services company, that is, a company that provides both jury research services and demonstrative exhibits (as does Magnus Research/Magnus Graphics), the attorney gains the added advantage of working with someone to develop trial exhibits that have emerged from jury research results.

Contact the jury research and demonstrative exhibits professionals at Magnus for more information on developing exhibits with maximum impact.

What is “Successful Litigation”?

Success has many definitions. While it is obvious that an outright verdict for the plaintiff or for the defendant is a success for the side obtaining the verdict, there are other definitions of success in litigation. For a plaintiff, obtaining the desired damages while limiting comparative or contributory liability is true success. For a defendant, a verdict “lower than it might have been” may be success. Magnus has worked with defense clients who believed a $5 million verdict against them was success because the demand was many times that amount. Magnus develops strategy and graphic recommendations, themes, and voir dire questions to improve the likelihood of success. Our clients have repeatedly told us that Magnus’ involvement in their cases has facilitated a better understanding of what success means. Better decisions are made and better outcomes are achieved than is ever possible without the information provided by jury research. A final note regarding successful litigation is the client’s perception of success: absent jury research, it will never be possible for an attorney to assure his or her client that everything possible was done to achieve a successful outcome.

Magnus provides Insights for SuccessTM.

Using Jury Research to Test Jury Instructions and Verdict Form

The benefits of conducting pretrial or premeditation jury research are numerous. One under appreciated benefit of jury research is in testing the jury instructions and verdict form that will be used at trial. On countless occasions, the results of Magnus’ jury research have revealed serious problems with jurors’ understanding of the proposed questions on the verdict form. In that attorneys usually have the ability to craft the wording of verdict form questions, testing alternate versions with mock jurors is a useful tool to ensure jurors’ comprehension of the questions. The order of the questions, although not as subject to modification as the wording, is also something that can be tested for maximum impact with jury research. Similarly, special jury instructions, particularly those which must be customized for a particular case, can also be drafted in a way to maximize jurors’ comprehension.

Contact Magnus to test jurors’ comprehension of jury instructions and verdict forms for your upcoming cases.

Using Jury Research to Test Graphics

Many attorneys routinely use jury research to test mediation, arbitration, and trial strategies; it is less common to conduct jury research for the purpose of evaluating demonstrative evidence. Contrary to what some attorneys believe, today’s jurors have high expectations about animations, electronic presentations, and static exhibits, including document enlargements, diagrams, etc. Most jurors critique what they see in the courtroom based on expectations they have derived from law related television programs. As such, they believe attorneys should be facile in utilizing all varieties of sophisticated graphic evidence. Magnus Research Consultants and Magnus Graphics work together in assisting attorneys prepare graphics that will have the most jury appeal.

Contact Magnus to schedule an evaluation of your graphics.

The Mitigation of Surprise

The services provided by Magnus Research Consultants have sometimes been categorized as “surprise mitigation.” Magnus’ case specific jury or fact finder research mitigates courtroom surprises by allowing attorneys to pre-test their case, thereby ascertaining its weaknesses, prior to taking the case to trial (or mediation or arbitration). Magnus utilizes jury eligible citizens, arbitrators, mediators, or former judges, depending on the attorneys’ needs, to dissect the case and provide insight into their decision making process. Our clients always remark that they were surprised by some, if not many, things they heard during the mock trial, mock mediation, or mock arbitration. It is far better for the attorney, and his or her client, to be surprised by mock jury (or other mock fact finder) research results than by a trial outcome. It is largely because that the mock trial process allows surprises to be identified, thereby giving the trial team that opportunity to take steps to minimize the case weaknesses and capitalize on its strengths, that the process is such an invaluable tool for the trial attorney. When mock jury/fact finder research is used for the mitigation of surprise, risks are reduced and better outcomes are achieved.

Penny Wise and Pound Foolish

There is no denying that our nation’s current economic crisis has everyone, including the attorneys who are Magnus’ clients, reexamining their spending habits. As we all know, litigation is expensive. All lawsuits include costs such as court reporters and experts. In these tough times, lawyers who are trying to cut costs may believe using a jury or graphics consultant is a luxury they can do without. This is a mistake! Using the services of a jury consultant, especially early in a case, allows attorneys to understand how their case issues will be judged by the eventual decision makers. Armed with this knowledge, parties to the litigation can make informed decisions about the best resolution for the case. And, the litigation process can be focused and streamlined, resulting in considerable savings of time, effort, and money – thus, optimizing litigation outcomes.