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.

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.

What’s the difference in Court ordered Summary Jury Trials and a Mock Trial? Isn’t a Summary Jury Trial enough?

Courts in many jurisdictions have been ordering Summary Jury Trials as a way to “encourage” attorneys to settle their cases. A number of Magnus’ clients have been through this process and have reported their experiences to us. In the Summary Jury Trial process, the Court assigns a “trial” date to the parties and sets up a one or two day trial using jurors who were not selected for other trials. The parties present an abbreviated version of their case and then one or more juries deliberate and reach a verdict which is then reported to the parties.

Based on the feedback we have received from clients, there are a number of issues that hinder the usefulness of this process. These include:

1) Voir dire is limited or non existent. Keeping in mind the jurors used for this process are often those who have been de-selected in other cases, the potential biases of the jurors are not controlled in any way.

2) The presentation is abbreviated and witness testimony is limited or nonexistent.

3) The results of this process are non binding, but the feedback is shared by both sides. This is the biggest concern pertaining to Summary Jury Trials.

The accuracy of the “verdict” is highly suspect. Because of the combined effect of a non binding process AND that both sides will hear what the jurors will have to say, many attorneys have expressed their reluctance to “show all their cards” in a court mandated Summary Jury Trial. As a result, we have been told of experienced trial lawyers making a weak presentation, intentionally, because of a lack of preparation, or due to a lack of interest in the outcome. In some cases, associates were allowed to present at the Summary Jury Trial as a way to get some “trial” experience.

The questionable usefulness and accuracy of the procedure is demonstrated by an example wherein one of Magnus’ defense clients went through the court ordered summary jury trial, with his adjuster present, and it resulted in two defense verdicts. Magnus’ client reported that the highly respected, very successful, plaintiff’s attorney made a lackluster presentation. The very next day Magnus conducted mock jury research for this client and the adjuster was also present when there were three plaintiff’s verdicts. It would appear that the attorney who role played the plaintiff’s case was more successful than the real plaintiff’s attorney! Fortunately the client/adjuster had the results of the mock jury exercise to help him in making an informed decision to resolve the case.

Of course, in mock jury research, there are differences from actual trials that limit our ability to predict the trial outcome with 100% accuracy. For example, the arguments are abbreviated. However, in the Summary Jury Trials there is pressure to settle the case based on the “verdicts” rendered. In contrast, mock jury research is designed as a learning process and a way to test worst case information in a setting where only one side of the case is privy to the outcome so that the case can be refined and problems debugged. While the verdicts are still merely indicators, not predictors, there is no disincentive to hold back and not test potentially harmful case details. It is a very significant difference that the opposition is not participating!

You may not be able to avoid a Summary Jury Trial, and it may be somewhat informative. How you handle it requires significant thought given the difficult issues presented by the process. However, a Summary Jury Trial does not replace Mock Jury Research; they serve 2 different purposes. Mock jury research ensures that you are doing all that you can do to help yourself and your client prepare for a real trial.

Contact Magnus today to arrange your next mock trial.

What You Don?t Know Will Hurt You

Are you wondering what jurors will say about your case? Are you wondering what kind of people will be good or bad jurors for your upcoming trial? Are you certain you know how to handle sensitive case issues? Have you never handled a case exactly like this one? If you are a plaintiffs’ attorney, do you know whether or not you are likely to obtain larger damages than the amount you are being offered at mediation? If you are a defense attorney, do you know whether a jury will award more than what your client has authorized you to settle the case? Do you think you have a good grasp of your case’s strengths and weaknesses, but your client sees things differently? Are you well equipped to present complex commercial case facts in a manner that is comprehensible to the average juror? Are you certain you have covered all your bases prior to mediation, arbitration, or trial? Are you certain about what you don’t know to the same degree you are certain about what you do know?

Contact Magnus – We are in the business of answering these questions, and more.

The Myth of Jury Research as Voo Doo

Now that jury research and consultation, including mock trials, focus groups, attitude surveys, jury selection services, and witness preparation assistance have been around for decades, it is always surprising to hear an attorney or an adjuster describe jury research as “voo doo.” The characterization of jury research as voo doo implies that something magical, mystical, and/or improper will take place or that the party retaining a jury consultant somehow has a power over his/her client, the ability to unfairly control the outcome of the case, or worse. Many jury consultants are professionals with advanced degrees who employ scientific methods to conduct their research. In addition, there is a sizable body of social science research, conducted by well respected academics, upon which jury selection decisions are based. Although some people might argue that jury selection is more of an art than a science, many top trial lawyers and litigators would never consider going to trial, or even mediation, without working with a jury consultant first. Jury research and consultation provide a wealth of valuable information that cannot be obtained via any other means. This myth of jury research is merely a myth that results from misinformation and a misguided view of today’s sophisticated research techniques.

Contact the scientists at Magnus for information on debunking the myths related to jury research.

Using Jury Research to Evaluate Risk

In the decades since Magnus’ Director of Research, Dr. Melissa Pigott, has been conducting social psychological research studies to assist attorneys prepare for arbitration, mediation, and trial, there has been a decrease in the number of research projects (including mock trials, focus groups, and attitude surveys) conducted immediately prior to trial. The vanishing jury trial phenomenon is well known and our attorney clients confirm they do not try cases as often as they used to; instead most cases are resolved as a result of the outcome of mediation or arbitration. Thus, Magnus has had a corresponding increase in the number of research projects conducted to evaluate cases and to help prepare strategies for mediation and arbitration.

This change of pace for many of Magnus’ clients has resulted in fewer attorneys having extensive courtroom experience, which, in turn, has led to increased difficulty in evaluating cases. (Decreased courtroom experience also impacts attorneys’ clients when clients are adjusters who also see fewer jury trials than in the past.) Jury research undertaken prior to mediation/arbitration can fill this knowledge deficit by revealing the thoughts, motives, and other predispositions of people who are similar to the jury in the event the case does not settle prior to trial. A thorough analysis of risk, whether the attorney represents the plaintiff or defendant, is crucial for accurate case evaluation prior to mediation or arbitration. Knowing the upside and downside of a case can help parties make informed decisions about resolving cases, and provides knowledge of which ones to litigate through trial.

Don’t go into your upcoming mediation or arbitration without contacting Magnus to evaluate your risk. Contact Magnus for more information on our ability to help you “win” early in your case.

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 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.