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.

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.

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.