Reality check – Defendant

A Point of View

David H. Fauss, M.S.M.

On October 20, 2016

Category: Uncategorized

I previously wrote about how mock jury, mock mediation, or mock arbitration research provides a “reality check” to plaintiffs. It does the same thing for defendants, whether they are the actual party, the company, or the insurance company/adjuster. Many years ago, a defense lawyer told me, “I think the case is worth $X, the client thinks it is only worth 20% of $X; one of us is wrong.” He suggested that he would contact the client to retain Magnus for mock jury research in order to find out which one of them was wrong. Another time, an insurance adjuster client came to our mock jury research project with “an attitude”; he didn’t want to be there, he didn’t want to pay for it, and he was convinced it was a low risk, low damages case. Suffice it to say, he was wrong. The mock jurors “slammed” the defendants and awarded 10 times what the adjuster thought could happen “on a bad day.” As he recovered from his initial attitude – which was adversarial to the process – his eyes were opened to the insights provided by mock jury research. He had his reality checked, and then was able to take the data back to the office to share with his boss, and his boss’ boss and, not surprisingly, the case was settled fairly soon thereafter. He looked like a hero for saving the company millions compared to what was likely to happen at trial. As noted at the outset, and in the prior blog, plaintiffs may not be “greedy” or adjusters “heartless.” It is often a matter of perspective and when the decisions from typical decision makers (that is, jurors, arbitrators, or judges) are considered, the perspectives become more real. Lessons learned in mock jury/arbitration research lead to bullets dodged and more satisfactory outcomes for plaintiffs and defendants.

Another View

Melissa Pigott, Ph.D.

On October 20, 2016

Category: Uncategorized

When someone is a defendant in a lawsuit, there is often the tendency to take things personally, particularly when one is being accused of negligence, professional malpractice, fraud, conspiracy, etc.  Just as plaintiffs often over value their cases, defendants often under value their cases, believing the plaintiff is exaggerating an injury, has a baseless claim for damages, or any one of a number of “knee jerk” reactions.  (As an aside, I have always been bemused by the fact that defense attorneys would not have jobs if it were not for plaintiff attorneys filing lawsuits.  Similarly, insurance adjusters would not have jobs if there were no claims made by their policyholders.  But, we will save this irony of Magnus’ existence for another post.)  Many times, insurance adjusters are compensated based on their ability to deny paying claims and/or to pay less than the policy limits.  This financial motivation, in my opinion, leads to a rather jaded perspective on litigation, such that some adjusters believe there is no such thing as a legitimate claim.  This view, in turn, leads to under valuing the plaintiff’s claim because there is often the hope that the average person will never pursue litigation and will be satisfied with settling the case for pennies on the dollar.  In that many people do, in fact, prefer to settle their case for a small amount over the uncertainties of litigation, many adjusters and defense attorneys rarely have their cases go to trial.  When this happens on a repeated basis, the adjuster and sometimes, the defense attorney, are caught by surprise when they retain Magnus for mock trials because they cannot believe anyone would have such a different view of the value of the case.  As with many things in life, it is far better to make an informed decision about the value of one’s case by conducting litigation research than to be uninformed and receive a surprisingly negative outcome in the form of a large verdict.

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