It is very rare that we ever get complaints from clients so it took me aback a few years ago when a client said, “I have one complaint.” The client was a defense attorney handling a very tragic case involving an electrocution and death. Few things are as horrible as electrocutions. He was defending the case and our research helped him focus his energies into getting his insurance company client to understand the risks of taking the case to trial. Because he was able to use the research results to negotiate with his own client, he got the case resolved. It was a win in his book, no matter that he and his client paid a sizable amount of money to the plaintiff. So, I had trouble thinking of what reason he had to complain. I responded, “What is your complaint?” His response, “You should have made me do this (the research) sooner.” I responded, now knowing that his complaint wasn’t really a complaint, “How can I make an attorney do anything?” And, we carried on from there discussing how hard it is for us to get attorneys to realize that the sooner (within reason) research is conducted, the sooner the attorney can benefit from the results. What he wanted me to know was that it was difficult for him to incorporate all of what we found and all of our strategy and trial recommendations given how close he was to trial when he retained Magnus for mock jury research. I wanted to say, “I tried to tell you…” but resisted. I now use this story with clients who are hesitating and hedging on timing. Conducting mock jury research is enlightening, but it also creates work for the attorney. Sometimes it sends them back to the “drawing board” to determine, with our help, a better approach to case arguments. Sometimes it requires them getting back in touch with their experts, witnesses, and clients to re-evaluate issues. All of these things take time and busy trial lawyers find the finite nature of time frustrating. But, if mock trials or other research is done with enough time to allow some breathing room, it makes the attorney more efficient and focused earlier and actually, can save time. So, I try to “make” prospective clients do it sooner, but it is an never ending battle.
As much as I believe my professional advice should be accepted, particularly by clients who have hired me to provide them with my advice, I have never, ever, been able to “make” or “force” a client to accept my advice. The consequences of an attorney’s failure to act upon my advice have, unfortunately, been dire, but it is impossible, at least in my view, to force anyone to do anything. Within the context of jury selection, when I am being paid for recommending which potential jurors to exclude, there have been a few notable occasions when my clients have chosen to completely disregard my advice; instead, they allow someone to be on the jury because their instincts tell them this person will be a good juror. I can argue about my scientific reasons for recommending the juror be excused, but when an attorney is the type of person who over relies on his/her instincts, it is highly unlikely my sage advice will be heeded. I mention this example as an illustration of the fact that, if a client refuses to heed my advice after paying me (handsomely, I might add!) for it, then it is a logical conclusion that a prospective client, who has paid nothing to obtain David’s and my advice about the best approach for conducting focus groups, mock trials, surveys, etc., will often refuse to act upon our advice. As we have discussed in previous posts, many people truly believe they “know it all,” and as a result, it is difficult for anyone, including a highly educated expert, to tell them anything. Sometimes, I wonder why this type of person contacts Magnus to begin with; if he/she really knows everything there is to know, then why waste our time telling us we don’t know anything? (And, to digress, it is disturbing to me that my friends and family members often ignore my professional advice because it is being provided to them free of charge! But, I will leave this for another post.) The client David mentions waited “until the last minute” to retain us for mock jury research on his substantial case and he, not to mention his client, paid the price for procrastination with his inability to change his flawed approach to trying the case. He was overly invested in trial strategies, case theories, and themes that our research revealed were absolutely wrong and would guarantee a poor outcome for his client. Was it our fault that he waited too long? Was it our fault he could not change direction to present his case in ways he knew would appeal to the most jurors? Sometimes, the wisest approach in a difficult situation is to step back, take an objective look at all available information, and accept that someone else just might know more than you do. But, this will never happen to people who know it all!