When I am wearing my marketing hat (one of many hats I wear, as discussed in other posts), I often find myself looking for ways to explain what a trial consultant does for a trial lawyer. As hard as it is for me to repeatedly explain, after 25+ years in this field, I frequently find myself explaining the basics. This is less surprising with young lawyers, though some of them are exposed to trial consultants in law school. But this is also true with lawyers with 10+ years of experience who have never been educated on the subject, and have never had the opportunity to work with “one of us.” Clearly, the fundamental reasons trial consultants are hired are to evaluate the liability issues in the case – who is at fault, and, if relevant, by what amount, or percentage of liability/fault. The other variable of interest is damages – that is, “What is the case worth”? The reality of small group research, such as focus groups and mock trials, is these methods are not predictive of liability and damages issues in the ways some attorneys think. Though helpful in determining the answers to liability and damages questions, trial consultants’ work goes well beyond these fundamentals. Lawyers who are more experienced with the research conducted by trial consultants know that the consultant’s role is to help identify and “fix” (when possible) problems in the case. One explanation I have found to be helpful in this regard is to explain that we help with “debugging the case.” Using the analogy of how computer programs are refined, I explain that we look for the problems with the case and then help, to the degree it is possible, find ways to lessen the impact of the bugs. Clearly, lawyers take their cases and clients, “warts and all”; not everything can be fixed. The lawyer has to know, however, how to file the rough edges off of their case issues, not to mention their clients, and how to explain these limitations to the client. Sometimes, it is the lawyer who does not understand the limitations, but more often, it is the end client. The plaintiff may think the case is worth more than it is; the defendant may not see any liability. But, beyond that, plaintiffs may have some issues in their background that “taint” them in someway and they do not want to admit these faults. Defendants may not understand that their everyday demeanor, or management style, will have an impact on the case. That is, they don’t realize it until mock jurors point this out, and we, as trial consultants, relay the information to the relevant parties. It is in identifying and fixing, or trying to fix, the “bugs” that trial consultants can most benefit the trial team. Back to the software analogy, mock jury research is the “beta test” of the case, in preparation for future roll out in a trial.
As of this writing, I have consulted on thousands of high stakes civil cases. So far, there has never been a client who retained my services (or those of my employers, prior to the time David and I founded Magnus) because he/she believed he/she had a perfect case. Quite the contrary: 100% of the cases in which I have been involved have had one or more serious and problematic issues and the attorney or other client who retained us did so because these problem issues needed to be corrected, that is “debugged,” prior to arbitration, mediation, or trial. The types of problems vary with each case and range from an unlikable plaintiff or defendant to tenuous causation between liability and damages, with many other issues in between. In extreme cases, our research (in the form of surveys, mock trials, etc.) reveals the weaknesses in the case are too huge to overcome. When this happens, our client usually settles the case soon after the research is conducted. More often, however, our research yields information that allows me to devise strategies for my client that, if followed, will turn a “loser” case into a case with a positive outcome (defined as a favorable settlement, arbitration decision, or verdict). In almost every case I have worked on, there is an “Aha!” moment that no one on the trial team had considered. This “Aha!” moment is usually the beginning of the debugging process. It is my job, in debugging the case, to interpret the research results for my clients, use these results to capitalize on strengths while minimizing weaknesses, and help my clients become more persuasive communicators. Absent conducting some kind of jury or other fact finder research on one’s case, the case will proceed to its resolution without all of its problem issues debugged, a risky proposition, indeed.