Ready for War

A Point of View

David H. Fauss, M.S.M.

On June 29, 2017

Category: Business Frustrations, Getting the Job Done, Litigation Tips, Magnus, MagnusInsights, MagnusResearch, Trial Consulting, Trial Science

In the first few months of this year I have received several calls from attorneys looking to engage a trial consultant in what I consider to be ridiculously short time periods. Two cases will illustrate my point. First was a call from an associate attorney at one of the largest law firms in the state who was defending a significant and complex commercial case. The call came less than a month before trial and at a time the trial team was so slammed with last minute depositions and hearings that they really did not have time to conduct mock jury research. And, another call was from an associate at a plaintiffs’ law firm about a medical malpractice case involving catastrophic birth injuries including brain damage. That attorney was specific for the need to do the research on a specific day (and, as has been reported in another post – asking that many other shortcuts be taken as to venue and more). That specific day was about a week from the time of his call to me, and though he did not tell me on the first call, that day was 3 days prior to trial. All of which means, on a potentially multi-million dollar case, the first call to a trial consultant was 10 days prior to trial. In both of these cases I got the impression that the attorneys expected their cases to settle, and that never thought there would be a need to go to trial – or hire a trial consultant. We have written in other posts and places about this phenomenon of a disconnect in the preparation of cases by some attorneys and a lack of experience that is hurting their ability to fully represent the client to achieve the best outcome. Perhaps when it is the defendant or a commercial plaintiff, the end client has been unwilling to permit the use of a trial consultant; sometimes this is the case. And, we have had calls, usually with a little more of a window of time, in which we have been called late and were able to put the research together. But, these 2 examples were the worse of recent late calls. With this background, I’ve been struck by the chorus of the song Ready for War (Pray for Peace), released in late 2016 by the band Adelitas Way, which repeats the line “I pray for peace but I’m ready for war.” While clearly written in another context, this line says much about the scenario I’ve just described. Just as armies train constantly, make sure their weapons are ready, and that ammunition is stockpiled to be sure any negotiations for peace (settlements) are done from a position of strength, so do our knowledgeable and experienced clients prepare for trials (wars). Being prepared and not needing all of the “ammunition” one stockpiled is much less harmful to clients than not being ready to do battle in trial if all else fails. Are you ready for war? If not, call us – sooner rather than later. As the Boy Scouts say “Be prepared.”

I will begin my part of this post by saying how thrilled I was to read David’s reference to a current rock band, Adelitas Way! I love classic rock and roll, but I love today’s rock and roll just as much. No offense to David’s favorite band, RUSH, or mine, The Beatles, but quoting a lyric from a thriving band that is actively making new music is great! But, given that David’s post is about attorneys, not rock musicians, I will get to the point. Being “ready for war,” in attorneys’ parlance, is when an attorney takes a proactive role in doing whatever it takes to help his/her client with a lawsuit or a criminal case. The war analogy is used by attorneys to reference their approach to trials when the winner often takes all from the loser. For example, attorneys have “war rooms” where they maintain troves of boxes containing thousands of important documents related to their trial. Thus, David’s use of the war analogy has basis in attorneys’ reality. However, most cases settle instead of go to trial, attorneys rarely get the opportunity to perfect their battle skills, including working with a trial consultant in the most effective manner. Attorneys’ focus on settling their cases leads them to become more skilled at “pushing paper” than in persuading juries to return a favorable verdict. Some attorneys appear to be frightened by the mere prospect of going to the courthouse, let alone having a jury trial. Their fear and inexperience combine to create a self fulfilling prophecy whereby they settle cases in order to avoid going to trial. The more cases they settle, the fewer they try, and the more out of touch with jury behavior they become. Many of our clients tell me they have not had a trial in years and, as a result, they have lost whatever courtroom skills they once had due to the constant pressure to “save the client money” (money which may or may not be actually saved) by avoiding the courtroom. This vicious cycle results in attorneys doing just about anything they can do to not prepare their case for trial, including not contacting their jury consultant until it is too late. When this happens and David tells the attorney, “Sorry, Charlie; you have waited too late for us to be able to help you,” the attorney can conveniently blame us for our inability to perform a miracle, save the day, etc. The blame shifting approach may work a few times with some clients, but it perpetuates the attorneys’ procrastination and ill preparedness for the next case, and the one after that, and the one after that. My advice to attorneys who call themselves “trial lawyers” is prepare every case for the battle of trial while keeping an open mind for settlement opportunities, not vice versa.

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