If all else fails…

I remember that I first heard “If all else fails, read the directions” from my Dad, decades ago. He really didn’t operate that way, but the point was, if you can’t figure it out on your own, the directions might help. (Not always – I wonder who writes some of them!) Anyway, this year has been a year when I’ve observed this from another angle, and though I’ve mentioned something along this line in prior posts, I want to revisit the idea. This has a been a year when I’ve observed, “If all else fails, call the trial consultant.” That is, “When we could not get the case settled, call for help, because (horrors) we might actually have to try the case.” At one level I get it; clients don’t want to spend an extra dime and as we know, most cases settle. In fact, most cases on which we do mock jury research settle. But, it concerns me that I’m seeing the trend to the “if all else fails” mindset. This is because I know, despite the issue of spending money, that the kind of research we do as trial consultants results in better outcomes, whether in a settlement or trial. And, I also know that calling a trial consultant a mere 2 to 4 weeks prior to trial is not optimal. Because of the time required to get the project set up, recruit the mock jurors, etc., sometimes there is not enough time available, and that is assuming the consultant’s schedule is wide open. We have had to decline 2 cases this year because the attorneys called too late. In a few other situations, we’ve pulled things together and completed the project, and, while the research was successful, and the results helpful to all involved, it could have been more helpful had it been conducted sooner. I will always remember the client who told me “You should have made me do the research sooner.” I wish I knew how to do that, that is, how to make people hire us before all else has failed.

It is strange to consider that, for an increasing number of attorneys, obtaining advice from a trial consultant is done only as a last resort. Thinking within this narrow frame of reference is harmful to the attorney, not to mention his or her client, for a variety of reasons: (1) last minute research is usually (but not always) conducted by trial consultants who employ improper methods of recruiting research participants due to the fact that doing things the right way takes a considerable amount of time; (2) last minute research sometimes involves compromises on research design because there is insufficient time to conduct multi phase research, research on multiple scenarios/case themes, etc.; (3) last minute research necessitates little time for the consultant to prepare a comprehensive report and, more important, for the attorney to change his/her approach to the case to incorporate the information derived from the research. The most savvy among Magnus’ clients contact us not at the last minute, but at the first opportunity, in order to obtain maximum benefit from everything we provide. It seems that, lately, some attorneys are contacting us at the last minute, with the hope we will refuse to assist them, so that they can tell their client “Well, we wanted to conduct mock trials on your case, but we couldn’t find anyone to help us.” Other attorneys, who contact us at almost the last minute, but within the minimum amount of time it takes us to schedule their mock trial, recruit the participants, conduct the research, then prepare the report, seem to be looking for a scapegoat on whom to blame when their lack of preparation becomes obvious to us, as well as our research participants. We at Magnus, particularly me, often take the brunt of our clients’ lack of preparedness because our work often exposes their weaknesses to everyone, including, of course, the client. I have been blamed for just about everything one can imagine, including my inability to make someone look good when he/she is anything but good. As with almost everything else in life, waiting until the last minute is ill advised, such that waiting to retain a trial consultant until there is nothing else to do about one’s multi million dollar lawsuit is guaranteed to result in a less than optimal outcome.

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