This post is prompted by a comment made by someone with whom we frequently work in our litigation consulting business. He remarked how he hoped clients would recognize the value of our work, and his work, and see it as an investment, not just another litigation expense or cost. As I explained to someone yesterday, someone who called to inquire about a “focus group,” I know the services we offer are expensive. There is no doubt about that, even though we know we are not as expensive as some of our competitors. (Nor are we as inexpensive as others. But this part of the discussion is beyond this post.) The point is, in business, when one is promoting a service or product, such as when a lawsuit is litigated, the costs incurred in doing so can be thought of as either expenses or investments in the case outcome. We at Magnus believe that our trial consulting costs should fall into the “investment” category. We believe this because we are often told how a minor detail that emerged from our engagement, during research, witness preparation, or jury selection, made a huge difference in the outcome of the case. We are also aware that there are times when major findings emerge to give direction to the case. But, the point is, time and time again, we know that the money spent on our engagement creates an outcome better than what was expected by the client. We’ve seen this for plaintiffs who have obtained higher verdicts or settlements than they initially anticipated. And, we’ve seen it for defendants, whose results were better than they thought even if they didn’t get a total defense verdict. Yes, what we do is a cost of litigation, but as we discussed with our colleague, it is a cost that almost always yields tremendous returns on the investment. Communicating this to new clients is a bit challenging, but it keeps us going when clients come to understand it.
The quote David mentions was made by Bob Howe, who is an investigator with whom I have had the pleasure of working during jury selection. A mutual client retained Bob for an upcoming case but was initially undecided about whether to retain me. It seems that, in today’s litigation world, the services of a private investigator are deemed to be essential in conducting background and social media searches of potential jurors while the services of an expert on jury decision making are viewed as the “icing on the cake.” Bob’s point is an important one. Litigation is expensive, no doubt about it. But, when it comes to making a decision about whether to retain a jury consultant to assist with jury selection, the attorney must not confuse the expense of doing so with an investment to be made in the case, to ensure everything that could be done on behalf of the client was done. The statement is also a truism in reverse: Don’t confuse investments with expenses. An investment in litigation is akin to buying a car or a home; it is an important factor in a person’s life or within the context of a “winner takes all” trial. On the other hand, an expense, in the context of a lawsuit, is similar to the expense of maintaining one’s investment in one’s car by purchasing new tires when old tires have become worn. When attorneys tell me that my fees are expensive, I thank them for recognizing that they are willing to make an investment in their case, to ensure the best possible outcome is achieved for their client. Thanks, Bob, for pointing out this important distinction! (And, as a footnote, our savvy mutual client decided to retain my services, in addition to Bob’s, thereby making an investment in his client’s case.)