In the business world, the concept of benchmarks is well understood. A benchmark is a way to measure productivity and performance. A benchmark may take the form of a production or sales quota. But, when dealing with performance in a service based practice – trial consulting or practicing as a lawyer – conceiving of benchmarks or measurements is difficult. It seems to me that it is particularly difficult to measure good or bad results – for example, litigation outcomes, because there is often no basis for comparison of the results to know whether a specific attorney achieved the best outcome for the client in a settlement or verdict. Though an attorney or his/her client may be satisfied, or even happy, with a settlement or verdict, there really is no way to know, with any degree of certainity, what result a different attorney would have achieved on a different day. The closest thing to knowing this is to conduct a mock trial of some sort. Mock trial results provide a benchmark by which to measure whether a settlement offer/demand is favorable or whether the verdict was a “good one.” In fact, it is for this benchmarking reason that we are often hired by defendants and their insurance company clients. By obtaining a baseline measurement, everyone involved in the lawsuit can compare and consider resolution options within certain parameters or ranges. I do not know whether insurance companies or attorneys think of mock jury results as benchmarks, but that is really what they are in this context. (Mock jury results provide many other things – strategy, jury profiling, etc., but developing a benchmark is one aspect of the results.) Such a benchmark can help the end client know when the result is good and when the attorney did a good job. For example, years ago, we worked for a defendant in a commercial dispute; the jury returned a verdict in favor of the plaintiff to the tune of $8,000,000. That might sound bad, but mock jury results were in the $25,000,000+ range, so obviously the defense attorney did something right and the mock jury results could be compared to the trial outcome, which reflected the hard work and skills of the trial team. Absent a benchmark of $25,000,000, an $8,000,000 verdict might have seemed bad, but with a benchmark, it looked fantastic!
Many attorneys have asked me to provide a list of cases on which I have worked that proved the case outcome was improved due to my and my company’s involvement. As David points out, there is are no available means for me to provide this information because I do not know what would have happened in the case absent my involvement. In addition, although I spend a lot of time providing written recommendations to my clients regarding ways to improve trial strategy, there is no way I can force them to adopt any of the recommendations I provide. Sometimes, my company is hired by an insurance company or another type or corporation because they have concerns about their attorney and thus, it is impossible to know what result might have been attained if a different attorney had been involved, or if the attorney and client agreed in their assessment of the case weaknesses, or if a different adjuster had chosen to settle the case instead of going to court. My response to this quandary, based on an attorney’s desire to have a guaranteed case outcome after conducting jury research, is that, just as no attorney can guarantee a certain outcome in any case, there are no guaranteed outcomes derived from conducting jury or other fact finder research. Instead, conducting jury, arbitration, or mediation research provides a benchmark by which to compare the actual outcome of the case. If, for example, the attorney “loses” in the mock jury research, but, after following all of the advice I provide based on analyzing the research data obtained from the mock jurors, wins in court, then we can conclude the jury research findings led to a change in trial strategy, which then led to a positive outcome. This is the kind of benchmark that, without conducting pre-trial jury research, would not be available.