I was recently a plaintiff in a lawsuit. I have been the client of lawyers a few times – a real role reversal for a trial consultant – and it is eye opening to see how the attorneys interact with their clients, and how the process works. The nature of my case is not important to this story, but the part of my experience I want to address is when, during a mediation, after our opening presentations and the first round or two of discussions between the mediator and us or the other side, the mediator said to me, and Melissa, “You never know what a jury will do…” This was said in an attempt to convince me to settle for less money than I had requested and the point was quickly picked up by MY attorney, who repeated it! I was a bit stunned, and slightly amused, by this comment and tactic. As trial consultants, our job is to figure out what a jury will do! We do that all the time for lots of high exposure cases (mine was not). When the mediator paused in his spiel, I reminded him of Melissa’s and my “day job” and that, in fact, there is a way to find out what juries will do. Furthermore, I explained, my case was, first of all, clear on liability, it was about a subject a jury would find interesting and it was against a defendant likely to not be well received in the situation. A mock jury exercise would have been fun, and insightful, on this fact pattern. What bothered me though, is that saying “you’ll never know what a jury will do” was obviously a tactic this mediator (and many other mediators and attorneys) use to manipulate their clients toward a settlement. I understand and agree that jury decisions may seem like unknown variables, but I know, after well over 20 years conducting mock jury research, such a statement is really a “cop out.” I also know that not every case warrants the costs of mock jury research, but I firmly believe that, if one is involved in serious litigation, mock jury research will be instructive of what a jury will do. And, armed with that information, litigants and their attorneys can make informed settlement decisions or prepare for aggressive litigation. It is not fair to clients to state, “You never know what a jury will do…” as a simple means of scaring them into settlement – whether they are plaintiff or a defendant. I am concerned that, because of ADR and decreasing trial opportunities for lawyers, sometimes these scare tactics are used to the detriment of their clients. In my case I was fine with a discussion of the strengths and weaknesses of my case; I was not comfortable with this oversimplification of the litigation process.
The point of this post is “know your audience.” I was present when the mediator assigned to David’s case made the remark about settling the case due to never knowing what a jury will do. Although it is technically true that no one, included experienced jury and trial consultants such as myself, will know with 100% certainty how a jury will decide the case, it is also true that, in order for my company to stay in business, I have to be a lot more certain about what a jury will do than the average person whom this mediator is accustomed to bullying! Remarking to a jury consultant, who has spent an entire career predicting what a jury will do, that “no one knows…” is like informing a dentist that no one knows what will happen if a toothache is allowed to hurt without dental treatment. It’s ridiculous to the point of silliness! It was all I could do, upon listening to David being chided by the misinformed mediator, not to mention his attorney (who, supposedly, was present to help David achieve maximum recovery for wrongdoing of which he was the victim), to remain in my seat, quietly and demurely, while waiting for the right moment to correct this ill gotten notion. In reality, there are lots and lots of ways to find out what a jury will do. Just ask David and me; finding out what juries do is why we are in business!