Melissa and I have been working with trial lawyers and litigators for 25+ years conducting mock trials and more on high stakes litigation. We have recently been reflecting on some of the changes we have observed and how significant, but perhaps subtle, some of them are in terms of their lasting impact. Certainly ADR, in its many forms, including arbitration and mediation, has been around for some time. When we started Magnus in 1993, and well before that when we both worked for other companies, mediation was a part of the plan for all cases. It was somewhat new, and many of the lawyers begrudgingly went through the motions to mediate, all the while building a battle plan for trial. Mediations were beginning to be forced by the Court as a way to clear dockets, but it was clear that the types of clients who hired trial consultants were of the mind to battle it out in the courtroom. A settlement, at that time, seemed like a concession. And, being forced to mediate was a nuisance. Over the past 25 years, as a result of the growth of mediation, and the resulting lack of trials, and lawyers’ trial experience, things have changed.
We have written elsewhere on the ramifications of the lack of opportunities to get trial experience, for lawyers, and for their clients, insurance carriers, and others. For lawyers, this means not staying sharp on their oratory and other presentation skills – decreasing their effectiveness in some ways. Additionally, it is obvious that insurance adjusters including those with long careers, suffer from not observing and participating in trials in terms of their ability to make optimal decisions about litigation. As with everything, the practice benefit is real; the absence of practice is equally real. But, while there is more to say about this issue, the focus of this article is somewhat different; it is on the aforementioned subtle twist.
What is now becoming more clear to us in dealing with litigators is that the mindset has changed from wanting to battle it out in the courtroom to wanting to “resolve the dispute” in mediation. A failed meditation used to be like a call to arms; today it often leads to the wringing of hands and fear of “what do we do now?”
There are many reasons lawyers and their clients want to avoid trial. Risk and cost are high on that list. However, in some cases that there are costs and risks of not being willing to take cases to trial, to not be prepared for a full scale battle. The cost is “settling” which, by some definition, means a result which is less than full value, less than the plaintiff wanted, perhaps more than the defendant wanted to pay. It is not an optimal outcome perhaps, for either. “I’ll settle for that” indicates a less than optimal result.
The risks are at least three fold. First is the obvious extension of prior comments, not getting courtroom practice. Second is the issue of whether being reluctant to try a case sends a message of weakness. And, third, it creates an internal pattern of litigation that aims to take a “safe” but short term perspective. That is, the bar is set low. Settle the case, don’t risk a better outcome through trial. This applies to both plaintiffs and defendants.
The end result is that many litigators are timid about really preparing a case in a way to get the best result for a client by doing everything it takes to WIN. Accepting settlements creates a pattern of practice that drives lawyers’ behavior. We have actually been told, “We’re going to work it up to settle”, when 20 or so years ago it was “We are eager to go to trial.”
In our work as trial consultants, this has impacted our business as it relates to attorneys with the “settle only” mindset, who don’t want to engage us unless all else fails. But, the reality is that the majority of the cases on which we do mock jury, mock arbitration, or other similar work, do settle. The difference is that as of result of having conducted the mock jury or mock arbitration, the lawyers and parties are in a more informed position to resolve the case at a more optimal level. Having established a benchmark, a settlement can be viewed more in context.
Obviously, this assessment is rather broad; it is not intended to indicate that all lawyers, or their clients, have gone soft. But, there is an aspect of a concern. As any military strategist would tell you – you don’t want to fight an unnecessary battle. But, neither do you want to shy away from a fight when the result is your opponent sees you as weak and will take advantage of that weakness.
There are as many reasons to retain the services of organizations like Magnus as there are attorneys who litigate cases. However, all too often, consultants who assist attorneys with the human dynamics of litigation are “pigeon holed” due to erroneous perceptions about what we do. It has always been the case, since I began working in this field during the 1980s, that “trial consultants,” or “jury consultants,” or whatever term is used to describe us have conducted a wide range of services, some of which have nothing to do with juries or trials. In fact, one of the earliest cases I worked on involved a mock arbitration, such that, as far as I am concerned, there is nothing new or innovative about arbitration, mediation, and other forms of alternative dispute resolution (ADR) that have become popular ways of litigating cases. My expertise, and that of my company, extends well beyond selecting a jury and the skills I possess are equally applicable to all forms of litigation. Explaining this to potential clients, as well as some current clients, has proven to be quite challenging due to their narrow mindset, as well as the recent trend of avoiding preparing cases for trial until the absolute last minute. Magnus (and its competitors) provide attorneys and their clients with valuable information about how their case is perceived by the people who will be deciding its outcome, including arbitrators, mediators, judges, and juries. Our research methods vary depending on whether we are assisting our clients prepare for trial, mediation, or arbitration, but there are many commonalities among our methods. In my opinion, regardless of the forum by which a case is ultimately going to be resolved, obtaining a benchmark in advance, through research conducted with people who approximate the characteristics of the actual decision maker(s), is something every attorney should consider, particularly when the stakes are high. The type of information obtained through focus groups, mock arbitration, mock mediation, and mock trials is unattainable via any other means, such that, if an attorney omits commissioning this type of research, he/she will never, ever know the likely outcome of the case. The cost of retaining a consultant to assess the human dynamics of litigation are minuscule compared to the cost of having the case decided in unanticipated ways. Sadly, not knowing what one does not know seems to be an increasing part of many attorneys’ and their clients’ business model. The world of litigation is changing; failing to use all available resources to help one’s client is an unfortunate consequence.