One uses a lever to gain leverage in order to be able to move something easier than moving it without the lever. I don’t know a great deal about physics, but I get this. And, it is important to look for leverage in life, in business, and in our world, the world of litigation. There are multiple forms of leverage that come into play at various points in litigation. But, the one that prompts me to write this post is mock jury research results. I recently had lunch with a prospective client who was intrigued at how a colleague of his, who is a client of ours, had used the mock jury results as leverage in achieving a great settlement for his client, the plaintiff. In this instance, our client showed a portion of the videos from the mock jury research to the attorneys and adjusters on the “other side” to allow them to see the mock jurors’ generous verdicts. (I’ve written about this practice previously in other posts, but I wanted to put this idea in the context of leverage.) Our client revealed the videos at a strategic time to get the attention of his opponents. Because the mock jury results turned out favorably for our client, he was able to do this. Many of our clients have used this “reveal” technique successfully, both as plaintiffs or defendants. But, what if the research results don’t favor the client’s case? Well, then the leverage is used with the attorney’s client. When a plaintiff needs a “reality check,” research results can provide this. We’ve had plenty of plaintiffs with unrealistic expectations, who thought their case was worth much more than reality would support. Our plaintiff’s attorney clients in these situations used the research results as leverage to bring these clients to reality as a way to resolve the case. On the flip side, the defense, we’ve had adjusters, or their supervisors, who put an unrealistically low value on a case. When the outcome of the research demonstrated a potential for a high verdict at trial, a lever was created and applied to free up additional settlement funds. In the alternative, if the case indicated the case was defensible or that the verdict was low, the defense attorney had a lever to use when negotiating with the plaintiff’s attorney to try to move the case to resolution. So, levers may be of different types, but the leverage of research results does make the path to resolution easier for those involved.
I have lost count of the number of times in my career when an attorney retains Magnus in order to gain leverage over his/her client regarding the value of a lawsuit. We have worked on cases for plaintiffs’ attorneys whose clients believe that, because the insurance (or other) company has the financial resources to pay mega millions on their claim, they should be compensated to the fullest extent possible, without regard to the merits of their case. When the plaintiff’s expectations differ substantially from their attorney’s more realistic predictions of what a jury might award, we are contacted to conduct mock jury research to inform the client that he/she should consider accepting a lower amount of money than desired. Sometimes, however, it is the plaintiff’s attorney whose opinions about the case, particularly, the client, are incorrect. We worked on a case recently in which the plaintiff’s attorneys told me their case was worth substantially less than what their client was willing to accept. When I met the client, along with his attorneys, I soon realized that the attorneys did not relate well to the client and perhaps, did not like him; thus, they were unable to see that they might have under valued the case. Sure enough, all of the mock jurors who participated in our research awarded millions of dollars more than the attorneys told me they would accept to settle the case. They asked me what to do and, based on my assistance in interpreting their research results, went to trial and obtained a tremendous result on behalf of our client. Absent testing their case in a scientific forum, these attorneys would have “given away” many millions of dollars that the defendant ultimately paid in the trial. When Magnus works for defense attorneys, more often than not, the insurance adjuster and/or corporate counsel is unwilling to pay a substantial sum to settle the case, such that our research is used by the attorney to: (1) inform the adjuster and/or other person with authority to compensate the plaintiff of the risks of going to trial; and (2) protect the attorney from being second guessed by anyone who wrongly believed the case was of little value. Leverage is only one reason why Magnus is retained to evaluate a case, however, its importance in attorneys’ decisions to conduct jury research must not be overlooked.