In the vein of prior posts, this is an attempt to clarify another misconception about what we do as trial or jury consultants. Usually in the context of an introduction, I hear what might be called “sales objections.” There are varieties of these objections, but one is this, if introduced as a “jury consultant” I sometimes hear a retort, “Well, we never do jury trials, we only _______.” The blank is typically either “settle our cases at mediation,” “do bench trials” or “resolve cases in arbitrations.” For the first one, see the prior post, Trial Consultants Are Not Just for Trials. For the latter 2, guess what, judges and arbitrators are people! Their decision making style may be a bit more legalistic than jurors’ style, or involve more industry knowledge and nuances, but as individuals and groups, they make decisions too. And, their decisions can be influenced by the style, nature, and focus of the lawyers presentations. The fact that judges and arbitrators can be influenced is obvious and any trial lawyer arguing a case in these forums will make every effort to present the case in a favorable way, or at least in a way that he/she, as the trial attorney who has lived with the case for years, thinks will be influential. That, however, is part of the problem. Just as with jury trials, lawyers sometimes develop blinders and they fail to explain important details. In these settings, it has also been, in our experience, that the lawyers approach the case more legalistically or technically than they do with juries. While well educated judges, lawyers, or other arbitrators (who are usually professionals in some field like construction or finance) have the capacity to understand technical issues, if the presentation can be expanded and enhanced, with examples, demonstratives, and other techniques, the outcomes can be improved. Further, end clients often want to know about likely outcomes. As a result, we’ve been engaged to conduct mock bench trials (using former/retired judges), mock arbitrations (selecting arbitrators qualified for similar arbitrations), and mock mediations (with, you guessed it, real mediators). By simulating the process, we learn, and our clients learn, likely outcomes, and how to “tweak” the presentation for the “real” arbitration, the “real” mediation, or the “real” bench trial. Not all jury consultants are fully qualified or have specific methodologies for such research, thus, they must be vetted accordingly. Our procedures, for example, have been refined over time. And, while there are many differences between mock juror research and these other simulations, with care, such simulations are extremely valuable to the trial team and their clients. If humans are asked to reach a decision, we can do research to simulate that process and devise litigation assessments and trial strategies from there. (For a related post, see https://magnusinsights.com/2017/03/identity-crisis-of-trial-consultants-part-3-jury-v-bench-trials-or-arbitration/)
I prefer the term, “litigation consultant” to other terms more frequently used to describe the kind of work I perform. When I am asked what I do for a living, I rarely say I am a “jury consultant” or a “trial consultant.” Few laypersons know the meaning of any of these expressions and surprisingly, some attorneys don’t get it either. The social psychological research methods I employ are scientifically sound; they can be applied to arbitration, mediation, bench trials, and jury trials. The expertise I possess does not vary according to the identity of the person(s) who will be deciding the outcome of a case, regardless of whether the decision maker(s) happens to be a jury or an arbitration panel. People are people, regardless of whether they are average people who comprise a jury or whether they are sophisticated securities attorneys on an arbitration panel. Prospective clients who tell me they never need my help because all of their cases are subject to court ordered, non binding arbitration are, to put it mildly, missing the boat by believing Magnus has nothing to offer except “jury picking.” Jury selection, although it has always been an important part of the services we offer to our clients, is rare when compared to our other services, such as focus groups, mock trials, and mock arbitrations, due to the simple fact that most cases settle prior to trial. An attorney’s failure to use all available resources, such as conducting a “dress rehearsal” mock mediation prior to a make or break mediation, is unthinkable to me. Sadly, however, the unthinkable to me is standard operating practice to some attorneys, who persist in incorrectly believing their educated guesses about the outcome of their case are good enough for their clients.