Trial Consultants Are Not Just for Trials

It happened again. I am introduced to a new, prospective client, a lawyer at a very large firm – one with a nationwide presence, hundreds of lawyers, and many offices. This is the kind of attorney whom I assume understands the concept of what a trial consultant does. But, no. I send an email introduction and the response is “…I’ll keep you in mind if we ever get to the trial stages of a case – very rare at a firm like this.” I know it is rare, and the truth is most of our work is conducted way before any trial, and usually, before mediation. Therein lies the problem with being known as “trial consultants.” Most of our work is done to help clients get an idea of the up or down side of a case. A benchmark, if you will; recently a client referred to our work as an “analytic.” Sometimes it is a “reality check.” Early research helps sort through the issues to determine where to focus the trial team’s efforts, what is needed in discovery, and to create something of a litigation road map. I don’t know how we ever get out of the pigeon hole of only being seen as needed for trials – other than me saying and writing things like this. (We’ve written about this before, see,
https://magnusinsights.com/2017/03/identity-crisis-of-trial-consultants-part-2-trials-v-mediation/.) As trial consultants, we do considerable work that should not wait for trial preparation. For example, we are called upon to conduct witness preparation to ensure witnesses are ready to do their best at depositions. This is much preferred to getting called in after the witness has dug a hole for himself or herself. Finally, calling a trial consultant when all else has failed and trial is the only path forward puts everyone in a bind. We’ve seen trial teams that followed unproductive paths, wasting time and money on dead ends throughout the litigation. Worse, some of these teams were invested in the wrong approach to the case but they could not easily adjust and respond to what they learned in jury research. The timing for when to get the most benefit from experienced trial consultants is best determined by calling the consultant early and collaboratively working through the issues in the case.

There are many people who believe they know more than they, in reality, actually know. Prospective clients who presume to know more than I know about the field in which I have been employed for the past 30 years are, in my opinion, rarely going to become Magnus clients. The misnomer “trial consultant” notwithstanding, it never ceases to amaze me how many times I hear the lament David mentions about an attorney never going to trial, thus, never needing my expert advice. In fact, if Magnus and its competitors exclusively worked on cases that go to trial, we wouldn’t have much work to do. For most of my career as a social psychologist working in the area of litigation research and consulting, attorneys have retained my firm months, even years, prior to their trial. In addition, the vast majority of work we perform on behalf of our clients is completed prior to mediation and/or arbitration, not, as some people believe, before trial. It is the rare case on which we become involved shortly before trial. I will go one step further by saying that, if a prospective client waits until the last minute to contact Magnus, with the trial date imminent, it is doubtful we will be able to help him/her. There is too much work to be done on our part to undertake at the last minute, not to mention that the attorney won’t have the time or cognitive resources required to change the theories of the case prior to trial. The quick, almost reflexive, comment that “I haven’t tried a case in 15 years, so why would I ever hire you?” indicates, to me, that this prospective client is someone whose uninformed opinions are probably best left alone, lest he/she learn something from someone who, in fact, knows more about something than he/she could ever hope to learn. Kudos to David for being patient and kind to this type of person. I wish them well as I move on to more open minded clients’ cases.

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