Commercial Litigation: Benefits of a Trial Consultant, Part 1

I had a conversation with a friend/client recently. He previously hired us in a personal injury case, but now works in a firm that does mostly commercial litigation. The question arose about what we, at Magnus, do in commercial cases. I explained that a high percentage of our cases are commercial cases. Sometimes, clients or prospective clients have a mistaken perception that we only work on personal injury cases. Nonetheless, we know there are many reasons that we, as jury or trial consultants, bring a perspective to commercial cases that is helpful in unique ways. This post is the first of several to outline some of these factors. The first factor I think about is that commercial cases often involve disputes between owners or executives of companies, that is, people are accustomed to being “in charge.” They call the shots. In litigation, they do not. The constraints faced due to “the law” and legal processes, including rulings by the judge, frustrate these executives who just want things to get done and done quickly. These frustrations often create friction between the lawyers and their clients. These frustrations and frictions sometimes manifest themselves in the way the executives communicate, for example, in depositions. If the executive exhibits those frustrations in a deposition, especially those which are video recorded, they will be perceived as arrogant, and will probably be criticized for that “performance” by jurors or judges. Which brings us to benefit 1 of jury consultants – witness preparation. Witness preparation should be conducted prior to the executive/witness digging a hole for himself or herself during a deposition. We know lawyers prepare their witnesses, but we also know that preparation is far better when an expert in human perception and communication is a part of that process. Helping the executive understand the process, the decision makers, and their role, all of which is different than their “day job,” is a part of witness preparation engagements.

I have worked with many witnesses during my career.  As with many things in life, my first experience is memorable.  The case was a high profile case in my hometown and the key witness was the owner of a well known and well respected corporation.  Both the corporation and its owner were defendants in the case.  The company owner was nice, on an interpersonal level, but his education, training, and decades of experience in his occupation created a dull persona.  He was somewhat arrogant (although not as arrogant as witnesses within the most frequent occupation with whom I have worked, physicians!) and had the tendency to “talk down” to those of us who lacked his expertise.  Given the nature of the case, his testimony would either “make” or “break” the trial outcome and his attorney was, understandably, concerned.  We conducted mock jury research and the witness was not perceived favorably, thus, I was able to remind the witness of this each time he balked at my suggestions.  In the end, and after my assistance in selecting the jury, combined with the attorney’s stellar trial skills, this potential loser of a multi million dollar case was a winner.  The company owner thanked me profusely for my help in convincing him to be more likable to the jury and there is a plaque with my name on it, thanking everyone for this momentous victory, in the company’s headquarters.  To the extent someone, such as a witness, is willing to allow me to help, I am willing and able to provide it. 

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