In the 3rd post in the commercial litigation series, I want to bring some points together. We’ve discussed that executives are accustomed to being in charge, to being the “boss,” and that as litigants, it is often frustrating for them not to be. Also discussed is the fact their perspective may not align with decision makers’ perspectives, that is, arbitrators, juries or judges. The benefit of the reality check is a part of that perspective adjustment. Finally, in this post, I want to add another way in which commercial cases are unique. While insurance may or may not be involved, a factor that may change the equation, the bottom line is often a key concern to executives in their daily world. Figuring out how to maximize outcomes, while minimizing risks or expenses, are things that executives do on a daily basis. We might otherwise call these things “business decisions.” The value of the risk analysis inherent in mock jury research, mock bench trials, or mock arbitrations, etc., is that it helps business people make better business decisions. Mock trials create benchmarks against which risks and returns can be measured. The benchmarks are helpful in determining the desirability of a settlement when mediation occurs. It helps businesses, and insurance adjusters, decide whether the cost of litigation is “worth the money” compared to a probable outcome. Business people want to be able to make educated business decisions. Mock trials provide the metrics by which to make such decisions.
When executives make important business decisions, they must have all available data in order to make the correct decision. When making the correct decision has an impact on the company’s bottom line, it is imperative to assess every nuance that could impact the company’s future. In the world of litigation, the bottom line of a company is impacted by the outcome of the case, which, in turn, is dependent on the person or people deciding it. If it is one person who is deciding the case, it is a judge, who is the most powerful person in the courtroom. If it is a group of people who decide the case, the group is comprised of either arbitrators, who are members of an arbitration panel, or jurors, who are members of a jury. In any of these situations, the litigant must know the predispositions of the decision maker(s), how to maximize the strengths of the case, how to minimize the weaknesses, the arguments that will persuade the most people, how key witnesses are perceived, and more. It is impossible, absent conducting some type of scientific assessment of the case, to know, with any degree of certainty, how the decision maker(s) will view the case, not to mention the ultimate outcome, the verdict or ruling. When an insurance adjuster, general counsel, risk manager, or other corporate executive has all of the tools necessary to make an informed decision, but resists using them, for whatever reason, the outcome of litigation is often costly for the company as a whole. On the other hand, assessing the case in advance of the company’s day in court can result in a victory that will be remembered for years to come.