Better Safe than Sorry

A client of ours recently told me his motto was better safe than sorry. This was in the context of setting a meeting and allowing adequate time for Miami traffic – which can be a real challenge. But, his motto is something I’ve often thought about and attempted to use, tactfully, with potential clients who are on the fence about conducting mock jury research. Over the past 25+ years working with attorneys, I’ve talked with many who were unsure whether it was “worth the money” to conduct jury/fact finder research when they think they have a pretty good handle on a case. These are usually the attorneys who have little experience doing so and they are less familiar with the myriad of benefits. In these situations I often want to blurt out, “Other than money, what do you have to lose, wouldn’t you rather be safe than sorry? Wouldn’t you rather take your punches in a practice bout than get knocked out, proven wrong, in the courtroom?” Doing research provides information that can be used to improve strategies and/or make a litigation go/no go (i.e., settlement) decision. What can be wrong with gathering data and determining if your “view”of the case is the same as that of the decision makers – whether jurors, judges, or arbitrators? Recently I wrote about some clients who did not even want to suggest a mock trial to their client, see “Not Telling Client About Proposal”.  I still do not understand this, and especially, now that they lost the case, I really don’t. Wouldn’t it have been better to be safe than sorry? Years ago, a prospective client said he was unsure how to admit to his client that he needed a trial consultant, because the client hired him to try the case based on his years of experience. How could he, he wanted to know, admit needing help? My response included suggesting jury research to ensure that assumptions and impressions he had of the case, and that his client had, were correct. Didn’t he want to find out before it “counted”? He put his fear aside, made the call to his client, got us approved, and guess what, learned good information – and got a good result. Better safe than sorry seems to be a fundamental reason to conduct mock jury research! Thanks, Brian, for the reminder!

I am a firm believer in the motto, “better safe than sorry.” I am a careful, conscientious person who checks, then re-checks, then re-checks my work, in an attempt to prevent errors. Many of Magnus’ potential clients, however, prefer to “fly by the seat of their pants” then hope for the best outcome, sometimes having an opposing counsel who is even less prepared to mock try a case. Realizing that the personality traits of trial lawyers and litigators are vastly different from those of social psychologists, I have always tried to accept our differences with equanimity. This being said, I will never understand the unwillingness of some attorneys to conduct pre-trial, pre-mediation, or pre-arbitration research to assess the strengths and weaknesses of their case, preferring, instead, to adopt a “know it all” perspective about their chances of prevailing in their high stakes litigation. Yes, the know it all attorney could be right, but what happens if the know it all attorney does not actually know everything there is to know about: (1) his/her case; (2) the decision making propensities of the people who will decide the case; (3) social psychology; or (4) the world, in general? What if, just this once, the attorney (or claims adjuster, or other decision maker) is absolutely wrong? We have worked on countless cases that were seriously undervalued or overvalued by the attorneys prior to our research. Often, our research results are unexpected and lead to the attorneys’ re-evaluation of their case. Absent our research, these clients would have made decisions based on nothing more than their feeling or hope for a positive outcome which, in many cases, would have resulted in a devastatingly negative outcome for their client. Better to be safe by conducting a scientific assessment of one’s lawsuit than sorry to be on the losing side by merely hoping for a good outcome.

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