Calculated Risk

For a number of years, Melissa spoke to law students at Stetson University at the invitation of the late Professor Mickey Smiley. Professor Smiley did his students a favor, which I hope they later appreciated, of inviting successful trial lawyers, and at least 1 trial consultant, (Melissa) to speak to his trial skills class to bring some real life to academia. He was present to introduce the speaker and to facilitate questions afterwards. In an introduction of Melissa he once said, “Litigation involves risks. A Trial consultant helps calculate those risks.” I liked that. I wrote it down and have used that phrase many times over the years when working with lawyers who have never utilized a trial consultant. I’ll admit, not all cases warrant the expenditure of considerable funds to hire a trial consultant. The benefits in those equations outweigh the risks. But, I think Professor Smiley was on target. In litigation, as in most of life, one must consider the risks and benefits of certain actions. “Testing the waters” in litigation is often achieved by conducting a real test – a mock trial. It is much better to discover flaws in a mock jury exercise than in the actual courtroom and trial. Calculating risks allows outcomes to be improved. It allows informed decision making about outcomes. It provides a degree of protection to the lawyer whose client is unrealistic. Other than costs, there is no downside to risk calculating. The cost of miscalculating risk can far outweigh the cost of calculating.

Professor McKinley, “Mickey,” Smiley was a beloved law professor at Stetson University.  He passed away in 2016, following a lengthy tenure at Stetson.  Beginning in 1997 and continuing until Professor Smiley’s retirement in 2005, I had the honor of being an Adjunct Professor in the College of Law, where I lectured to students in his advanced civil trial skills and medical jurisprudence classes.  Over the years, David and I spent a lot of time with Mickey, getting to know him relatively well, to the point that Mickey developed an appreciation of everything Magnus has to offer to its clients.  After class, we discussed many interesting topics over dinner at the excellent Maritana Restaurant, located in the fabulous Don CeSar, including the fact that all litigation involves risks.  Some of the risks associated with litigation are due to the unpredictable nature of human beings and the manner in which they make decisions.  Many people’s decisions are far from rational, including decisions made by juries.  For example, the average person’s inability to understand statistical data, scientific data, complex medical terminology, etc. makes it likely that, when faced with the daunting task of rendering a fair and impartial verdict, they will resort to judgments based on heuristics, biases, and cognitive distortions.  Therefore, one of the most important aspects of my job as a trial consultant is to help attorneys recognize the inherent biases and other non-legal factors that lead jurors to make decisions.  Attorneys often fail to understand that appealing to the jurors’ logic is futile, such that it is my job to assist my clients in appealing to other characteristics, such as emotions, a desire to belong, a desire to do the right thing, etc.  Professor Smiley correctly termed this type of consulting as helping lawyers “calculate risk.”  David is right; there is absolutely no downside of calculating risk.  The risks will be present but the savvy attorney will benefit from knowing how to mitigate them in advance of taking a case to trial.  Many thanks to the late Mickey Smiley for the education he provided to his students!

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