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Jury Deliberations – 2's Company – MagnusInsights.com https://magnusinsights.com Mon, 29 Aug 2022 13:50:00 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://magnusinsights.com/wp-content/uploads/cropped-2sCompanyLogov23-32x32.jpg Jury Deliberations – 2's Company – MagnusInsights.com https://magnusinsights.com 32 32 Not Everyone in Purple Thinks the Same Way https://magnusinsights.com/not-everyone-in-purple-thinks-the-same-way/ Thu, 25 Aug 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3229 Maybe it wasn’t really purple, more like lavender. The polo style shirts by 2 male senior citizens on one of our mock jury panels were very similar. I wasn’t present to witness the events first hand, but I have seen the video of the deliberations many times. The venue was a community where many senior citizens have retired. Despite their mutual appreciation of lavender, these 2 gents nearly came to blows with one of the two mock jurors aggressively castigating the other mock juror in offensive terms. Melissa and our research assistant had to intervene to cool the situation down and remind everyone of the need for civility. The situation did not deteriorate further, fortunately. And, the mock jury group was able to reach a decision that allowed us, and our clients, to learn from the session. The lessons of the day were beyond the case specific results. An important lesson, or hopefully a reminder, was that just because there are outward appearing similarities in people, each person is an individual. Assuming otherwise is dangerous. One of these men in lavender was very conservative, a defense oriented juror. The other man was much more plaintiff oriented. While other things were known about the two individuals, we’ve long reflected on how dramatic their differences were. They were both “old white men” wearing lavender/purple. But that was it. The experience now serves as a reminder that what you can see on the outside is not indicative of what is on the inside, in the minds and hearts of potential jurors. This event became a lesson used in one of Magnus’/Melissa’s Continuing Legal Education (CLE) programs, “Jurors say the Darndest Things.” In addition to occasional live presentations, the CLE program is available at www.magnusce.com.

]]> Lessons Learned the Hard Way https://magnusinsights.com/lessons-learned-the-hard-way/ Tue, 05 Jul 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3169 I make mistakes, a lot of them. A few minutes ago, David pointed out my most recent mistake, for which I apologized. I almost always take responsibility for my mistakes and I try to correct them when it is possible to do so. Fortunately, none of my mistakes have resulted in seriously negative outcomes for someone, including me. Furthermore, unlike some people, I usually learn from my mistakes, such that I avoid making the same mistake twice. Nevertheless, some of the lessons I have learned during my over 3 decades of working as a trial consultant have been learned “the hard way.” After learning a particularly painful lesson, I am disinclined to do anything that will cause a similar problem. Lessons I have learned from clients, including Magnus’ clients and clients of 2 former employers in the trial consulting business, are:

(1) Talk to the boss. As I have mentioned in the past, I learned, early in my career, that it does not matter what the paralegal says. It does not matter what the associate attorney says. It does not matter what the “second chair” on the case says. I take my marching orders from the boss, that is, the lead trial counsel in the case. Everyone else will be treated with kindness and respect, but in the end, all of us on the trial team must realize that our work is directed by 1 person, the boss. For this reason, I always insist on talking to the boss prior to working on any client’s case.
(2) When there are 2 or more attorneys involved in presenting a case at a mock trial, talk with both of them at the same time, either in person or on the telephone. I learned, painfully, that failing to speak with both or all attorneys, so that everyone can receive the same instructions, is a requirement in every case. If I speak with 1 attorney at a time, then he/she might think I am saying something to the other attorney(s) that is incorrect, or that I am withholding information provided to the other attorney(s), or worse. I have been wrongly accused of misdeeds by attorneys who “threw me under the bus” in an effort to cover up their incompetence. Never again!
(3) When dealing with the super sized ego of an attorney who perceives himself/herself as the GOAT (Greatest Of All Time) among trial lawyers, it is often necessary for me to provide advice or counseling privately, so that the ever present minions do not witness any imperfections on the part of their boss. When I am tasked with improving the trial outcome for a high profile attorney, he (so far, there have not been any women lawyers who fit this profile) must never be embarrassed in front of his adoring staff. If I ever make this mistake, I will pay for it by losing a client, forever. (I almost made this mistake once, by failing to realize there were 2 GOATs who were co-counsel on a case, but luckily for me, one of my employees alerted me about who was who.)
(4) When asked for my opinion about my client’s case, tell the truth, as nicely as possible. Only once has this resulted in the permanent loss of a client, because I answered his questions by telling him things he did not want to hear, however, I will never lie to a client, regardless of how painful the truth is.
(5) If problems are occurring between a member of the Magnus team and a client, always document everything in writing. This way, there is no “he said, she said” when the problems worsen. Fortunately, this is a rarity at Magnus. Nonetheless, when it comes to things like “the check is in the mail,” I am unable to proceed until the check in the mail is finally delivered.

Overall, while these examples are of events that have occurred, they are infrequent, but painful, reminders of the difficulty in meeting every client’s expectations, 100% of the time. Here’s hoping the mistake I made today will be the worst thing that happens today. If so, it will be a pretty good day!

]]> Are They Paying Attention? https://magnusinsights.com/are-they-paying-attention/ Thu, 09 Jun 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3146 My post about whether the mock jurors take it seriously reminded me of another aspect of this client related surprise. Watching a group of people, mock jurors, listen to the case arguments in a mock trial can sometimes be misleading. Some mock jurors are clearly engaged, others have their eyes closed, others are frantically taking notes, some are squinting (perhaps because they forgot their glasses), and others are making eye contact with the attorneys, even smiling at them. All of these visual cues are subject to being misread. Often, attorneys come into the observation room and comment on their perceptions of the jurors. “That one was sleeping” “That one likes me/us.” “That one wrote down everything.” Those perception bubbles are often popped like a balloon as soon as deliberations begin. I smile to myself when the person who appeared to be sleeping seems to remember every detail of the case. The one who was smiling was smiling while apparently thinking “Wait until I can tell you what I think about your terrible client.” The body language and visual cues are easy to misinterpret, especially when the attorney is engaging in the difficult task of making a case argument. One of the valuable lessons in conducting mock jury research is that things and people are not always as they may seem. People also have different agendas. People have different learning styles. The guy with eyes closed may not be visual. Perhaps the visuals, if any, were not helping. Perhaps the subject matter was not engaging. (Some of the arguments I’ve heard would put an insomniac to sleep!) A good reason to conduct mock jury research is figuring out how to keep the audience, the jury, engaged. We have had attorneys “go off” on their staff, showing their true colors, when setting up the presentation and in front of the mock jurors, or in court, the venire. The smiling, back stabbing, juror may have been offended by something observed during the arguments, before/after the presentation, or by some other unrelated perception. Back to the topic title, “Are they paying attention?” Yes! And, one should assume they are paying attention to everything, even the unintended messages. And, be careful when interpreting non-verbal cues. “Reading” the jurors is best left to the professionals.

]]> Do They Always Take it Seriously? https://magnusinsights.com/do-they-always-take-it-seriously/ Thu, 02 Jun 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3144 A client, who had never observed a Magnus mock trial, asked the question which is the title of this post during a recent mock trial. The “they” is the mock jurors. The “it” is the case. The answer is YES! The rest of the story is that, despite the mock jurors knowing they are only to be present for a limited period of time, they “get into it.” They are told they are discussing an actual, active, case (for ethical reasons, we tell them the truth). Magnus’ jurors are randomly recruited for our mock juries and focus groups; they do not know each other. They are screened to eliminate those who would be obvious challenges for cause at the actual trial. When it comes time to deliberate, their personalities come out. They engage with each other in the ways I am sure they do in every interpersonal encounter they have in life. They are themselves, and inevitably, some will agree with each other and some will not. They negotiate, they bargain, they stick to their positions (resulting in non-unanimous verdicts) and often, they compromise. Their deliberations usually involve surprisingly heated discussions. Sometimes, the discussions are hotter than one might imagine; voices get loud and interpersonal attacks occur. Though the subject matter may seem mundane (some cases are more dramatic than others), the opinionated back and forth discussions always occur. It is perhaps an artifact of conducting mock jury research that this occurs because mock juries are only held on contested cases, not “slam dunks.” We don’t get hired if the facts are one sided. More than once we’ve found it necessary to intervene to cool down the participants to avoid the situation escalating to physical confrontations. The bottom line answer to the recent client’s question is ABSOLUTELY. He saw it himself, and while surprised, he was glad to see it. This validated the research process in a way he never imagined.

]]> Commercial Litigation: Benefits of a Trial Consultant, Part 3 https://magnusinsights.com/commercial-litigation-benefits-of-a-trial-consultant-part-3/ Thu, 12 May 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3128 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.

]]> Commercial Litigation: Benefits of a Trial Consultant, Part 2 https://magnusinsights.com/commercial-litigation-benefits-of-a-trial-consultant-part-2/ Thu, 05 May 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3125 This is part 2 of the benefits of a jury or trial consultant in commercial litigation. As noted in the prior post, in commercial litigation, high powered people are often involved. We have been involved in many cases in which these parties were “out for blood.” Even though the cases were “only about money,” the litigation became personal. These parties wanted their “pound of flesh.” Commercial litigation can get ugly. The perspectives of the parties are often skewed by these factors. The longer the litigation takes, the “hotter” some of these people become because they want their day in court to prove their case. They want to have others confirm they were in the right. Many times in these scenarios, the lawyers have been unable to get the client to comprehend that not everyone will see things the way they, the client, does. In these situations, mock trials and focus groups help clients see (literally) what “real people” think about the case issues, and about them. At times, this is a painful lesson, one that the client may still want to debate. More often, when the sting fades, the client realizes that this “day in (mock) court” may not have worked out as they thought and as a result, they become more willing to listen to the attorney’s advice and direction for the case. Whether the trial verdict will be rendered by a jury or a judge (the latter in the event of a bench trial), hearing the decision makers’ decision process provides a reality check, which is something we’ve previously explained (https://magnus.lisawhitsell.com/2016/10/reality-check-plaintiff/ and https://magnus.lisawhitsell.com/2016/10/reality-check-defendant/). A reality check is always valuable to litigants who need to be able to see their case through the eyes of others in order to comprehend the challenges of the litigation. This is often impossible to communicate to litigants absent letting them see and hear it for themselves. Managing client expectations is often much easier to do with the results of trial outcome research in hand.

]]> Commercial Litigation: Benefits of a Trial Consultant, Part 1 https://magnusinsights.com/commercial-litigation-benefits-of-a-trial-consultant-part-1/ Thu, 28 Apr 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3123 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.

]]> False Positives https://magnusinsights.com/false-positives/ Thu, 07 Apr 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3099 False positives are research or test results that are inaccurate and make one think the result is positive, when in fact, it is negative. With a medical test, for example, it could mean a blood test result indicates a problem when there isn’t one. There are, of course, false negatives, but I think in the context of trial consulting, our concern is more often about false positive. That is, we are concerned about getting mock jury results that make our client’s case look better than it is. We strive to ensure that our results are objective and we fear giving clients false hope for the outcome of their case. Therefore, it is better to test worst case scenarios and for the client to lose the mock trial, than to have them win in the mock courtroom, only to lose at the real trial. We have discussed one of the primary culprits of this issue in another post, but it bears repeating. The most frequent factor that leads to a “false reading” is when the person role playing the opposing side of a case is not up to the task. Or, they ignore critical issues when making the argument. Or, they don’t want to make their real client look bad. There is no good reason to want to win the mock trial at the expense of facing reality. The second most frequent factor is when our clients do not tell us the whole story, that is, the worst case story, in advance of the mock trial, intentionally or not. We have had clients who failed to reveal details that are critical to the jurors’ decisions. In one of these situations which I remember 20+ years later, the attorneys on the case had not been thorough in their review of medical records and simply, but grossly, missed something that was there to be seen. Luckily, someone on our research team read the records more carefully and when they asked the client about the point, there was a moment of pause, of silence, while they contemplated the point, and then realized how much it changed their position. (The case settled very soon thereafter.) A mock jury project is an opportunity to “fix” or smooth out a problem. It is not an opportunity to gloss over that problem and pat oneself on the back!

]]> COVID-19 Jury Composition Conjecture https://magnusinsights.com/covid-19-jury-composition-conjecture/ Thu, 13 Jan 2022 18:00:00 +0000 https://magnus.lisawhitsell.com/?p=3020 As trial consultants we try to stay current by reading lots of newspapers, journals, and magazines. Recently, I’ve noticed people writing about the composition of juries post COVID-19 (not that COVID-19 is over, “post” in this context merely indicates a world where COVID-19 came into being). Because of the politicization of COVID-19, vaccines, masks, etc., and because of the CDC guidelines, courthouse closures, the world of jury trials has been shaken. The practice of law has changed in many ways, some permanently. The willingness of ordinary citizens who are called for jury duty has been impacted as well. People who are extremely fearful of being in public due to concerns about COVID-19 are not showing up when they are summoned for jury duty. The next level of people may be less fearful and are showing up along with those who are on a continuum ranging from that point on the scare to the “right” all the way to COVID-19 deniers who are happy to show up. This is where the conjecture begins. One article I read recently was about how the more extreme “right wing” jurors who are willing to show up for trials are bad for criminal defendants. The writer stated that the jurors willing to go to a courthouse are more conservative and are prosecution prone. In the civil context, where we do most of our work, plaintiffs’ lawyers are concerned about this phenomenon as well, that is, that conservative individuals are more likely to be jurors than more liberal ones, and that the jury verdicts will be more defense prone. But, here’s another twist, since the resumption of jury trials, there have been many record plaintiffs’ verdicts. Verdicts that surpass prior records and lawyer expectations are making the news weekly. Clients have relayed these concerns and some insurance adjusters are “quaking in their boots” about the potential of huge verdicts. So, how does one reconcile these seemingly opposing perspectives? My take on it is that this merely points out the need to be prepared for any significant case, especially as to trial strategies. Perhaps the thing that COVID-19 laid bare was the realization that the world is changing, or has changed, over many years, and it is catching up with lawyers and insurance carriers or other clients. To me, this reinforces the need to conduct mock trials or similar research to get a pulse on what is going on in a community with a certain fact pattern and specific clients. Trying cases based on a pulse rate from years past is not enough. Guessing about the impact of COVID-19 and all of the related hardships and changes it brought to us all is not a smart way to prepare a case. More than ever, it is critical to successfully resolving a case, to get to know what decision makers in a community are thinking in relation to one’s case, civil or criminal. Conjecture is not enough.

]]> It’s a Big Job! https://magnusinsights.com/its-a-big-job/ Thu, 07 Oct 2021 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=2930 Melissa and I have mentioned we are undergoing a big home improvement project this year. It is not one we wanted to undertake: a new roof! We first heard “It’s a big job” when securing bids for the roof project. “It’s a big roof, it’s a big job….” Well, yes it is. Isn’t that great? It should mean more work for you, more money for you, the contractor. But more than one roofer opted out of our “big job.” They couldn’t figure out how to manage it. As the work progressed, we’ve had to engage a few contractors for related work. One of the more recent ones was a gutter contractor who we interviewed to replace the gutters torn off the house along with the old roof. He met Melissa early one Saturday morning and quickly said “It’s a big job” and turned down the work. This has amazed me. When we at Magnus get a big job, it’s a great day! We are excited. We figure out how to get it done. That may take considerable time, but we find a way. This is how we grow our expertise. This is how we help our lawyer clients help their clients achieve the best possible outcome. Melissa and I have spent considerable time and effort in maintaining a professional network which we can tap as needed. This is one of the ways we handle the big jobs. Overseeing large projects can be challenging, and exhausting, but they are also rewarding. Big jobs. Bring ‘em on.

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