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Litigation Tips – 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 Litigation Tips – 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.

]]> Probing Questions and Difficult Answers https://magnusinsights.com/probing-questions-and-difficult-answers/ Tue, 23 Aug 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3226 I went to my primary care physician recently for my annual check up. (As an aside, my physician is smart: He has a Ph. D. in addition to an M. D.) My physician is committed to helping medical students with their education. He has mentored medical students from The University of Miami for decades and often involves them in my appointments. On this day, there was a particularly eager and earnest medical student who was helping my physician by asking some of the questions that are routinely part of medical examinations. The medical student asked me whether anything was bothering me, to which I replied that there are many things bothering me, none of which are medical in nature. (Word to the wise: Be careful what questions you ask a psychologist!) The medical student asked me if I take any drugs, prescription or non prescription, to which I replied, in a voice that sounded just like my mother, “No. I don’t even take an aspirin. I never have a headache or anything drugs would help.” He droned on and on with similar routine questions until he finally lost interest due to the fact that there was, apparently, nothing wrong with me. When he closed his notepad, signaling the end of his questioning, I informed him that, of all the questions he asked me, he forgot to ask a couple of important ones. He was quite taken aback, but he quickly recovered and asked, “What did I forget to ask you?” I told him that he should include in his pre-exam interview a few questions to determine whether the patient (female or male) is being victimized by physical abuse, sexual abuse, domestic abuse, sex trafficking, or anything similar that they might be reluctant to volunteer on their own. I told him it is his duty, in the interest of “doing no harm,” to ascertain things that are difficult to answer by asking probing questions, then paying attention to both verbal an nonverbal cues in an attempt to help his patients. Many times, a primary care physician is the first person to realize something is wrong with a patient that is an underlying cause of a medical problem. This young future physician thanked me profusely for contributing to his medical education. Lesson learned: Ask probing questions even when anticipating an answer that is difficult to provide. You might save someone’s life!

]]> What’s the Rush? https://magnusinsights.com/whats-the-rush/ Thu, 04 Aug 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3212 Lately, it seems that we have one rush job after another. On the one hand, I’m glad we have jobs of any sort, especially after the impact COVID-19 related chaos on the legal system, and as a result, our business. But, it is a frustration that never diminishes when clients wait to the last minute to hire us. We are near the end of the litigation food chain in the mind of many attorneys, especially those with little experience hiring trial consultants. (Attorneys who hire trial consultants often learn the benefits of not waiting to the last minute.) But, here I am again today, waiting to work out details with a new client who first contacted me 6 or 7 weeks ago. They have been generally non responsive since that time, when I sent a proposal. The clock has been ticking. The trial date is fixed, it is unchanged, yet time has elapsed. I know that the attorney is not fully in control of the ticking time clock, his/her client often delays the game significantly. But, our work takes time, rushing it is not optimal for anyone. Years ago, a client remarked after the research, “I wish you had made me do it sooner…” I have always wondered how to make a client do anything! Nonetheless, planning ahead in any business makes sense to me. There is a time to seek information, but there is a time to take action. The clock is ticking.

]]> Shortcuts https://magnusinsights.com/shortcuts/ Thu, 07 Jul 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3178 I recently read a newspaper article in a business/legal publication that prompted this post. The premise of the article was that women are more likely to be plaintiff prone on juries than men. Prominent and successful lawyers espoused their preference for having women on juries. A jury consultant (of whom I’ve never heard) reported research data to “prove” this point. While watching a mock jury deliberate recently, the most defense prone person on the panel was the youngest person, a 25-34 year old woman. She is tough, and, put another way, “very cheap.” She is a school teacher. Over the years, I’ve heard many lawyers, especially plaintiffs’ lawyers, say they never pick teachers for their juries. So, which is it? Juror #6 is not living up to the favorable plaintiff’s lawyer stereotype of women, but, she fits their stereotype of a teacher. Which stereotype to chose? NEITHER. It is not that simple. All women are not the same; all men are not the same. Even the reported jury consultant’s data demonstrated this to me. It stated that 53% of the time, women were more favorable for plaintiffs than men. That leaves 47% of the time when it wasn’t a woman who was favorable. A 6% difference means that, within the margin of error, even if the sample size was large, there were virtually no gender differences. Melissa has presented continuing legal education (CLE) programs to thousands of lawyers, most often, on the topic of jury selection. Countless times, the attorneys have asked questions seeking a shortcut, a magic bullet, or another easy way to decide who to reject on a jury panel. The message of this post is: get over it. Looking for the simple shortcut is a sure way to short change your client by not making optimal jury selection decisions.

]]> The Problem With This Case is the Client. https://magnusinsights.com/the-problem-with-this-case-is-the-client/ Thu, 26 May 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3135 An attorney client of ours recently told Melissa that his client is a problem. He said, “the problem with this case is my client.” He was pretty direct, but we’ve heard this, or some variation thereof, countless times. In this case, the client is wealthy (and accustomed to getting his way as a result). He’s “cocky” arrogant, and dismissive of other people’s opinions. He isn’t well educated, meaning he doesn’t know what he doesn’t know and, rather than trying to learn from those who can educate him about the legal issues he is facing, his insecurities lead him to trying to prove himself to hide his ignorance. The attorney does not think his client, our ultimate client, makes a good impression because of these factors, and because he is dismissive and rude. In other words, he is his own worst enemy. And, he’s the one on the spot, in the hot seat! This can be a recipe for disaster. We’ve seen this many times. Not necessarily with these particular variables, but in some way, shape or form, the client can be more challenging to manage than the facts of the case. We’ve had highly emotional and upset end clients. We’ve had angry, argumentative end clients, one or two who were prone to physically abuse their own attorney. These have been plaintiffs and defendants; “bad clients” are not limited to one side of the case. Some of these clients are tamed after the reality check of research. Others can be improved by Magnus conducted witness prep. Other times, it is a matter of just holding on for the ride and doing the best one can!

]]> 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!

]]> Calculated Risk https://magnusinsights.com/calculated-risk/ Thu, 03 Feb 2022 18:00:00 +0000 https://magnus.lisawhitsell.com/?p=3047 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.

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