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Trial Consulting – 2's Company – MagnusInsights.com https://magnusinsights.com Wed, 21 Sep 2022 16:45:17 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://magnusinsights.com/wp-content/uploads/cropped-2sCompanyLogov23-32x32.jpg Trial Consulting – 2's Company – MagnusInsights.com https://magnusinsights.com 32 32 Dress for the Interview https://magnusinsights.com/dress-for-the-interview/ Thu, 22 Sep 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3275 Job interviews are something with which Melissa and I have had considerable experience over the last 30 years. We’ve revised our procedures over time, but we have always utilized an in-person interview as a final part of the process. Regardless of the position for which we are interviewing, we, as a professional practice serving a discriminating client base, have certain expectations. First and foremost, applicants should dress for the job they are seeking. In a professional environment, this means suits/jackets, ties, nice pants and shoes, etc. We’ve had some surprises over the years in which the first impressions were all we needed to know that the individual in question was not situationally aware enough to be hired, or worse, to work with the types of clients we have as trial consultants. There was the young woman, recently graduated with a master’s degree, who flew into town, at our expense, who showed up without her suit jacket “because it was too hot.” We’re in Florida, she was from Texas; heat is normal. Perhaps if she had not made it a point to tell us that she did not wear a jacket because of the heat, we would have thought she intended the no jacket look (though her outfit really called for the jacket). Then there was the guy who was so disheveled that he arrived with his dress shirt ½ way untucked and never realized it. The pièce de ré·sis·tance was the recent applicant for research technician who showed up in a polo shirt and…shorts. He blew his chance at a job by dressing so casually, not even “business casual” – but shorts! Again, because it was hot. First impressions are critical. Having the right look is important. Dressing in the right “costume” for the job is something that should be easy to comprehend. It is hard to overdress for a professional interview. Failing to do so speaks volumes about the applicant’s potential.

]]> 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.

]]> 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.

]]> Share The Positives https://magnusinsights.com/share-the-positives/ Thu, 21 Jul 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3208 I observed Melissa do something today that is worth comment. She complimented our clients for the professional and supportive ways they have worked with us, and as a team, to prepare for a jury research project. The clients seemed taken aback to hear a compliment, and they were surprised their behavior was noteworthy. It is just how they operate, but we recognize it as an indication of more professionalism than we sometimes observe. We had another example recently when the clients were particularly good in preparing for research. The clients’ behaviors are not the focus of this post, however; the focus is on giving positive feedback. In today’s world, there seems a much greater tendency to bring out the negatives. Fussing about bad service, fussing about uncontrollable frustrations, complaining, whether warranted or not. Maybe for the sake of good karma, pointing out the good is important. We tip based on good service, so maybe the server knows the customer was satisfied, actually happy. But, unless we take the next step and tell someone they did a good job, the satisfaction is not really communicated. Better yet, telling the supervisor of the person providing good service makes a difference and rewards, at least intrinsically, the person making the effort to do a good job. It takes a little effort to pass along a positive, but it is something I try to do whenever possible. It helps me remember the positives in a world full of challenges.

]]> Fronting Money for Clients https://magnusinsights.com/fronting-money-for-clients/ Thu, 14 Jul 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3180 One thing we learned the hard way, many years ago, is that advancing money on behalf a client is risky. On one of our first cases, we were given the verbal go ahead by an associate level attorney whose boss had told him to do so. We were very excited to work with this attorney, whom we had known for about 2 years. He was an interesting guy, a successful plaintiff’s lawyer, and we’d talked directly with him about the case. I wrote a check to our jury recruiter, advancing the up front cost to the recruiter on behalf of the client. I had no reason to doubt that this was “a go” until a few days later, when he said he never approved, wasn’t going to proceed, and too bad for us. We never heard from him again. I was out the money, but lesson learned. As a result of that incident, we’ve insisted on an up front retainer and signed agreement from all clients. It was not that we make all our decisions on the basis of one experience. There were others where clients were slow to pay. With costs outstanding, it is hard to be the bank for the client. I know plaintiff’s attorneys typically advance costs for their clients, but our fees are much smaller than theirs. And, while we know defense clients, such as insurance companies, will pay, the question becomes when. We have little leverage in the scheme of things except to request up front payments and getting paid prior to our research or consultation. Within the last week I’ve been dealing with a client whose payment was needed faster than their payment system typically allowed. They were transparent and helpful in the process, but they were unable to do a wire transfer or ACH payment to expedite the payment. An overnighted check was fine with me, but by the time they were able to get the check written, another day had passed. Then there was a holiday. We would have lost 4 or 5 days of mock jury recruiting time had we not decided to front the recruiting fee. Then there was the substantial research facility commitment. All of which meant that I had spent thousands of Magnus’ dollars on behalf of a multi-million dollar company. These are the types of things that cause stress, sweat and lost sleep. Fortunately, we’ve had a happy ending. The check arrived the day after the holiday and we are on track to do the project. But nothing is simple; it is always something when one operates a small business.

]]> 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.

]]> 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!

]]> Run of the House https://magnusinsights.com/run-of-the-house/ Thu, 30 Jun 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3176 I booked a hotel room recently and, while navigating the rates, I came across one that said “run of house.” I know this means “you get what we’ve got left.” It is doubtful that this would ever be an exciting upgrade, but maybe. In my experience, upgrades rarely happen even when I’m paying higher rates. I saw this kind of phenomenon recently when booking a rental car. Avis had an exorbitant rate on a “mystery car” for an Alaska trip we are planning. Run of house or mystery car, I’m usually unwilling to gamble on things like that. When pondering the hotel rate though, it reminded me of something we’ve heard from clients who tell us they like working with us because they know who they are going to work with – Melissa primarily, and me. We have had times in our business when we had other consultants to assign to certain cases. But, we always disclosed the details about the other, well qualified, consultants in advance. To my surprise, some clients have reported not knowing who they would be working with at competitors’ companies until that person showed up on the research day, or in court. That kind of run of house was a major turnoff to these clients. As a boutique operation, our clients don’t face the uncertainty of run of the house, or mystery consultants!

]]> Modern Communications https://magnusinsights.com/modern-communications/ Thu, 23 Jun 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3174 Writing this post in mid 2022, I want to comment on modern communications technologies. Especially due to the pandemic, the “modern” technologies of cellular telephones and virtual meetings (Zoom, etc.) have become more common in the world of business. This is for better or worse, depending on point of view. These technologies are great because they free us from the constraints of the office walls. They allow remote working (and sometime remote playing). But, with all things, there are limitations. I, personally, find it frustrating when I am talking on a cell phone and having a bad connection. I dislike having to “work” to get through a telephone call when hearing the other party is difficult. Parties often spend time trying to find a better location with more “bars.” The conversation gets hijacked by technical difficulties and subverts the real purpose of the call. Similarly, video calls frequently suffer from technical glitches. When the communications become like walkie-talkies “simplex,” instead of duplex discussions, it is a problem. I mention this because I think it is important to be cognizant of such things. Making the other party work to hear you is inconsiderate. Sometimes it is unavoidable when on the move, but if this is a repetitive problem, especially when regularly working remotely, it is time to do something. Solutions include slowing down the conversation and listening carefully to be sure the other party’s words are clear. Beyond that, consider improving wi-fi connections or using a traditional phone, even VOIP. The negative impressions created when these problems occur are far worse than spending the money to communicate clearly. Most of the time, the subject matter I’m discussing is difficult enough without technology making it more so and I try to be aware of impressions of this sort and how clients or prospects will react to communications.

]]> Don’t Sweat the Small Stuff https://magnusinsights.com/dont-sweat-the-small-stuff/ Thu, 16 Jun 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3149 “Don’t Sweat the Small Stuff” is a phrase used to suggest one should relax, chill out, and not worry about the little things, things which sometime seem out of one’s control. Well, that’s great. But, our “day job” as trial consultants doesn’t allow it. Neither does my prior advocation, photography. For example, when photographing people at events, the photographer has to watch the person’s expression; if it is a group of people, it is even more challenging. The photographer has to look at the eyes, the smiles, the hands, feet, etc. Ensuring things are in focus and that there are no distracting details in the background, or foreground, are all a part of capturing an image for a professional photographer. In our work as trial consultants, we have to watch the small details. Are the lunches ready? Did the catering folks get the order right according to the banquet event order – the contract? Where are the chips and the condiments? Are all the cables connected for the video cameras to record the session? Is everything working? Have all the cables been taped down to prevent tripping? Are the notepads on the tables? How about pens for everyone to take notes? Is the A/V working to project PowerPoint or similar images? Are the mock jurors arriving on time? Do we need to call the recruiter to track down late arrivals? What time is dinner to be served? There are seemingly an endless number of variables, small stuff, that go into a mock trial. We’ve done these long enough to have our own, well refined, protocols, but it involves sweating the small stuff. I often sweat the arrival of the first quorum of jurors. We recruit extras, but until we have the required 6 or 12, I’m nervous. Sweating the small stuff is, in my opinion, something we have to do to ensure clients are satisfied that we’ve done everything we can to make their days a success and that they are getting what they pay for when hiring Magnus (and we don’t work cheap). And, ultimately I believe that is why clients so often compliment us on the research days.

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