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Trial Science – 2's Company – MagnusInsights.com https://magnusinsights.com Thu, 21 Jun 2018 20:14:45 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://magnusinsights.com/wp-content/uploads/cropped-2sCompanyLogov23-32x32.jpg Trial Science – 2's Company – MagnusInsights.com https://magnusinsights.com 32 32 Trial Consulting and “The Simpsons” https://magnusinsights.com/trial-consulting-and-the-simpsons/ Tue, 31 Jul 2018 14:00:55 +0000 https://magnus.lisawhitsell.com/?p=1794 The reader may wonder, based on the title of this post, what is the connection between trial consulting and “The Simpsons.” No, trial consulting is not cartoonish, it is not usually funny, and our clients don’t say “D’oh!” like Homer Simpson when they are annoyed. The connection is merely time based and personal. I began my career as a trial consultant working for Litigation Sciences, Inc. (LSI) in August of 1989. “The Simpsons,” after appearing as a short feature on “The Tracey Ullman Show” for several years, debuted as a prime time sitcom on December 17, 1989. Since then, “The Simpsons” has been my favorite television show, much to the surprise of almost everyone who doesn’t know me well. Although Homer and Marge Simpson are fictional, and perpetually 39 years old, the three of us have a lot in common! Their zany adventures and hilarious adventures remind me of those in which my friends and I have participated. Then, there is Lisa Simpson, the nerdy musician who is tolerated, more or less, by her more worldly older brother. A familiar theme in my life, even though I have two older brothers who do their best to tolerate me! When I began my long career as a trial consultant, I had no idea where I would go, what I would do, who I would meet, or whether I would succeed, but, just like Homer, Marge, Bart, Lisa, Maggie, and the rest of the fictional cast of TV’s longest running show (having surpassed the 635 episodes of “Gunsmoke” recently), here I am, almost 30 years later, still working and enjoying working as much as ever. It is sometimes said that nothing lasts forever, but for as long as my career as a social psychologist who works as a trial consultant lasts, I am committed to providing high quality work to Magnus’ clients. It is impossible to know what the future holds, but “The Simpsons” and I must be doing something right; we have succeeded when many others have failed. Stay tuned for more episodes!

]]> It doesn’t cost, it pays. https://magnusinsights.com/it-doesnt-cost-it-pays/ Thu, 03 Aug 2017 14:00:11 +0000 https://magnus.lisawhitsell.com/?p=1419 I was speaking with someone recently who was lamenting about how cost is a factor in decisions, sometimes, with a penny wise and dollar (pound) foolish approach. This person quickly related a story about when he was buying a piece of equipment for his office and asked what it cost. The astute salesperson said, “it doesn’t cost, it pays…” I like that! (And, I told my new acquaintance that I was going to appropriate it for this post.) That is exactly the message I try to share with prospective clients. The cost of mock jury research (or whatever we are being asked to do on a case) should not merely be seen as a cost; rather, it should be seen as an investment. It is an investment in a better, more certain outcome. It is an investment in information to facilitate better decisions about whether to settle or try a case. It is an investment in the witness to ensure that she/he can tell her/his story in the most compelling manner. The problem, however, is that it is usually impossible to quantify this investment. We certainly have anecdotal examples of this, for example, when a plaintiff’s demand was $2 million, and our clients, the attorney and the insurance adjuster, disagreed on the likely outcome. After the mock juries (several) rendered their verdicts, it was obvious that the adjuster had undervalued the case, badly. The mock jurors found liability and awarded significant damages. Settlement occurred soon thereafter and later, the attorney and I discussed the situation. He related that the adjuster calculated the cost of settling the claim and realized that, because of what was learned, it settled for less than had been demanded, and further, that the cost of hiring us, while not insignificant, actually saved the insurance company considerable dollars in trial costs alone. Nevermind the possibility of a higher verdict, the investment paid off on just the trial costs. The insurance adjuster and his company would not have settled the claim absent the research, so it was true that it didn’t cost, it paid! This message is harder for some people to understand than others, but it recurs frequently, thus, we keep trying to spread the word.

]]> Ready for War https://magnusinsights.com/ready-for-war/ Thu, 29 Jun 2017 14:00:03 +0000 https://magnus.lisawhitsell.com/?p=1392 In the first few months of this year I have received several calls from attorneys looking to engage a trial consultant in what I consider to be ridiculously short time periods. Two cases will illustrate my point. First was a call from an associate attorney at one of the largest law firms in the state who was defending a significant and complex commercial case. The call came less than a month before trial and at a time the trial team was so slammed with last minute depositions and hearings that they really did not have time to conduct mock jury research. And, another call was from an associate at a plaintiffs’ law firm about a medical malpractice case involving catastrophic birth injuries including brain damage. That attorney was specific for the need to do the research on a specific day (and, as has been reported in another post – asking that many other shortcuts be taken as to venue and more). That specific day was about a week from the time of his call to me, and though he did not tell me on the first call, that day was 3 days prior to trial. All of which means, on a potentially multi-million dollar case, the first call to a trial consultant was 10 days prior to trial. In both of these cases I got the impression that the attorneys expected their cases to settle, and that never thought there would be a need to go to trial – or hire a trial consultant. We have written in other posts and places about this phenomenon of a disconnect in the preparation of cases by some attorneys and a lack of experience that is hurting their ability to fully represent the client to achieve the best outcome. Perhaps when it is the defendant or a commercial plaintiff, the end client has been unwilling to permit the use of a trial consultant; sometimes this is the case. And, we have had calls, usually with a little more of a window of time, in which we have been called late and were able to put the research together. But, these 2 examples were the worse of recent late calls. With this background, I’ve been struck by the chorus of the song Ready for War (Pray for Peace), released in late 2016 by the band Adelitas Way, which repeats the line “I pray for peace but I’m ready for war.” While clearly written in another context, this line says much about the scenario I’ve just described. Just as armies train constantly, make sure their weapons are ready, and that ammunition is stockpiled to be sure any negotiations for peace (settlements) are done from a position of strength, so do our knowledgeable and experienced clients prepare for trials (wars). Being prepared and not needing all of the “ammunition” one stockpiled is much less harmful to clients than not being ready to do battle in trial if all else fails. Are you ready for war? If not, call us – sooner rather than later. As the Boy Scouts say “Be prepared.”

]]> Judges are People Too https://magnusinsights.com/judges-are-people-too/ Thu, 22 Jun 2017 14:00:31 +0000 https://magnus.lisawhitsell.com/?p=1372 We recently wrote that lawyers are people too. It has been interesting for me to watch client reactions when Melissa occasionally finds herself needing to remind the attorney/clients that judges are people also. Once an attorney becomes a judge, and puts on the black (usually) robe, a new relationship develops between their former colleagues and them. Some of this is a matter of position power, some of it is to avoid conflicts of interest. Some new judges may let their power go to their head, but some of this is an artificially created perspective, which is the reason Melissa has to remind them. It is probably different in smaller cities and towns where the judges and lawyers socialize because they know each other well. The separation is more obvious in larger venues where the opportunities for socialization are more limited to official events which are “neutral” playing fields – like Bar functions. But, one point not to overlook is that judges are people too in terms of how to try a case in front of them. Yes, they are almost always formerly lawyers and yes, they usually know the law. But, it is sometimes foreign to lawyers that judges, just like jurors, need to be kept “entertained” when presenting a case. Showing, as well as telling, the judge about the case works better than treating a bench trial or hearing as a dry, bland, academic exercise. It is important, of course, to take a judge’s style into account, but while knowing there are limits to the “entertainment” aspects of a presentation, clearly, using trial tools and presentation aids help bring the abstract, sometimes boring, case details to life and make them more relevant – even to the judge.

]]> Won some should have lost; lost some should have won https://magnusinsights.com/won-some-should-have-lost-lost-some-should-have-won/ Thu, 20 Apr 2017 14:00:40 +0000 https://magnus.lisawhitsell.com/?p=1317 In writing about the window of opportunity for trial consulting, I reflected on who are our “best” clients, and why.  Our best clients are the attorneys who “get it” – who understand what we do, what goes into it, and what they will get out of it.  But, how do they know these things?  They have done it before – they took the first step and hired a trial consultant, hopefully us, for the first time.  But, why did they do that?  Many of them have reported to us that they had previously been surprised by a jury trial result.  They won a case they expected to lose, or more commonly, they lost a case they should have won.  They contact Magnus because they never want to have that happen again, if there is a way to avoid it.  So, while not foolproof, they conduct mock jury research.  Over and over again, mock jury results are often not what the attorney or their client expected in some way.  Things may be better or worse, or maybe they will confirm perceptions, but mostly, the results point to details which need more or less emphasis, or different information.  But, I digress.  The point of this post is that the best clients know they don’t know it all, and they know it is a mistake to pretend they do.  As a result, our clients tend not to be young, or new attorneys, who, even if they have a case warranting jury research, perhaps have not learned this hard lesson.

]]> Window of Opportunity for Trial Consulting Work https://magnusinsights.com/window-of-opportunity-for-trial-consulting-work/ Thu, 13 Apr 2017 14:00:09 +0000 https://magnus.lisawhitsell.com/?p=1314 Recently I’ve received calls from attorneys who wanted mock jury research on their cases, but the calls have come so late that I have been reflecting on when the window of opportunity is open for mock jury research. I have mentioned this issue in other posts, but because I’m noticing this recent spate of last minute calls, I thought it deserved more discussion. The truth is, to some degree, as long as the case has not started trial, there MAY be some value to even last minute work. I say “MAY” because, when the call is a week or so before trial, the practicalities of conducting research are perhaps, impossible. It is certainly impossible to “do it right.” This is because of the lead time to set up the research, recruit the participant mock jurors, write surveys, etc. This lead time takes 2 to 4 weeks, at a minimum, even without looming trial dates. Then there is the research day. For social scientists, including those working as trial consultants, this day is not the end of the process, it is closer to the beginning. I think many clients see it as the end, but it is far from the end. When the research day ends, our real work begins. The data have to be analyzed, including conducting whatever of statistical analyses are possible with small group research. We write reports both of what happened at the research, but more importantly, what can we recommend to “fix” the problems and improve the outcome. This process takes us another 2 to 3 weeks. So, from the first call to the conference after the report is written, usually, 6 to 10 weeks have elapsed. And then, for our clients, the work continues in that the recommendations are like homework for them – we send them in many directions to get more information to use to share with jurors when the real trial begins. I once had a client say, post report, “you should have made me do this sooner” – because he finally realized what he would learn, and what that learning would require him to do. When we’re called very close trial, we offer as much help as possible, but the point of this post is to explain that waiting until all else has failed may be too late. This is the trend that I’m observing; that is, rather than engaging the trial consultant, and working through the case early, some clients seem to be waiting until they know they will be forced to try the case. These clients are most often those with less trial experience, and certainly those with little experience working with trial consultants. They don’t know what they don’t know and probably their clients don’t either. Their ignorance shows, and it most likely hurts them, and their clients. The truth is, the window of opportunity for engaging the trial consultant can start before the case is filed. It is certainly wide open during discovery, prior to mediation, and months before a trial or arbitration. Getting your trial consultant ready, on standby at least, is certainly one way to get the best result for the client. Waiting until the window slams on one’s fingers is not advisable.

]]> How NOT to do mock jury research! https://magnusinsights.com/how-not-to-do-mock-jury-research/ Thu, 06 Apr 2017 14:00:52 +0000 https://magnus.lisawhitsell.com/?p=1296 I recently had a telephone call from a prospective client who wanted help with a case going to trial within 2 weeks of his call. It was a big case and he asked that we conduct mock trial research on a specific Saturday (which was 10 days after the call), in our home venue (despite the fact the actual trial was on the opposite coast of Florida), and told he me he only wanted 1 focus group panel. (Initially, he did not tell me trial was set for 2 weeks later, but that came out when we tried to work out a reasonable timetable for the research.) As it turned out, we did what we rarely do; we turned down the case. The attorney was breaking too many “rules” about conducing jury research. There really aren’t rules, per se, but he was asking for things to be done in several “wrong” ways, in our opinion. I’ll elaborate. Doing research 2 to 3 weeks prior to trial on a big, complicated, medical malpractice case is not a good idea. First of all, it takes time to set up research, to book the facility, to review the documents, and to recruit the mock jurors. When a case is complicated, that takes a bit more time. It also takes time to analyze the data and to prepare a written report. Second, venue is important. Though there are a few situations in which using an alternative venue is warranted, this was not one of them. It was requested merely as a convenience for the lawyers. Jurors are different in different venues. They are very different between the venues in question in this case (an upcoming post will address this issue further). Next, the use of 1 group was requested as a time and cost savings device (remember, this was a large, potentially high value case). The terms focus group and mock trial are generic enough such that they are relatively meaningless. For us at Magnus, a basic difference is that a focus group is non adversarial and a mock trial is adversarial. This client wanted a non adversarial group, “to determine damages.” Again, the warning signs flashed for me. If we are evaluating damages, and we almost always do, particularly this close to trial, the appropriate methodology is adversarial. Further, small group research is not predictive of verdicts – that is, damages. Research does many things for the client, but that is asking too much predictability. And, when the research is adversarial, we use a minimum of 2 deliberations groups so that we have a way to compare the results. There are times when the rules get bent and all the stops get pulled out. We’ve done research on cases on short notice and immediately before trial. But, we always work in the right venue, with an acceptable research design. In this case, there were just too many rules being bent – it was a recipe for a disaster that we were not going to let happen on our watch. What was being asked in this case was a major disservice to the client, if not malpractice. Some might suggest some research is better than none; I’m not so sure. Cutting this many corners could lead to a false sense of security, and not learning what the attorney needs to know to help his or her client. It was certainly too risky for us to be involved.

]]> Identity Crisis of Trial Consultants, Part 3: Jury v. Bench Trials or Arbitration https://magnusinsights.com/identity-crisis-of-trial-consultants-part-3-jury-v-bench-trials-or-arbitration/ Thu, 09 Mar 2017 15:00:32 +0000 https://magnus.lisawhitsell.com/?p=1273 This is the final post in the series on the identity crisis of trial or jury consultants. In this post, I want to comment on the term “Jury Consultant.” Over the 25+ years of being in this field, in response to my self introduction, I have heard 2 other things. The first is, “…In my type of law, I am usually only involved in bench trials” (those decided only by a judge, not a jury). The other is, “My cases are all handled by arbitrations.” Guess what, judges and arbitrators are people too! They make decisions in ways similar to jurors. They are professionals, as judges, and in various fields, as arbitrators, but they ultimately make decisions based on the attorneys’ presentations, in addition to the law, just as a jury would do. We’re pretty clever as trial or jury Consultants – at least the good ones are, and we know how to adapt our research methodologies to whatever type of fact finder (judge, arbitrator, or jury) will be involved in a case. So, when lawyers demonstrate a myopic view of trial consultants, it becomes my/our job to educate them and improve their vision. Mock bench trials, mock arbitrations, and mock jury exercises all have commonalities. Sure, there are differences, but with proper and careful consideration of the parameters of the case, a qualified trial consultant can provide tremendous support and direction to a lawyer and trial team, regardless of the forum for the ultimate decision. As I said before, call us what you want, just call us. Or, at least send an email.

]]> Identity Crisis of Trial Consultants, Part 2: Trials v. Mediation https://magnusinsights.com/identity-crisis-of-trial-consultants-part-2-trials-v-mediation/ Thu, 02 Mar 2017 15:00:01 +0000 https://magnus.lisawhitsell.com/?p=1271 This is part 2 of 3 on the identity crisis of “trial consultants” and this is where the crisis becomes more problematic.  When I meet attorneys and mention that I’m a trial consultant, many “get it” – they understand, especially if they have ever hired one of us.  But, some attorneys who have hired trial consultants in preparation for trial fail to consider that hiring a trial consultant is of benefit when they desire to arbitrate their case or settle a case in mediation.  End clients, even professional end clients like insurance adjusters, sometimes have this same mental roadblock.  They say, “I don’t need to hire you because I’m not going to trial. I settle my cases at mediation…” This, somewhat ridiculous, point has been the subject of other posts, but the comment is an indication that the lawyer or end client does not conceptualize the crucial role of trial consultants well before a trial.  Just because we are called “trial consultants” does not mean we are not valuable in helping get a case ready for arbitration or resolved in a mediation.  Often, our role is to provide a benchmark for measuring a good settlement, or to provide a reality check to the parties involved (plaintiffs or defendants).  Trial consultants help the parties achieve the best possible outcome regardless of the forum: arbitration, mediation, or trial.  The names by which we are called, whether we are called as “trial” or “jury” consultant, is not fully indicative of our work – thus, the identity crisis.  Call us what you want; just call us.

]]> Identity Crisis of Trial Consultants, Part 1: Trial v. Jury consultants https://magnusinsights.com/identity-crisis-of-trial-consultants-part-1-trial-v-jury-consultants/ Thu, 23 Feb 2017 15:00:59 +0000 https://magnus.lisawhitsell.com/?p=1269 Various professions have identity problems. For example, when a “speech therapist” conducted a cognitive evaluation of my mom’s dementia, I had trouble understanding the connection. Even professions with seemingly solid identities, such as lawyers or doctors, are not precisely defined as to their specialty. For example, is the doctor a brain surgeon, general practitioner, or a podiatrist? Lawyers may be trial lawyers or litigators, like our clients, or they may specialize in tax, real estate, or elder law. (Elder law attorneys have another identity problem in that their clients are often not old – that focus is narrower than their speciality name describes.) But, as trial consultants, or jury consultants, we have a particular identity problem. This post is the first of 3 wherein I will describe the confusion. As a trial consultant, or jury consultant, we work with attorneys and their clients to evaluate their case, to evaluate witnesses, to help with jury selection, and to help with trial exhibits and presentations, and more. The most general “name” for this profession is “trial” consultant, but “jury consultant” is equally common. The only professional organization overseeing the field is the American Society of Trial Consultants, so “trial consultant” usually wins out. But, as it turns out, people may call themselves a trial consultant but they only provide trial presentation services, ignoring the broadest description of the field. And, as has been discussed in other blogs, and surely more to follow, the qualifications of trial or jury consultants varies tremendously. When one hires a trial consultant, the consultant may not have relevant expertise, training, or education. Calling oneself a jury or trial consultant can be as simple as getting a business card made. The trouble is, how does the consumer of those services discriminate among consultants? Again, this is beyond the scope of this post, but the initial issue is to understand that the terms trial consultant, and jury consultant, are synonymous – as a starting position. Hiring a trial consultant requires getting beyond these terms and into specifics of the scope of services offered, as well as qualifications of the consultants.

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