Commercial Litigation: Benefits of a Trial Consultant, Part 2

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 ( and 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.

Magnus has worked on numerous commercial cases in which things between or among the parties became personal.  Some people wrongly believe that, because commercial cases are mostly about money (as opposed to compensating someone for an injury), they are boring and impersonal.  This belief is a misconception because, although commercial cases involve a plaintiff suing a defendant for money (and when Magnus is involved, multi millions of dollars), the people who are in charge or otherwise involved in the companies tend to perceive their role in the lawsuit as a personal affront.  For example, we have consulted on several cases in which the defendant was insulted to be accused of breaking a contract, committing fraud, or otherwise harming the business of the plaintiff, someone he/she knows and trusted. And, as one can imagine, when family members are involved in high stakes litigation concerning the breakup of a family business, allocation of stocks and other assets, theft of corporate trade secrets, etc., things take an ugly turn.  There is nothing like a family feud involving millions of dollars that brings out the worst in people!  When litigants take things personally, for whatever reason, they often fail to appreciate that a jury, an arbitration panel, or a judge might see things from the other side’s perspective of the case.  Conducting mock jury research is a sure way to convince this type of client that, while they may believe they are morally or ethically entitled to prevail in their lawsuit, the person or persons who will decide the case are bound by legal constraints, such that things might not turn out as expected.

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