A recent experience prompts this post. I got a call from an out of state prospective client about a case in “our backyard” of south Florida. Turns out, they were surprised by the judge in the case who told them to get ready, fast, for trial. It caught them off guard a bit, and they didn’t know if we would have time to help. We did, and I went to great lengths to provide them with information, proposals, and to follow up to try to get the project off the ground. I was given information about the case and read a little about it using public documents. My reading of these documents told me they have a difficult road ahead. The case is risky. I’m going to skip through some frustrating parts of the encounter, but suffice it to say, I could tell there was more to the story as to why getting the approval of the project was being delayed. I eventually got word that the client would not approve hiring us, or any trial consultant. Though I was never directly told, what I now surmise is that the attorneys were recommending our hiring to “CYA” themselves. They knew that the client needed a reality check to understand how their actions would be perceived. The client’s (bad) actions, which resulted in the lawsuit, are consistent with someone who does not think the law applies to them. This type of person thinks he/she can run a company any way they please, or treat people just as they like, without question. I think the lawyers saw the conflict in these perceptions and decided to try to get the client to hire us to open the client’s eyes. I suspect they put that in writing somewhere. Because when the case ends badly, they want to be able to say “I told you so…” I guess it is an occupational hazard to have to deal with clients of this type; I understand the lawyers’ tactic – they were smart in covering themselves. The downside for us is not getting the case, and spending considerable time trying, in vain, to make that happen.
As David and I have mentioned many times in past posts, there are numerous reasons why Magnus is retained for mock jury research, focus groups, attitude surveys, witness preparation, and jury selection. Some times, attorneys are motivated to hire Magnus because they want to improve their odds of winning their case. A long time client of ours, Kim Hart, was prototypical in this regard. He retained Magnus on 100% of the cases he took to trial, including the smaller cases, because he wanted to be on the winning side 100% of the time. (Guess what? It worked!) Other attorneys want to conduct pre-trial, pre-mediation, or pre-arbitration research to convince their clients that their case is not as strong as the client believes. I could keep listing other reasons, but suffice it to say, there are many. The “CYA” reason is intriguing because attorneys who retain Magnus for this reason are usually trying to prove to their clients that they did everything they could possibly do to help them. That way, if things don’t turn out well at trial, they can say, “Well, at least we tried. And, we can all agree that we, as attorneys, did the best we could.” The attorneys who are unsuccessful in persuading their clients to make an investment in the outcome of their case by hiring Magnus have an even stronger position for an “I told you we should have conducted mock jury research” in the event they lose their case at trial because they can say, with confidence, that, if only they knew what jury eligible citizens thought of their case, they might have had a better chance of winning. As painful for David and me to not be retained due to a client’s absence of foresight, unwillingness to invest in their case outcome, or other reasons, the attorney can rest assured in knowing they tried to help their client.