As trial consultants, we work in a field where defining “success” is somewhat elusive. We have talked around this in other posts, but will explain it further in this one. In the civil arena in which we work most often, the outcome variables are a verdict comprised of liability and damages. While lawyer advertising often touts successes like “My lawyer won me $1 million” the reality is that defining success is not quite that simple. To quote a lawyer I heard at a conference once, the best way to get a $1 million verdict is to start with a case worth $10 million. Winning and losing is more relative than absolute, usually. There are some outright defense verdicts that can most easily be called “wins” for the defense. But, some plaintiff’s verdicts, whether $1 million or $1 Billion, are more subjectively called wins. Back to the quote, if a plaintiff’s attorney has a case that might be work $10 million, but “only” gets a verdict of $1 million, this might even be called a loss. To cloud the point further, on many of our defense cases, losing millions could be counted as a “win.” We have noted, in another post, the case that taught us this lesson most clearly early on. Our client “lost” $8 million, but was thrilled. He, and his client, were prepared for damages as high as $25 million against them. Then there is the issue of what result would one attorney have gotten with the same case, the same facts, and the same client – even with the same jury. One way where law and psychology, or social sciences, are so very different is that there are few do-overs. There is, more appropriately, no control group in law. Lawyers get one shot at their case at trial, unless there is a new trial based on an appeal. They must get it right the first time – the only time. But, the result they get becomes their measure of success despite the impossibility of comparing it to any other lawyer, venue, venire, or client. Thus, there is a conundrum of defining a successful lawyer. This is one of the reasons lawyers are restricted on their advertising. It is also a key reason that trial consultants should not tout a win-loss rate (something prohibited by the American Society of Trial Consultants). In some fields, defining success is much simpler, cleaner , and objective. The reality in our world is different and complicates many aspects of our practice, the marketing of our practice, and in very similar ways, those aspects of a lawyer’s practice.
The primary difficulty in defining success, when it comes to evaluating a jury verdict, is that there is no objective way to measure it. In psychology and other scientific endeavors, there is a control group, which receives no experimental manipulation, and is thus, considered a baseline by which to measure the results of the experimental group, which is the group on which one’s hypothesis is tested. In contrast, when evaluating a jury verdict, there is no means by which to compare the verdict with another verdict because: (1) there are no two cases that are exactly alike; (2) the jury selection process is unscientific and dependent on many factors that cannot be predicted or controlled; (3) a case lost by one lawyer might be won by a more skilled or more persuasive lawyer; etc. In a similar fashion, small group research, such as focus groups and mock trials, cannot be used to predict success in the courtroom. I have, with varying degrees of patience, tried to explain these realities to my clients, most of whom have never received any training in the scientific method. When Magnus conducts several mock juries on one case, some of our clients have added all of the damages awarded by each group, then divided the total amount by the number of groups, yielding an average damages award. Then, they triumphantly approach me and exclaim, “Well, I expect you to guarantee that the real jury will award the amount the mock juries awarded, on average. That is why we hired you, of course.” It is at this point I take a deep breath and explain that, although the average amount awarded by the mock juries is a fun thing to know, in no way does it predict, especially with 100% accuracy, the outcome, and thus, the success, they will have at trial. There is no way, absolutely no way, to know, with scientific certainty, the results of a trial before it happens! And, if any trial consultant guarantees a “win” or “success,” the savvy attorney should run the other way, fast!
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