Recently, a long time client accused me of being overly critical of his clients’ case. It seems that this client, a well respected attorney, and his law partner, another well respected attorney, were displeased that I did not perceive their case in the same positive light as they and their clients (attorneys for a huge corporation) perceived it. Furthermore, these high powered attorneys were insulted by the direct manner in which I wrote my findings, based on having conducted extensive jury research on the case, in the report I prepared for them. This dilemma presented a quandary like one I have never faced in my career: Evidently my scientific analysis of the case made the attorneys look bad to their client, leading them to blame me for exposing their weaknesses. This problem is one of the difficulties inherent in my work due to the fact that, often, our research uncovers things about a lawsuit that have not been considered by our clients and the ultimate client, the corporation that has hired my company. In anticipation of this, our contract contains language regarding our role as “Devil’s advocate,” cautioning our clients that we may tell them things they do not want to hear. We have absolutely no control over the outcome of the jury research because the research participants/mock jurors say and do whatever they believe is the right thing, regardless of what anyone, including our client, wants them to say or do. In my role as an independent consultant who is not employed by any law firm or corporation (other than the one I own), I am compelled to report my research findings accurately and to base my recommendations on what actually happened, as opposed to what the client wished would have happened. Adding more fuel to the fire, one of the attorneys was unprepared for the mock trial to the point it was blatantly obvious to everyone, including the mock jurors, and there was nothing I could do to change this unexpected aspect of our work (particularly when the presentation and mock jurors’ reactions to it were video recorded!). I am used to being a scapegoat for attorneys who lose their cases when they fail to follow my advice or for other reasons beyond my control, but it is a career first to be accused of being mean, unprofessional, etc. because my report exposed the weaknesses of the case and of the attorney who is responsible for ensuring a victory at trial. The bottom line is: Don’t hire me if your only goal is to have me make you look good. I can’t make people look good if they make themselves bad, nor can I cover up obvious flaws in a lawsuit when they are there to be seen. I am not a “yes person,” I am a social psychologist who WILL report research findings accurately and without sugar coating.
The scenario Melissa described is one in which the “truth hurt.” And, for whatever reason, our attorney clients had not been as honest and open with their clients as they probably should have been. In addition, the lack of preparation on the part of a very busy, well respected, trial attorney was shocking. Don’t misunderstand either that our report was, in our opinion, harsh or personally critical – it was merely a plain spoken analysis of the results. As trial consultants, we are never hired on the easy cases. We don’t get hired on “no brainers.” We spend considerable time explaining that, while we are “on the side” of the client who hires us, this means that we want them to do as well as they can. But, not every case is a winner and sometimes the question is how badly will we lose. We must evaluate a case and its worst case aspects. The goal of research is not to walk away patting everyone on the back saying, “what a good case.” No, we are there to find the problems, and to try to fix them. If the attorneys and their clients do not understand, going into an engagement with us, or any credible trial consultant, that this is the case, then they are in for potentially harsh surprises. There are, perhaps, some trial consultants who sugar coat findings; there are also those who become personally vested in a case – advocates – but that is not our job. Trial consultants should conduct research carefully and without imposing biases, external or their own. Then, the chips fall where they may and the results are what they are. It is because we strive for such objectivity that our clients, whether they be plaintiffs or defendants, can make informed decisions about how to proceed with the litigation. Turning on the trial consultant is a sure way to lose valuable insights.
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