How much risk can you take off the table?

A recent lunch with a client involved an interesting discussion of how to convince “end” clients to spend money on mock jury research. For those who don’t know, in some cases, the lawyers advance the expenses, including expenses for things such as mock trials, and in others, they expect the actual client, the “end client,” whether an individual, corporation, or insurance company, to advance those expenses. Our discussion involved a reality of litigation such as there are many variables which affect case outcome. These “risk” factors can be things like the likability of the parties involved on either side, the egregiousness of the actions involved, the conditions faced by the parties (for example, in an accident case, was it night or day, raining or not, was there substance use/intoxication), and many more things. Sometimes the negligence is clear, and those cases usually settle relatively quickly. It is when things are not so black and white that we get involved to sort through the risk factors. Our client explained that he has been trying to reason through this discussion with his clients to explain that, as an excellent trial attorney, he can lessen the risk on some variables, but others remain. The question he poses to these clients is, how much risk do you want to take off the table? How many of these risk variables do you want to evaluate to determine how best to handle them? Focus Groups and Mock Jury Research often can help neutralize a negative. These methodologies can “throw out” the issues for discussion and allow the trial consultant and lawyer(s) to work together to try to fix the problems. (And, it is, admittedly, true that not all problems have a remedy.) Without conducting research, the attorney is merely guessing at which approach will work. Doing so can result in bad outcomes if the guesses and assumptions are wrong. This savvy attorney’s approach is to try to get clients to understand that if “we,” as a team, can collectively control some of the risk factors, then the overall outcome will be the best it can be. We agree.

In the early days of Magnus, our slogan used to be “reducing uncertainty.” We soon learned this was an ineffective slogan in that most attorneys don’t appear to be uncertain about anything. They may be wrong, quite wrong, but they are certain nonetheless! The idea of reducing risk is, perhaps, a better way to frame what we, as jury/trial/litigation consultant do for our clients. All lawsuits involve risk. Regardless of an attorney’s expertise, it is impossible to remove all risks associated with high stakes litigation. Human behavior is too difficult to predict, even for people like me whose job is to predict it, and, given that judges and juries are human beings, there is absolutely no way an attorney can assure his/her client that the case will result in a positive outcome. Therefore, our client’s query regarding the level of risk his clients want to take on their case is a good starting point to begin a discussion about all of the ways to reduce (but not eliminate entirely) litigation risks. Some clients invariably say, “I want to reduce all possible risks by doing everything I can to achieve a positive outcome on my multi million dollar case.” These types of clients are the people who are savvy enough to understand the benefits of working with Magnus. We have had the pleasure of working recently with some highly sophisticated clients for whom money is no object. These clients are unusual in that they realize their actions, strong personalities, and involvement in their lawsuit are risks that must be minimized. Not only has Magnus conducted multi phase research on this case, these clients have told their attorneys that they insist on being subjected to professional witness preparation prior to their trial. In that, typically, it is the attorney who convinces a reluctant client to undergo professional witness preparation (by someone other than an attorney who has training in this area), it is highly unusual for the end client to request this type of risk reduction in litigation. Risks can be minimized, but as with many other things in life, it takes a certain type of client to understand how Magnus plays an integral role in reducing litigation risks.

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