Identity Crisis of Trial Consultants, Part 2: Trials v. Mediation

A Point of View

David H. Fauss, M.S.M.

On March 2, 2017

Category: Business Frustrations, Getting the Job Done, Litigation Tips, Marketing your Business, Psychology, Trial Consulting, Trial Science

This is part 2 of 3 on the identity crisis of “trial consultants” and this is where the crisis becomes more problematic.  When I meet attorneys and mention that I’m a trial consultant, many “get it” – they understand, especially if they have ever hired one of us.  But, some attorneys who have hired trial consultants in preparation for trial fail to consider that hiring a trial consultant is of benefit when they desire to arbitrate their case or settle a case in mediation.  End clients, even professional end clients like insurance adjusters, sometimes have this same mental roadblock.  They say, “I don’t need to hire you because I’m not going to trial. I settle my cases at mediation…” This, somewhat ridiculous, point has been the subject of other posts, but the comment is an indication that the lawyer or end client does not conceptualize the crucial role of trial consultants well before a trial.  Just because we are called “trial consultants” does not mean we are not valuable in helping get a case ready for arbitration or resolved in a mediation.  Often, our role is to provide a benchmark for measuring a good settlement, or to provide a reality check to the parties involved (plaintiffs or defendants).  Trial consultants help the parties achieve the best possible outcome regardless of the forum: arbitration, mediation, or trial.  The names by which we are called, whether we are called as “trial” or “jury” consultant, is not fully indicative of our work – thus, the identity crisis.  Call us what you want; just call us.

David mentions attorneys who don’t “get it” when it comes to understanding the valuable role of trial consultants in the litigation process. In my opinion, many attorneys who don’t get it actually do not want to get it; that is, they are fearful we will expose their weaknesses to their clients. Many attorneys wrongly believe they know everything there is to know about litigation and further, they believe they know more about our area of expertise than we do. That may be true when it comes to some of our unqualified and uneducated competitors, but it usually doesn’t take long for most attorneys to realize I know a lot more about human nature, decision making, and group behavior than they can ever hope to know. The fact that a particular case will not ever go to trial is an irrelevant factor in the decision to retain an expert on human behavior. Mediators, while they are supposed to remain neutral, are people and just like people of all types, mediators have inherent views of the world, not to mention biases, that affect their judgment during the mediation process. Failing to prepare one’s case properly prior to mediation is a dangerous proposition. When a prospective client tells me that my expertise is not needed because the case is likely to settle during mediation, I usually ask him or her, absent a benchmark such as pre mediation research (with mediators or mock jurors), how they know whether their resolution of the case is the best result for their client. Their answer to my question is often, as you may have guessed, silence.

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