I was speaking with someone recently who was lamenting about how cost is a factor in decisions, sometimes, with a penny wise and dollar (pound) foolish approach. This person quickly related a story about when he was buying a piece of equipment for his office and asked what it cost. The astute salesperson said, “it doesn’t cost, it pays…” I like that! (And, I told my new acquaintance that I was going to appropriate it for this post.) That is exactly the message I try to share with prospective clients. The cost of mock jury research (or whatever we are being asked to do on a case) should not merely be seen as a cost; rather, it should be seen as an investment. It is an investment in a better, more certain outcome. It is an investment in information to facilitate better decisions about whether to settle or try a case. It is an investment in the witness to ensure that she/he can tell her/his story in the most compelling manner. The problem, however, is that it is usually impossible to quantify this investment. We certainly have anecdotal examples of this, for example, when a plaintiff’s demand was $2 million, and our clients, the attorney and the insurance adjuster, disagreed on the likely outcome. After the mock juries (several) rendered their verdicts, it was obvious that the adjuster had undervalued the case, badly. The mock jurors found liability and awarded significant damages. Settlement occurred soon thereafter and later, the attorney and I discussed the situation. He related that the adjuster calculated the cost of settling the claim and realized that, because of what was learned, it settled for less than had been demanded, and further, that the cost of hiring us, while not insignificant, actually saved the insurance company considerable dollars in trial costs alone. Nevermind the possibility of a higher verdict, the investment paid off on just the trial costs. The insurance adjuster and his company would not have settled the claim absent the research, so it was true that it didn’t cost, it paid! This message is harder for some people to understand than others, but it recurs frequently, thus, we keep trying to spread the word.
There is a common maxim, “If you have to ask the cost, then you probably can’t afford it.” Some of Magnus’ clients are more cost conscious than others and, in fact, some of them are more concerned about cost than quality. When I am asked, usually by someone in the audience at one of my speeches, “Well, this jury research thing sounds great, but how much is it going to cost?” I usually respond, with humor, “The cost depends on how much you want to know.” Humor aside, there is an obvious relationship between cost and quality, cost and the usefulness of information, cost and performance, etc. It is no secret that a Mercedes-Benz costs more than a Cadillac but less than a Ferrari! Thus, it should be no secret that the cost of mock trials, focus groups, or surveys is related to the depth and breadth of the information obtained, such that, on “small” cases, that is, cases with relatively low damages, the cost of research is less than research conducted on “big” cases ranging from multi millions to multi billions of dollars. Just as the attorneys who work on cases of varying magnitudes bill for their time in varying amounts, depending on how much work they do, the amount of time and effort trial consultants spend on a humongous case should be expected to be far greater than on a slip and fall case. Anything else would be unusual. All of this being said, the cost of hiring a trial consultant is one of many considerations the trial team must make when preparing their case. If the case is significant enough to warrant highly paid expert witnesses, not to mention attorneys, it is significant enough to warrant research prior to arbitration, mediation, or trial. The cost of not doing research, in contrast, can be insurmountable, in that a lack of preparedness often leads to a negative outcome for the attorney and his/her client. In my view, the question should be rephrased from, “How much does this cost?” to “How much will my client lose if I don’t know how to overcome the weaknesses in the case?”.
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