Lessons Learned the Hard Way

I make mistakes, a lot of them. A few minutes ago, David pointed out my most recent mistake, for which I apologized. I almost always take responsibility for my mistakes and I try to correct them when it is possible to do so. Fortunately, none of my mistakes have resulted in seriously negative outcomes for someone, including me. Furthermore, unlike some people, I usually learn from my mistakes, such that I avoid making the same mistake twice. Nevertheless, some of the lessons I have learned during my over 3 decades of working as a trial consultant have been learned “the hard way.” After learning a particularly painful lesson, I am disinclined to do anything that will cause a similar problem. Lessons I have learned from clients, including Magnus’ clients and clients of 2 former employers in the trial consulting business, are:

(1) Talk to the boss. As I have mentioned in the past, I learned, early in my career, that it does not matter what the paralegal says. It does not matter what the associate attorney says. It does not matter what the “second chair” on the case says. I take my marching orders from the boss, that is, the lead trial counsel in the case. Everyone else will be treated with kindness and respect, but in the end, all of us on the trial team must realize that our work is directed by 1 person, the boss. For this reason, I always insist on talking to the boss prior to working on any client’s case.
(2) When there are 2 or more attorneys involved in presenting a case at a mock trial, talk with both of them at the same time, either in person or on the telephone. I learned, painfully, that failing to speak with both or all attorneys, so that everyone can receive the same instructions, is a requirement in every case. If I speak with 1 attorney at a time, then he/she might think I am saying something to the other attorney(s) that is incorrect, or that I am withholding information provided to the other attorney(s), or worse. I have been wrongly accused of misdeeds by attorneys who “threw me under the bus” in an effort to cover up their incompetence. Never again!
(3) When dealing with the super sized ego of an attorney who perceives himself/herself as the GOAT (Greatest Of All Time) among trial lawyers, it is often necessary for me to provide advice or counseling privately, so that the ever present minions do not witness any imperfections on the part of their boss. When I am tasked with improving the trial outcome for a high profile attorney, he (so far, there have not been any women lawyers who fit this profile) must never be embarrassed in front of his adoring staff. If I ever make this mistake, I will pay for it by losing a client, forever. (I almost made this mistake once, by failing to realize there were 2 GOATs who were co-counsel on a case, but luckily for me, one of my employees alerted me about who was who.)
(4) When asked for my opinion about my client’s case, tell the truth, as nicely as possible. Only once has this resulted in the permanent loss of a client, because I answered his questions by telling him things he did not want to hear, however, I will never lie to a client, regardless of how painful the truth is.
(5) If problems are occurring between a member of the Magnus team and a client, always document everything in writing. This way, there is no “he said, she said” when the problems worsen. Fortunately, this is a rarity at Magnus. Nonetheless, when it comes to things like “the check is in the mail,” I am unable to proceed until the check in the mail is finally delivered.

Overall, while these examples are of events that have occurred, they are infrequent, but painful, reminders of the difficulty in meeting every client’s expectations, 100% of the time. Here’s hoping the mistake I made today will be the worst thing that happens today. If so, it will be a pretty good day!

Some of the lessons learned at the top of my list are not really mistake driven, but lessons learned due to many of the unique aspects of doing trial consulting work, including working with highly successful, demanding clients (attorneys) on difficult and complex cases.  And, further, while we are not doing “rocket science,” there are still technology issues involved in our work.  

(1) It is important to be sensitive to clients for more than just the case at hand.  Clients are human too.  We never know the stressors or baggage they bring with them.  It is hard to pick up on cues sometimes, but other times, the cues are there to be seen, by someone.  Working as a team, we’ve learned to listen for behind the scenes information that might explain the sometimes unexplained quirks revealed during the research process.  As a research “team,” it is important for all of us to be attuned to what is going on and to share information with each other.  This is something difficult to train, but something we try to impart by example.  I can think of multiple specific examples of this, but one that comes to mind is, when we worked with the managing partner of a major law firm who was dealing with something explosive, something newsworthy, involving an attorney at her firm.  Texts, emails and phone calls were happening between the case presentations she was making that day.  Her presentation was not as strong as it should have been, unfortunately, but there were “extenuating circumstances” about which we learned over time.

(2) Related to Melissa’s #4, when clients ask for our opinion, be cautious to explain that our opinions are less important, initially at least, than those of the mock jurors or participants in the research.  Clients often “bounce their case off” of staff, friends, and family, for input.  Sometimes, we are expected to give input absent any data.  It becomes our responsibility to point out what is obvious to us.  That is, the informal focus groups the client has been using are inherently biased.  It is important to communicate to the lawyers that we need data in order to provide input.  We’ve had to caution staff who are anxious to respond to clients’ questions that they need to defer to Melissa’s expertise in answering “loaded” questions.

(3) Our research involves technologies in multiple ways.  This creates the risks of technical glitches – they happen!  They may be with our video recording or playback.  They may be with the PowerPoint or other presentation equipment.  The lesson learned is “don’t panic – fix it.”  Get creative and find ways to manage the mock jurors, clients, and technology all at the same time.  Communicate what is happening and what is being done to resolve it.  Whenever possible, have a back up plan, a Plan B.  Having redundant equipment, cables, microphones, etc., are all a part of being ready for problems.  Problems are less debilitating when a solution is available!

(4) An aspect of the work we do, that may not be obvious, and certainly isn’t glamourous,  is event and catering planning.  Meals have to be served to the participants/mock jurors, and clients/observers.  We’ve learned that we must anticipate certain things, such as there are likely to be vegetarians in a mock jury group, and we order the food accordingly.  But, more specifically, we have learned to inquire in advance about food preferences and allergies.  We learned this the hard way when vegetarian clients attended and we had no vegetarian meals available to them. No one told us. We learned from that experience to push the point and ask.  And, little details include asking the facility staff to ensure no onions or other “stinky stuff” be served. A smelly conference room makes for a long day.  

There are more lessons learned, but this sampling provides an idea of how we learn as we go to avoid a repeat of a problem.  This is one reason we conduct debriefings among ourselves after the completion of each case.  Be prepared is not just the motto of the Boy Scouts.  


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