I am a bit behind in my reading and I just finished a September 2020 CLM Magazine article by James McKeown entitled Rules of the Road: Five Tips for Successful Claims and Litigation Management. Mr. McKeown wrote this article aimed at claims professionals and the attorneys involved in the defense of claims. His 5 tips are:
1) Write your claims notes like you may get abducted by aliens on the way to your deposition. (His point is to be sure someone could pick up where you left off if necessary.)
2) No surprises please.
3) Manage Expectations.
4) Don’t kid yourself.
5) There is no I in team, but there is one in myopic.
Mr. McKeown makes strong suggestions for each of these 5 points, but, I want to point out that what we do as trial consultants in performing pre-mediation or pre-trial focus groups and mock trials (or arbitrations and bench trials) addresses 4 of his points. In short, the type of mock jury research provided by trial consultants ensures that, as long as the clients are honest with us and reveal their weaknesses, each of the items numbered 2 to 5 will be handled. Mock jury research minimizes surprises. Expectations are managed in that everyone involved in the case, the lawyers, the adjuster and claims manager, see the outcome, see the verdicts, and can listen to the deliberations. As a result, everyone involved “sings from the same sheet of music.” Further, some lawyers and claims folks don’t see the risks in certain cases; sometimes they are “kidding themselves” and trying to fool others. Mock juries take away that option. Perhaps the risk is not there, but better to find out in a mock jury, when it doesn’t count, than in the real courtroom when it can hurt, badly. This is related to not being myopic. We have had many experiences when the lawyer is more concerned about the negative outcomes of the case, and they push their client to spend money to hire us. We’ve had at least as many when the claims adjuster didn’t think the lawyer was being as forthcoming about the potential downside. Regardless of who was right or wrong, when it all comes together and people reach verdicts, informed decisions can be made based on data indicating the best ways to manage a particular case. Managing litigation means using the available means to determine successful outcomes.
Magnus’ original slogan was “Reducing the uncertainty of litigation.” There are numerous uncertainties in the world of litigation, however, an astute law professor, the late McKinley Smiley, advised us to change our slogan because many attorneys are not uncertain about anything. They may be wrong, but they are certain. This also applies to insurance adjusters, many of whom rely on “gut instincts” (whatever that is) to make judgments and place monetary values on claims. Their “gut instincts” may be wrong, but nonetheless, they are sure of themselves. I cannot count the number of times that an experienced insurance adjuster has been stunned, shocked, and keeled over in disbelief by the outcome of our mock jury research. It is interesting for me to observe the change in an adjuster from their arrival at the beginning of a research day to the final moments of the last mock jury’s deliberations. The adjuster often arrives with an arrogant, know it all, attitude that conveys his or her disdain for anyone who dares disagree with the assessment of the case. Their contempt for my staff and me is quite obvious. Soon, however, things change and the know it all is transformed to a person who has been both humbled and proven wrong by several groups of mock jurors, with everything video recorded for the adjuster’s bosses to review as many times as they would like to see how “real people” perceive the case. Often, panicked phone calls and emails take place, and relatively often, the case is settled before I have time to write my report. It’s humorous to me to see how a pompous person can be enlightened by a group of strangers and it happens time and time again. As Jimmy Buffett wrote in his song, “Mañana,”: “Don’t try to describe the ocean if you’ve never seen it. Don’t ever forget that you just may wind up being wrong.” Conducting mock jury research, attitude surveys, and focus groups are an excellent way to avoid being wrong.