Many people, when I tell them what I do for a living, inform me that I should write a book about my experiences, some of which are funny, others of which are scary, and still others of which are odd, strange, and curious. In this series of posts, I will describe some of my experiences working with my clients, all of whom are trial lawyers/litigators. I will begin my detailing one particularly odd situation. My company, Magnus, works with high powered attorneys all across the U.S.A. to help them prepare for trial, mediation, and arbitration. Because our work is highly confidential and we are retained (and paid) by the attorney representing one of the litigants, our work is unknown to the opposing side. Thus, when we are working for the plaintiff’s attorney, the defendant’s attorney is unaware of our work; similarly, when we are working for the defendant’s attorney, the plaintiff’s attorney is unaware of our work. (I am referring to attorneys who retain my company in civil litigation. Rarely do we work on criminal cases.) Because my company is hired to help the attorneys for one, and only one, side of the case, a member of the trial team must role play opposing counsel during our mock trial and other jury research. Without a balanced presentation by equally qualified attorneys, it would not be possible for our research to take place. This means that the attorney(s) who are role playing opposing counsel must do a stellar job making their presentations during our research studies, in much the same way as the actual attorneys will do in court. Once in a while, these “actor” attorneys get caught up in what they are doing, to the point they appear to be true advocates for the side of the case they are, in reality, working against. We had a most unfortunate situation arise once, when the role playing attorney took a few liberties with his presentation, causing the attorney representing the client for whom we were working to become extremely agitated. In fact, his agitation led him to scream at me (in my role as the judge in our mock trial proceedings) that he was requesting a mistrial! Anyone who watches law related TV shows knows about mistrials; they are granted in cases involving serious misconduct or other problems. However, in a MOCK trial, there is no such thing as a mistrial! The fact that it was the agitated lawyer’s law partner who, perhaps, said a few things that were better left unsaid did nothing to assuage his anger. When I tactfully tried to explain there is no such thing as a mistrial in a mock trial, my client became irate and refused to make his presentation. Fortunately, we were working at a lovely oceanfront resort hotel, so I sent the 20 or so mock jurors to the beach for an unplanned break to allow me time to persuade my client that “the show must go on.” Eventually, I was able to convince the attorney it was in our mutual best interests for him to perform his job in the manner in which our client was paying him to perform. Interestingly, when I spoke with the other members of the trial team a few weeks later, as I always do as a follow up to our research, I was informed that the agitated attorney was taking a month off for “personal reasons” (I always suspected it was actually 28 days, the customary time of rehab. programs). I have told this true life story many times and I always enjoy seeing people’s reactions. Truth is, indeed, stranger than fiction!
The role of the “opposing counsel” is critical to our work. We want them to become strong advocates for the other side’s case. They must be strong advocates of the opposing position – a true devil’s advocate in the mind of the actual client. If they are not, the whole process suffers. But, in this case, it obviously suffered because our client/attorney not only did not fully understand this, nor did he consider how his trial partner might take an extreme position – to advocate against him. Perhaps he was afraid of being “shown up” in front of his client. But, in litigation, expecting and anticipating “dirty tricks” from one’s opposition should be the norm. Why this attorney thought it was appropriate to mis try a mock trial, something that would cost his clients thousands of dollars, remains a mystery. That over reaction on his part was certainly an indication of some instability. Strong advocates walk a fine line emotionally by advocating for their client while not losing sight of the fact that their partners, and trial consultants, are trying to help them do the best job possible for their clients, our mutual clients. The fact that this attorney showed his inability to keep things under control most likely did not play well with his/our clients! We can only hope he has come to a more mature, and professional, point in his life in his ability to manage his emotional, angry reactions.