Objective Data for Better Decisions – Proof for Others

I had a conversation yesterday with a client that prompts this post on a topic I’ve had on hold for sometime. When a trial consultant conducts mock jury research, or mock arbitration, or a mock bench trial, the consultant is collecting objective data to report to the client as to the specific results or verdicts by the participants. Using these data, the consultant formulates mediation, arbitration, and trial strategies. That is, we, as trial and jury consultants, in researching the reactions of the fact finders of the case, are building information for the client (attorney) and his/her clients – the “end clients” (whether plaintiffs or defendants; parties, insureds, or insurers). The job of the trial consultant is to come up with data and recommendations. It is the job of the attorney and his/her client to do with the data/results what they will. Often, the end clients have an unrealistic perspective on the case. Plaintiffs sometimes think their case is worth much more than what reality would support. Sometimes, defense clients think there is no liability. And, regardless of which side they represent, the party’s attorneys often have other opinions. The verdicts from research provide a common ground for everyone to consider the case. I do not mean to imply the research results are an absolute prediction of case or trial outcome, but they are objective analyses of the case issues (if the research is properly conducted). Armed with the knowledge gleaned from the research, the end clients and their attorneys can make realistic and appropriate decisions about the continued litigation of a case including whether to settle it. We sometimes refer to this process as a reality check – applicable for either side. And, taken a step further, the findings become “proof” for other people as well. Again, plaintiffs need the reality check to come to an agreement with their attorney on what a reasonable settlement result should be. On the defense side, things are a bit more complicated. In the insurance defense, world, there are often layers of adjusters, and maybe, of insurers. The first line adjuster reports to a supervisor and/or committee and must make recommendations about cases based on many factors. Often, we have seen that the data from a mock trial are sent up the chain to provide something concrete for the claims professionals to consider when resolving the case. And, in a twist of this scenario, and the point that prompted this post, when I spoke with a prospective client representing a plaintiff, I explained that, often, our plaintiff clients will reveal mock jury research findings to the defendant at a strategic time – usually during mediation – as leverage. It is hard to know how successful this tactic is, but many of our plaintiff clients have reported it is effective. Bottom line, the mock jury research is an objective way to evaluate the case; the information from the research can be used to communicate with others, on either side of a case, in ways that all can ultimately sing off the same sheet of music.

At Magnus, we are “all about” data. And, just to be sure the reader knows this, “data” is the plural of “datum,” therefore, when one refers to data, to be correct, one must say things such as “the data are,” “the data have revealed,” “the data confirm,” etc. instead of wrongly describing data as if “they” were “it.” Now that this common grammatical error has been addressed, I will comment on David’s post. Although there are many reasons Magnus’ clients are motivated to retain us, the bottom line is they are trying to gather more information, from a different source than a law related service, to make a decision about their case. The research performed by Magnus is designed to complement other information obtained by our clients, including medical experts; accident reconstruction experts; engineering experts; and many others. Just as a physician can qualify as a medical expert to testify about an injury and its effects, my expertise as a social psychologist allows me to provide recommendations on trial strategies based on having conducted scientific research on the issues involved in a case. It has always been interesting to me that some uninformed attorneys fail to understand the parallels between other professionals’ expertise and my expertise in human behavior and jury decision making. A lot of people have expertise in a lot of things; my expertise just happens to be people. And, the way I obtain information about people, that is, the people who will decide the case on which I have been retained, is by conducting research on their life experiences, attitudes, values, beliefs, and personality. I don’t base my decisions on “gut feelings” (which, as an aside, sounds horrible to me), intuition, or anything except data that have been derived from an objective analysis of properly conducted social science research. There are many competing theories about the best way to predict the outcome of a high stakes lawsuit, but I prefer the scientific way over and above anything else.

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