Politics of Litigation

A Point of View

David H. Fauss, M.S.M.

On May 20, 2021

Category: Entrepreneurship, Getting the Job Done, Jury Consultants, Magnus, Magnus Insights, Magnus Research, Trial Consultants, Trial Consulting

Magnus is hired for many reasons. To evaluate the liability issues in the case. To assess the damages potential. To determine at whom to point fingers. To get a plaintiff to understand the realities of their case. To get a defendant to understand the realities of their case. Is it a case to try? Is it a case to settle? For insurance adjusters, how can I get my supervisor and her/his supervisor, to authorize settlement? Or, should we fight it at trial? Only in this last example, learned years ago, did I ever get an inkling of an idea that our work is used to gain “buy in.” But, after working for governmental entities, state, local, and national, and talking with the lawyers, I learned about how jury research connects to political decisions. We’ve worked on contract cases, construction cases, injury cases, and more, for governmental agencies. Even though in some of these cases, sovereign immunity caps exist (that’s a subject for another day), some of these claims are difficult to resolve, perhaps even more so because of the caps. This is because, not only does the legal department have a part in the decision, but there is the risk management department, maybe an insurance carrier, and… the elected officials to whom the lawyers and risk managers ultimately report. City or County elected officials answer to their constituents – the voters. Even career, non-elected state agency lawyers answer to someone who answers to someone who answers to the Governor. What I learned is that having our research, our report, provides a rationale to our clients for making a decision to resolve or fight a case. If it came to it, the report could answer a constituent’s concern about why money was paid in a settlement. Or, why litigation was undertaken on behalf of the government. Taken in this light, we provide “cover,” that is, “political cover,” to those who, with good intentions to be good stewards of the government’s resources, may have to explain why a course of action makes sense. This cover has resolved more than a few cases with everyone involved knowing the right thing was done. Political litigation concerns are eased with the data in hand!

The behind the scenes intrigue in many of our clients’ cases is often more important to our clients than the outcome of their jury research.  One of my all time favorite clients, now deceased, was a wonderful attorney who worked for a government agency.  Until he hired Magnus to work on several of his cases, the agency where he was employed had never authorized the hiring of a trial consultant.  Furthermore, none of the lawyers who worked in this agency had ever won a case at trial.  This savvy attorney was trying to change the odds, so to speak, by learning everything he could about potential jurors’ reactions to his cases (which were all similar, due to the government agency’s mandate), with the goal being to win some cases.  Guess what?  After working with Magnus on several cases, the “powers that be” declined to authorize additional work because our client’s colleagues were afraid that, if he won some cases, they might have to work harder in order to win their cases too!  This is no joke!  Needless to say, our client did not work for this agency much longer.  He went on to become a high level person in another government agency and we continued our friendship until his untimely passing.  Politics are politics, but Magnus’ research and consulting services nonetheless have the ability to turn losers into winners, if only we are allowed to help.


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