One of the strangest outcomes of mock jury research is the realization, and documentation, that the attorney for whom we were working was not up to the challenge. Though we never anticipated this would occur, it has. And, it has happened more than once. The first time I recall this happening was when we were on a team working for the defendants in a commercial case. It was a big case in terms of money, and it was complex. There were many issues and as such, we were utilizing a multiphase research design. It was our first case for the lead attorney, but we had worked for his firm before and others at the firm were involved in the case, fortunately, as we learned. As polite and professional as this obviously successful lawyer was, he was unable to tell the story of his case in a compelling way. And, as often happens, the end client, the one really paying our bill, was observing, so it was painfully obvious. I don’t know whether the client being present made this situation better or worse. Perhaps it could have caused the lead attorney to be flustered, but the result was an unhappy client for both us and the attorney. Our procedure is to analyze the survey data after the day of research and those analyses confirmed what we observed – the mock jurors were not impressed with the lead attorney either. Because we primarily report to the lead attorney, we had a dilemma. Our relationship with the firm and others on the team was strong enough that we were able to discuss the dilemma with them such that the lead attorney and others on the team were able to gracefully make changes to the planned trial team. The original lead attorney stayed onboard for the case, but took a secondary role in presenting the case at further research and at trial. This solution was a winner for us, and our attorney clients; we never want to embarrass anyone in front of their clients or hurt their client relationship. But, we knew that the ultimate client would not be well served unless a change was made and we had a duty to the end client to ensure that they were properly represented. Melissa had to handle the entire situation given her role as Director of Research and Sr. Partner at Magnus. But, with something as sensitive as this, both of us, in counsel with others on the research team, discussed and agonized over the best approach to a difficult message to be communicated. It is extremely rare when such a thing happens, but it happens. In at least 2 other instances we were in the uncomfortable position of reporting that the lead attorney was unprepared, and, perhaps unable to effectively represent the ultimate client. These 2 scenarios played out differently, but were handled as smoothly because of the egos involved. Answering to more than 1 client in the same matter certainly has its challenges!
The majority of Magnus’ clients are attorneys who have super sized egos. Some of our clients’ egos are well deserved, in that they are stellar advocates on behalf of their clients. Other attorneys seem to have a self conception that does not match their accomplishments. (I am well aware this happens among people in other professions, however, my clients are exclusively members of the legal profession.) I have been derided by attorneys who dare me to tell them something they don’t know, because, in their opinion, they know everything there is to know, not only about their job, but mine as well. When we have a dissonance between an attorney’s inflated view of himself/herself and everyone else’s view, based on having ascertained research participants’ confidential survey evaluations of the attorney’s presentation, I have a tough job explaining to the attorney and our mutual client the reason for this disparity. On the few occasions when this has happened, I consult another member of the trial team to inquire about the best way to broach the subject of whether it would be in the client’s best interests to replace the poor performer with an attorney who would be a more effective advocate on the client’s behalf. I approach this person in person or via telephone, instead of in writing, with an inquiry, “Have you considered whether Mr. Y would be better suited for the lead counsel role than Mr. X, based on the outcome of our research?” or something similar. It has always been the case that everyone who witnessed the ill prepared, poorly executed presentation is thinking what I am thinking, however, it has been my experience that no one other than me has the nerve to say the obvious, “If you continue with Mr. X as your lead counsel, you are likely to lose this multimillion dollar case.” I could, of course, take the easy way out by saying nothing and hoping for the best, but I have a professional duty to report my research findings accurately, regardless of what they are. Needless to say, being the only member of the trial team who is willing to confront the proverbial elephant in the room has its costs, including the loss of a client whose super sized ego is more important than his/her client’s best interests. Fortunately for me, these events are rare and even more fortunate is the fact that I have what it takes to stand up for what is right on behalf of my clients.