In a quarter century of working with attorneys as our clients, while conducting mock trials and other forms of research, we have observed some great attorney presentations, some average ones, and occasionally, fortunately rarely, some very poor presentations. One of the worst things that can happen in our world of conducting mock trials is that the attorneys do a bad job presenting their case. Of course, one of the reasons that a mock jury (or similar) exercise is undertaken is for the attorney to rehearse and refine a presentation. The bad ones I’m referring to, however, have been remarkable for other reasons. Several times, we have seen attorneys who were not ready to do their presentation because they were too busy to prepare. It is not uncommon for an associate to prepare a presentation, complete with a full PowerPoint display and a script, then hand it to the senior attorney to present. In one memorable case, the senior attorney did not see the presentation materials until he boarded a flight from Los Angeles to Fort Lauderdale. He had it in his hands for less than 18 hours prior to making the presentation, and it was a bomb. In other cases, the attorney does the best he or she can, but clearly, making a live argument is something some attorneys do better than others. For an attorney to make an argument in this situation is not easy; it takes skill, expertise, and experience. This is not something everyone can do. The worst of the worst for us in mock jury research is when the ill prepared or under performing attorney makes the opposing arguments, something which clearly skews the results. And, of course, it is difficult dealing with egos such that, relatively often other members of the attorney’s team avoid critiquing the attorney, especially if their clients are present. The last “what if” noted in the title, is what if the attorney is intoxicated? It has happened, more than once. Thousands of dollars are being spent conducting a mock jury. Millions of dollars are at stake, but we have had several experiences when the attorneys chose to turn the day out of the office at mock jury research into a party. The bottom line question in all of these is, what do we do, as trial consultants, to address these scenarios? The bottom line answer is “the show must go on” because our time, and the mock jurors’ time, has been bought and paid for in advance. Soothing the egos involved becomes part of the solution. And, privately counseling some of the attorneys on ways to make improvements is also handled to the greatest extent possible. But, sometimes it becomes our responsibility, as tactfully as possible, to report that the results of the mock jury were impacted by factors beyond the case, factors that are probably controllable by the attorney in some way. Stay tuned for an extension of this storyline.
Fortunately, the majority of attorneys who retain Magnus for one or more research services are professional in their conduct, including taking our role in their case seriously. These attorneys are the backbone of our existence and without them, we would not be in business. There are many more attorneys, of course, who are “average” in their role as advocates for their client, just as most people are “average” in the performance of their jobs, regardless of their career. The average performers in the legal arena sometimes have a case of the magnitude to warrant hiring us and we are happy to help them in any way we can. Then, there are the attorneys who, for a variety of reasons, perform at a sub par level, including in their preparation for participating in a focus group, mock trial, or other form of litigation research. When an attorney is ill prepared, the absence of preparation is obvious to everyone who hears his/her presentation, including the mock jurors or other research participants; the other members of the attorney’s trial team; my research team members and me; and worse of all, the attorney’s client. The examples David mentioned stand out in our minds because, in all of them, ample time was available for the attorney to prepare for his/her presentation, however, the attorney’s performance proved, to everyone who witnessed it, that almost no time was spent in preparing. Some of these attorneys perceive themselves as “big shots” who delegate every task imaginable to their minions. In that it is not possible to delegate excellent public speaking ability to anyone, these so called “big shots” look small, not big, when their lack of preparedness is revealed, leading some of the mock jurors to ask me, “Is that man an actual attorney?”, before listing numerous ways in which the presentation could be improved. It always amazes me to consider the amount of time and money that is wasted by an attorney’s lack of professionalism. Thank goodness these attorneys are in the minority in our consulting practice.