by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
Times have changed. No longer will in-house counsel approve every request outside counsel makes related to trial. Budgets are demanded and negotiated. Litigation team structures are scrutinized. Expenses of outside consultants are doubly scrutinized.
So, it is not uncommon for outside litigation counsel to propose that a mock trial is conducted only to have in-house counsel push back. Indeed, A2L recently supported a case with nearly $100 million at stake where in-house counsel was quite skeptical about conducting a mock trial.
Outside counsel made the case for a mock trial, and in-house counsel ultimately approved the expense and attended the mock trial. Like most instances when a client attends the mock trial, the value is immediately clear to them, but that that realization is until not after the fact. Once the actual jury trial was completed, not only did A2L's client win a complete defense verdict, they won substantial counter claims as well. A true slam dunk, thanks to the skill of the attorneys working for the defense and their secret weapon - a preview of unexpected areas of weakness and strengths of both sides.
Here was a typical example where in-house was skeptical about conducting a mock trial before doing one, convinced it was a good idea once they saw the mock deliberations and once the result came in, certain it was a great idea. This is not uncommon for A2L, and not all that uncommon for the high-caliber litigators we have the privilege of working with throughout the country. So, how can we all help doubtful in-house counsel appreciate the value of a well-conducted mock trial?
Here are seven reasons we believe in-house counsel should want a mock trial:
1. Risk/Reward: The process of litigation is expensive. The longer one stays on that course, the more it will cost. By identifying the case’s potential risk/reward earlier rather than later, you will be able to control the budget more rapidly and more wisely.
2. Evaluate Settlement Intelligently: Knowing the strengths and weaknesses of the case will help you develop a more focused approach, will improve the preparation of witnesses and depositions of opposing witnesses, and will help in-house counsel decide whether, when and for how much it makes sense to settle.
3. Negotiate with Strength: Most cases settle before trial, so the better armed you are during discovery and pretrial, the more strategic you can be during settlement talks.
4. Guide Discovery Efficiently: While many in-house counsel understandably prefer to spend “no dime before its time,” i.e., only conduct a mock trial when a trial is certain and imminent, conducting a mock trial before the end of discovery might yield greater rewards. That may seem counterintuitive because all the facts are not in hand, expert discovery is not completed, and rulings that may affect the nature and scope of the case are pending. However, it is a great advantage, while there is still time, to get a read on the case even in its skeletal form in order to guide rather than react to the way in which the discovery evolves.
5. One Early Bite at the Apple: Once it’s over, it’s too late. In other words, what if a particular type of expert or subject of testimony is seen as critically relevant and helpful to mock jurors – but you only find this out after the deadline? Then it would be of little use and frustrating. Mock trials often reveal this information, so why not get it when it could make the most difference?
6. Trial Strategy Alignment: Sometimes in-house counsel and outside counsel have different opinions about trial strategy, the importance of certain witnesses, and the need to spend money on certain items. A mock trial usually clarifies the issues and leads to agreement.
7. I.D. Major Problems Early: If the case is unwinnable or can’t be settled, the sooner you find out, the better. That way, you can make informed decisions. If anyone on the trial team is under the false impression that the case is better than it is, the mock trial will help clarify any misguided beliefs.
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- Big Changes are Coming to Jury Consulting
- A2L Voted Best Jury Consultants by LegalTimes
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