by Ken Lopez
The best defense lawyers come to A2L with their toughest cases. This means that some of the cases that arrive on our doorstep are essentially unwinnable. Although the trial team won't often directly say so, they will say, “The client considers a plaintiff's verdict for anything between zero dollars and XYZ dollars a win." In these cases, typically, there is no good settlement position.
Our company is highly focused on winning cases. We just love doing it, and it is central to our culture. So it can be a tough adjustment for our team and our clients when we have to accept that we're going to lose.
Surprisingly, there is a real art to this. Here are the trial strategies we recommend when taking a case to trial and your goal is not to win, but to lose an acceptable amount of money.
- Test the case with a mock jury (to be sure you lose). All cases with sufficient dollars or issues at stake benefit from research in a mock trial process. This is true whether it’s a bench trial or a jury trial. Often, when you are listening to your mock panel deliberate, you hear a line of reasoning that may take your argument in a new and positive direction. See 7 Reasons In-House Counsel Should Want a Mock Trial and 12 Astute Tips for Meaningful Mock Trials and 6 Ways to Use a Mock Trial to Develop Your Opening Statement.
- Test the case with a mock jury (to know why you lose). It's often surprising to me how independent panels of mock jurors will reason through a case the same way. There are patterns common to almost all juries. However, it is actually helpful to hear multiple panels from a mock jury separately reason through a case and pick the same good guys and bad guys and apply the same set of values to decide the outcome. See 10 Things Every Mock Jury Ever Has Said and Webinar: 12 Things Every Mock Juror Ever Has Said.
- Test the case with a mock jury (to know how much you lose). I recall a test we conducted with four panels of mock jurors. We knew we were going to lose, but the client was comfortable with a verdict of less than $50 million. When all four mock jury panels reached verdicts of more than $100 million and largely followed the same rationale to get there, we decided to settle the case a few days later. See 4 Ways That Juries Award Damages in Civil Cases.
- Okay, if you're not going to do a mock trial, inoculate. That is, find a way to appeal to the common sense values, beliefs, and reactions that you expect a judge or jury to have. If that means saying your client is sorry, say so. If it means saying your client is sorry that it could not say sorry until now, do so now - sincerely. If you need to explain that the PR people forced the CEO not to apologize immediately, explain that. Your objective sometimes is just to dissipate the anger as much as possible to take away that desire to punish. It's best to do this in opening, not closing. See 6 Reasons The Opening Statement is The Most Important Part of a Case and 5 Ways to Maximize Persuasion During Opening Statements - Part 3.
- Concede liability. When the facts are inflammatory, I've seen our clients concede liability with an agreement that some facts won't be used in a damages trial. See 5 Things Every Jury Needs From You.
- Put the dollars in perspective. Jurors don't usually want to give people a windfall unless they are very angry. They want to do something fair. If the damages sought are enough to purchase the largest home in the United States, show a picture of that. If it is enough to buy 100 Ferraris, show a photo of 100 Ferraris. See 5 Trial Graphics That Work Every Time and [New and Free Webinar] 12 Things Every Mock Juror Ever Has Said.
- Acceptance is helpful. When everyone agrees that a loss is imminent, it can be really useful to focus the entire team's attention on mitigating damages. See 10 Criteria that Define Great Trial Teams and 7 Habits of Great Trial Teams.
- Negotiate a High/Low: This is an often overlooked trial strategy. In a difficult and emotional case I was involved in, I watched trial counsel employ a fascinating technique for managing a possible loss. Mock jury testing revealed that for a number of reasons, we were either going to win big or lose big, and there was little possibility of settlement. Our counsel cleverly negotiated with opposing counsel to set both a ceiling and a floor on damages. That is, our side would pay something no matter how the jury came back. However, if they hit us with a huge number, that would be mitigated by the ceiling. Ultimately, we won a defense verdict and we paid the low number.
Other articles about mock trial testing, mock jurors, damages, and trial preparation from A2L Consulting:
- 10 Criteria that Define Great Trial Teams
- 50 Characteristics of Top Trial Teams
- The 14 Most Preventable Trial Preparation Mistakes
- 5 Tips for Working Well As a Joint Defense Team
- How Long Before Trial Should I Begin Preparing My Trial Graphics?
- How Creative Collaboration Can Help a Litigation Team
- The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation
- Sample One-Year Trial Prep Calendar for High Stakes Cases
- 11 Problems with Mock Trials and How to Avoid Them
- 3 Trial Preparation Red Flags That Suggest a Loss is Imminent