THE GOLDEN AGE OF LITIGATION PREPARATION

January 10th, 2012

We have all heard the laments of days gone by in every field. Old school journalists speak openly about “the old days” when there was “a code.” In litigation, new lawyers who struggle to get experience in jury trials get to hear experienced trial attorneys recount the days when they were at the courthouse more than the office. Interestingly enough, in the trial consulting field (or jury consulting field or litigation consulting field) this phenomenon appears to be backwards. “Back in the day,” we had not yet developed the sophisticated methodologies we have now built upon, we did not have the benefit of some of the technology we now have, and we were often engaged by the client far too late in the process to be of significant use. Even worse, because we were so unknown to people there were all sorts of misunderstandings about what we did, what the empirical basis for our work was, and how we did it. One of the most common meetings I went to was one where I explained to the attorney’s client why we were not redundant with the attorney.

But those days are very clearly over. And while the American litigator today can lament the time they will not get in trial but they will have at their disposal the most powerful and effective litigation preparation tools that have ever existed. Case strategy methodologies, witness preparation for video deposition, jury research such as community attitude surveys, focus groups, and mock trials, and trial presentation technology are all practice areas that have developed significantly in the last decade.

Take one of these tools—the mock jury exercise or mock trial as an example. I’ll never forget when I saw the cover article to the March 1, 2004 edition of the National Law Jounal. The article, “Mock Jury Exercises” by Barry Richard who was the NLJ’s litigator of the year in 2001, started off by saying, “The use of mock jury exercises in preparation for major commercial trials has increased dramatically in the past decade. The increase reflects a realization that mock juries offer the first meaningful source of data upon which to evaluate case themes, issues and key witnesses and to calculate settlement value. Properly used and understood, mock jury exercises can enable parties to make the right critical choices. Improperly used or understood, they can lead to disastrous results.” It was at this point that I realized the message of the Vanguard at the time was becoming mainstream. He then went on to say, “A general counsel for a corporate client once informed me that it was unnecessary to engage the services of a jury consultant to manage a mock jury exercise because his legal department would handle everything in-house. I managed to persuade him that it was a bad idea.”

Fast forward to the Summer 2011 edition of the ABA’s Litigation journal. In Senior Editor, Kenneth P. Nolan’s “Lies we Tell Ourselves” article, in a sub-section entitled “Avoiding Hubris” he wrote, “Use jury consultants, mock juries, focus groups. And don’t wait until the month before trial. If the case is worth it, hire them when retained and periodically employ them to shape and enhance your strategy. You’ll learn of flaws you never contemplated, problems you didn’t believe existed.” Clearly the word is out to the mainstream. Fast forward to today, busy corporate clients who can’t make it out to the venue to see the mock trial in person can watch a video feed on a secure Internet feed from wherever they can get a good broadband signal.

So the next time you hear someone lament how “back in the day” you used to be able to send a one page bill for “services rendered” to your client but those days are over think of where the glass is far more than half full. The fact is that the litigator who knows they should be proactive but often feels overwhelmed has more tools than ever at their disposal to give them the edge they always want.