Source of article 2's Company - Magnus Insights.
In the vein of prior posts, this is an attempt to clarify another misconception about what we do as trial or jury consultants. Usually in the context of an introduction, I hear what might be called “sales objections.” There are varieties of these objections, but one is this, if introduced as a “jury consultant” I sometimes hear a retort, “Well, we never do jury trials, we only _______.” The blank is typically either “settle our cases at mediation,” “do bench trials” or “resolve cases in arbitrations.” For the first one, see the prior post, Trial Consultants Are Not Just for Trials. For the latter 2, guess what, judges and arbitrators are people! Their decision making style may be a bit more legalistic than jurors’ style, or involve more industry knowledge and nuances, but as individuals and groups, they make decisions too. And, their decisions can be influenced by the style, nature, and focus of the lawyers presentations. The fact that judges and arbitrators can be influenced is obvious and any trial lawyer arguing a case in these forums will make every effort to present the case in a favorable way, or at least in a way that he/she, as the trial attorney who has lived with the case for years, thinks will be influential. That, however, is part of the problem. Just as with jury trials, lawyers sometimes develop blinders and they fail to explain important details. In these settings, it has also been, in our experience, that the lawyers approach the case more legalistically or technically than they do with juries. While well educated judges, lawyers, or other arbitrators (who are usually professionals in some field like construction or finance) have the capacity to understand technical issues, if the presentation can be expanded and enhanced, with examples, demonstratives, and other techniques, the outcomes can be improved. Further, end clients often want to know about likely outcomes. As a result, we’ve been engaged to conduct mock bench trials (using former/retired judges), mock arbitrations (selecting arbitrators qualified for similar arbitrations), and mock mediations (with, you guessed it, real mediators). By simulating the process, we learn, and our clients learn, likely outcomes, and how to “tweak” the presentation for the “real” arbitration, the “real” mediation, or the “real” bench trial. Not all jury consultants are fully qualified or have specific methodologies for such research, thus, they must be vetted accordingly. Our procedures, for example, have been refined over time. And, while there are many differences between mock juror research and these other simulations, with care, such simulations are extremely valuable to the trial team and their clients. If humans are asked to reach a decision, we can do research to simulate that process and devise litigation assessments and trial strategies from there. (For a related post, see https://magnusinsights.com/2017/03/identity-crisis-of-trial-consultants-part-3-jury-v-bench-trials-or-arbitration/)