5 Common Litigation Consulting Misconceptions
You’ve likely heard some common misconceptions surrounding litigation consulting, some being that it is too expensive or is only useful for high-exposure cases. Movies and television shows have further contributed to an inaccurate view of what litigation consultants do.
Litigation consulting can help legal teams exceed their goals with proven research and expert support. Engaging with research and human psychology experts can help you assess your case early and maximize settlement and verdict outcomes via focus groups, mock trials, witness effectiveness training, and jury consulting services.
This blog will review some of the most common misconceptions about litigation consulting. We will uncover legal teams' opportunities to insulate their clients from devastating settlements and nuclear verdicts and save them money, no matter their financial exposure.
Is litigation consulting more art than science?
Most trial attorneys do not expect research to be predictive, with the common viewpoint that “jury research is more art than science.” In actuality, when conducted properly, these services are more science than art. At Courtroom Sciences, our focus on empirical research and scientific methodology, combined with our expertise in human behavior prediction and modification, has helped insulate companies from runaway settlements and nuclear verdicts for over 30 years. We also have helped thousands of attorneys scientifically predict liability and the potential range of damages.
Myth #1: We Don’t Need Litigation Consulting Because We Don’t Go to Trial That Often
With the trial rate in the United States at less than 3%, it’s clear that few corporations are taking their cases to trial. While most cases will settle without a trial, clients and legal teams need accurate data to make informed settlement decisions. Litigation consultants are hired to provide necessary insights to drive the decisions surrounding settlements and mediations, providing a science-based approach to data collection and analysis, and informing parties of their risk and outcome scenarios.
When organizations involve litigation psychologists before the discovery phase, clients have a better idea of the evidence that jurors find important and compelling. They can gain insight into what will resonate with them and better prepare jurors for the questions their witnesses will encounter during deposition.
Mock trials that occur before mediation involve cases clients never intend to take to trial and are conducted because clients need to know potential damage outcomes. Mock trials enable defense attorneys to predict jurors' decisions with scientific validity. This greatly benefits defense attorneys as they approach settlement negotiations, allowing them to more accurately determine how much a case may be worth relative to the demand from the plaintiff’s counsel.
When you have that knowledge earlier in the case, you may handle cases differently and can start to make more informed decisions. On the other hand, if you do a mock trial too late, you may leave yourself with little room to maneuver.
Myth #2: Our Attorneys Sufficiently Prepare Our Witnesses
‘What are you going to do differently that my attorneys can't do?’ is a question that in-house legal teams may have when discussing witness training prior to deposition and trial testimony. Attorneys and litigation consultants focus their skills and time on two separate things. Attorneys focus on the law and the overall case strategy, while litigation consultants focus on witness testimony, juror feedback and reactions, and their implications. Psychology-trained litigation consultants can prepare witnesses in a way that defense attorneys cannot.
Overwhelmingly, witness testimony goes poorly in one of three ways:
● Core cognition
● Behavioral breakdowns
These three fail points are all psychological, not legal. Behavioral experts can teach witnesses to control their emotions and demeanor for optimal performance.
This is particularly important now with the increase of reptile theory attorneys and the amount of psychological manipulation that is taking place both at deposition and trial. Even well-prepared witnesses on the substance of the case can massively fail during testimony if they don't have this additional neurocognitive training.
Myth #3: Litigation Science is Only for High Exposure Cases
Different clients will likely have different levels of acceptable exposure. There are Fortune 500 companies where $10 million isn't a lot of money, while for some mid-sized or smaller companies, even $1 million might be devastating.
Yet, even if you look at a case and think, ‘it’s only a $3 million case,’ consider how a loss could impact your client. It certainly won’t help. Even for “smaller” cases, you could do a 1-day basic mock trial and gain important information that could have a material impact on the settlement value, as well as the total litigation expenses associated with that case.
Lastly, witness training is worthwhile even if you can’t do a mock trial or focus group. Litigation consulting is an investment, and the entire purpose is to help clients save money.
Myth #4: You Only Need Litigation Science if You Go to Trial
Assuming your case will settle can be risky. Suppose a defense attorney finds their case unexpectedly going to trial, and they have unfavorable witness deposition testimony. At that point, it would be a challenging problem to fix late in the case. Enacting witness effectiveness training earlier would have been much more effective.
Whether through exploratory focus groups or witness assessment and training, litigation consultants can get involved as soon as the case is filed. These early findings can guide the discovery process and be used to inform settlement negotiations—the earlier, the better when engaging a consultant in the litigation process. Early research is critical for achieving superior litigation outcomes, allowing litigation consultants to provide more help and guidance.
Myth #5: We Already Know the Key Issues in Our Case
In many cases, attorneys and clients often know what the issues are. The problem is that they don’t know how jurors will respond to those key issues. Every case and venue is different, so it’s essential to get the answers on a case-specific basis.
For example, Asbestos litigation has been going on for decades. Both plaintiffs and defense bars are well versed in what arguments will be made on each side, but no one knows what will happen specifically in your case. Every injury is different and how the plaintiff presents is different, so you can’t just look at history to predict the future when it comes to litigation.
Courtroom Sciences knows that litigation consultants are critical for mitigating the risks that lead to devastating outcomes. Our Ph.D.-level litigation research and psychology professionals place scientific data at the heart of everything we do to deliver actionable insights and help you achieve superior litigation outcomes. Speak with one of our experts to get started.
● Common misconceptions surrounding litigation consulting include the idea that it’s too expensive or only for high-exposure cases.
● Litigation consulting can help legal teams exceed their goals with proven research and expert support.
● Litigation consulting is an investment, and the entire purpose is to help clients save money.
● Litigation consulting from Courtroom Sciences helps insulate companies from runaway settlements and nuclear verdicts.
Preventing Nuclear Settlements at Deposition