6 Myths of Litigation Consulting

CSI - Courtroom Sciences Inc.

A number of commonly held beliefs and misconceptions about the practice of litigation consulting remain widely accepted among defense attorneys. These inaccurate views may prevent you from realizing the many benefits of litigation consulting, from mitigating risk to your clients to saving them money. Engaging with litigation consulting experts can help defense attorneys exceed their goals with proven research and expert support. 

What is commonly misunderstood about litigation consulting?

Six common and pervasive myths surrounding litigation consulting include believing you don’t need a mock trial, that your attorneys sufficiently prepare your witnesses, that it is only for high-exposure cases, it’s too expensive, it only occurs right before a trial, and that you already know the key issues in your case.  

Myth #1: We Don't Need a Mock Trial 

It's no secret that most cases never make it to trial. Instead, most cases are settled by a mutual agreement between the parties involved. However, the purpose of mock trials isn’t simply to function as ‘trial practice,’ and the results of a mock trial can be used in a few different ways, including:

●  Settlement negotiations - Realistic mock trial simulations allow mock jurors to deliberate over a jury charge to predict liability and the potential range of damages scientifically.

●  Case valuation - Rather than depending on gut instinct or previous experience, mock trial results can give defense attorneys and their clients a scientifically supported picture of what a case is worth, improving the likelihood that it can be settled for a reasonable amount. 

●  Inform trial strategy - If a case does make it to trial, mock trial results can be used to inform trial strategy. Mock trials can help attorneys understand how particular case issues, themes, arguments, and evidence are likely to be viewed by a jury, allowing them to make any necessary adjustments before trial.

Myth #2: Our Attorneys Sufficiently Prepare Our Witnesses 

Regardless of how successful, skilled, or experienced an attorney may be, a key reason why attorneys are not always successful in sufficiently preparing their witnesses is that the vast majority of mistakes that witnesses make are psychological errors. For this reason, psychology-trained litigation consultants can prepare witnesses in a way that defense attorneys cannot. 

These three psychological errors include:

●  Cognitive - This error usually involves the witness not fully listening to the question, misinterpreting the question, or not thinking clearly. Simply telling the witness to ‘listen better’ is typically not enough to overcome the problem. The witness requires training from a psychologist who can help provide them with a different way to think and process information. 

●  Emotional - This type of error often occurs when the witness faces manipulative questioning tactics used by plaintiff attorneys, including reptile attacks. These tactics can cause the witness to become defensive, angry, confused, or nervous. While providing the skills necessary to overcome these head games is often outside the skill set of attorneys, a qualified litigation psychologist can provide witnesses with the skills necessary to avoid falling into these traps.    

●  Behavioral breakdowns - Focused on nonverbal communication, this error involves the mannerisms and tone witnesses use in response to questions. However, nonverbal communication is another area where attorneys are generally not trained and where a litigation psychologist’s expertise is crucial.  

Myth #3: Litigation Consulting is Only For High Exposure Cases 

Many defense attorneys still believe the myth that litigation science services are only needed in high-exposure cases or they should only be utilized in cases where the monetary values are high enough. When in actuality, there is no ideal or right type of case or level of exposure that needs to be reached before engaging the services of a litigation consultant. 

One reason for this pervasive myth is that over half of all states have some form of cap on medical malpractice damages. Yet, any loss is still a loss that could negatively impact your client, and often the larger risk for a client is overpaying to settle a case. Litigation consulting services are valuable for a broad range of clients and cases. Even if a case doesn’t warrant doing a multi-day mock trial, a case could still benefit from a focus group or witness effectiveness training. Litigation consulting is an investment whose entire purpose is to help clients save money. 

Myth #4: It's Too Expensive  

Is litigation consulting too expensive when compared to an adverse verdict at trial? Is it too expensive when compared to a settlement offer that is too high? Litigation consulting is instrumental in providing defense attorneys with a clearer view of what the case is worth, allowing them to give clients a reasonable expectation of what to expect. This can help prevent clients and attorneys from being blindsided later on and having to either pay out a much higher amount than initially expected or realize that they settled a case for far more than it was worth. 

Ultimately, litigation consultants have one primary goal: to save their clients’ money. While litigation consulting requires a financial investment on the client's part, it is generally insignificant compared to the cost savings resulting from a favorable case resolution.

Myth #5: Litigation Consulting Only Occurs Right Before Trial  

Waiting until right before a trial occurs to bring in a litigation consultant can leave an attorney with little room to maneuver. It’s much better to engage a litigation consultant as early as possible to see the best results. Whether through exploratory focus groups or witness assessment and training, litigation consultants can get involved as soon as the case is filed. When defense attorneys involve litigation consultants before the discovery phase, they can help provide more help and guidance and gain insights critical for achieving superior litigation outcomes.

Myth #6: We Already Know the Key Issues in Our Case  

Although attorneys may know the key issues in their case, they don’t know how jurors are apt to respond. Defense attorneys may have settled on a critical theme or expect a specific piece of evidence to resonate with the jury. Still, without investing time in jury research, their assumptions are merely speculation. 

Every case and venue is different, and unscientific methods are inferior to a science-based approach that uses empirical data. Litigation consulting can help defense attorneys to acquire valid data and insights that can help with decision-making and remove conjecture and opinion from that process. 

At Courtroom Sciences, we understand that litigation consulting is critical for achieving superior case outcomes. Our litigation research and psychology professionals can deliver the appropriate and most predictive research programs, providing invaluable information that helps defense attorneys make informed decisions about the case.

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Key Takeaways

●  Several myths surrounding litigation consulting include: we don’t need a mock trial, our attorneys sufficiently prepare our witnesses, it’s only for high-exposure cases, it’s too expensive, it only occurs right before a trial, and we already know the key issues in our case.  

●  Engaging with litigation consulting experts early can help defense attorneys exceed their goals with proven research and expert support. 

●  Litigation consulting is an investment whose entire purpose is to help clients save money.

●  The litigation research and psychology professionals at Courtroom Sciences can deliver the most predictive research programs and witness preparation training. 

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