Most litigators understand the benefits of early case assessment. It helps their clients plan, among other things, budgets, discovery and strategies for resolving the disputes.
Early case assessment with a jury consultant yields similar benefits. Even if your case is not a jury trial or may never see a courtroom, jury consultants are useful in assessing many aspects of a case.
I should note that the term “jury consultant” should not be construed as a limitation on services. Some people call themselves “litigation consultants;” others, “communications consultants” or “jury consultants.” While most of us are experts in both juries and communications, we service all aspects of litigation regardless of whether it sees a jury, settles before trial, or is set for a bench trial.
Early case assessment by a consultant is critical in some cases, such as larger, more complex matters, but is helpful in all cases. Even on the lower-exposure matters, it helps counsel put their case into perspective.
Consultants generally put less emphasis on the business side of the matter and more emphasis on the storytelling/litigation/perception aspect.
Consultants can help organize witnesses, develop early themes to be explored in discovery and depositions, analyze venues and discuss case strategies. In addition, they can help with damage and case valuation, trial strategies, and even work with you prior to any mediation.
Including consultants early in your case can save you time and money and ultimately make your trial experience richer and more successful.
• Timing — Generally, after you’ve internally reviewed the case and you know you’re moving forward, it’s time to contact a consultant. Your internal review team will have put together your basic “lists” and “universe” of issues, people and budgets. That gives the consultant the parameters in which to start working.
At this stage, a consultant can help identify general case weaknesses or gaps in the story that need to be filled, as well as critical people and areas of inquiry with counsel.
Note that it’s not particularly helpful to call a consultant the day you receive notice of a claim. Save the consultant’s time and save yourself the money — wait until there’s a body of factual information to review but before critical decisions are made about strategy, themes or litigation risks.
• Witnesses — This is one of the most meaningful areas for which to engage a consultant early on in the process. Once a deposition is taken, it’s too late to “re-invent” themes or change the focus of the story.
Early work with a consultant identifies witness-specific weaknesses (demeanor, bad behavior, bad facts) as well as overall story strengths and themes. The weaknesses can be worked on prior to depositions, and strengths can be focused on during the discovery phase.
In addition, deposition preparation alone is critical. While counsel focuses a lot of time on the substantive aspects of a deposition, consultants can get in some early video training and make the necessary corrections before being memorialized for the record.
I’ve never met a witness who did not need any preparation. Even witnesses who have been deposed several times need witness prep, as each circumstance is different.
Another factor to consider is that the most experienced witnesses can come across as too slick. It’s always important to avoid the “I-have-testified-so-many-times-I-don’t-need-your-help” kind of attitude. Those witnesses do not take direction as well as the more inexperienced witnesses.
• Venue analysis — I recently had a client tell me that he valued my venue analyses more than those performed by his associates, because they just regurgitated jurisdiction-specific facts.
Consultants go deeper in a venue and analyze how a story or set of facts might be received. They talk to colleagues, comb databases and research the area.
In addition, most have been in hundreds of courtrooms all over the country, giving them additional insight into the courtroom processes.
They have also spoken with jurors after trial and know what they think about a host of trial activities, such as unclear experts, heavy-handed judges, argumentative attorneys, demonstrative exhibits and how each side is organized.
All of that information tells counsel where they’re going and who their audience is likely to be. Why wait until a month before trial to discover you don’t want to be there, having already spent tens of thousands of dollars in trial preparation?
• Trial themes and strategies — Even though trial themes can evolve over time, most often they are developed in early strategy sessions with consultants and the trial team, and are simply tweaked as the case progresses.
Those early themes are important in guiding trial preparation. Trial strategies depend on the players as well as the facts, and early involvement creates a more cohesive story generated from a holistic perspective: What will jurors think of this story? How will jurors react to this witness? How can we shift the focus from X to Y?
Your consultant may have been involved in hundreds of cases and likely will know what plays well versus what’s too hard of a sell, and what triggers high damages versus what can mitigate them. It’s much harder to change course most of the way through preparation than it is to start out on the right track.
• Mediation — This is an area in which attorneys are using consultants more and more often. Traditionally, counsel would only invite them to join the team after mediation had failed. But bringing in a consultant early on makes themes and strategies more developed, your case more persuasive, and witnesses more prepared.
That’s a winning strategy that can save time and money and avoid potentially unnecessary litigation.
Julie Campanini is the founder and principal at Trial Insights. She can be contacted at Julie@trialinsights.com. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.