All litigators want to win. Trial preparation is an ordeal that easily saps our physical and emotional resources at times. It’s natural, then, to want to surround trial preparation with as much positive energy as possible. But, how do you handle “bad news” about your case before trial? It will often determine the difference between winning or losing.
When we discover a “bad fact”, a negative piece of evidence, a hole in our case, a less-than-helpful witness — or any other item which would have a tendency to make our case look less winning — there’s a temptation to downplay such evidence in our trial preparation or not pay attention to it at all. With all that’s at stake we might want to bury our heads in the ground like ostriches.
That’s a sure-fire way to lose the case!
In Trial Preparation, Don’t Ignore Bad News…Actively Search For It.
Instead of avoiding bad news or downplaying it or explaining why it doesn’t matter, what we should be doing in pretrial preparation is seeking out bad news and then neutralizing it! Only by recognizing the bad news as the truly viable obstacle that it is, can we manage it effectively and work around it.
I conduct jury focus groups on every case, and have often been called in by other attorneys to create and run jury focus groups for them. When jurors for jury focus groups have been selected with valid criteria, and we know in advance that they are predisposed to be fair, it’s a bad idea to discount a conclusion by the focus group that’s inconsistent with our need to win.
Instead of discounting what they say, the trick is to dig as deeply as possible into why they say what they say so that we can discover the catalyst for the bad news we’re getting!
Jury Focus Groups Can Help Uncover the “Bad News.”
I did a couple of focus groups on a case involving a client who had been injured and then filed a workers compensation claim for an on-the-job injury. After she filed her claim, she was fired. When we did the first jury focus group, even though the jurors returned a verdict in our favor, they were reticent to award her money. Their reticence to award money seemed inconsistent with the verdict; as a result we might have been tempted to discount the jury’s failure to award money. But when we examined the motivations more closely, we discovered that many of the jurors harbored the assumption that she may have been fired because she was taking too much time off from work for her injury.
This was not the case. In fact, our client took virtually no time off.
Instead of just blaming the jurors for misunderstanding the case, we knew that we needed to add evidence into the case to plug up what we now saw as a hole in the proof.
Once we fully understood the nature of the “bad news” we had gotten — we were able to make a quick adjustment. We used as additional evidence a document showing a series of pay stubs that demonstrated our client was not using sick leave over the period of time after her injury. This simple adjustment in our evidence, as a result of hearing the bad news from our jury focus group, fixed a big problem in our case which we had not anticipated. The next time we conducted a jury focus group on this case, the jurors awarded substantial damages, and our confidence that we had a winning case increased.
So, when confronted with “bad news”, don’t hide from it. Acknowledge and fix it. Or neutralize it.
Avoiding the “Ostrich Syndrome” is a strategy for the Winning Litigator.