Deliberations

What Great Basketball Coaches Can Teach Us About Trial Prep

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents.  I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court.  Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots.  If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents.

Like many of the best coaches, Dean Smith knew that effective preparation often meant stacking the deck against oneself in practice.  This mantra also holds true for trial preparation.  It is easy to assume that a motion will be won to exclude damaging testimony or evidence, but what if the judge decides in favor of your opponent?  What if opposing counsel is more capable than first anticipated or an expert witness handles his or her deposition swimmingly?  

In my opinion, the best planning must assume that everything will go very well for one’s opponent.  In witness prep, this means helping those who will testify by practicing difficult cross-examination questions with great intensity.  In mock trials and focus groups, err in favor of the opponent when it comes to planning case presentations.  In mediation and negotiations, have a strategy that realizes the other side (rightly or wrongly) may be even more confident in their case than you are in yours.

Ben Franklin famously said, “An ounce of prevention is worth a pound of cure.”  While he was actually talking about house fires, the idiom has lasted for centuries for a reason.  There is an exponential return on carefully considered preparation that imagines and practices a variety of potential negative outcomes.  By imagining your opponents with brooms in their hands, you will be sure to arrive at the game with a perfect fade-away jump shot. 

Blogger: Matt McCusker

 

Don’t Call Me Fluffy: One Perspective on Mock Trials

As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community.  At times, trial attorneys question the necessity and even the validity of some trial consulting techniques.  Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work.

In my opinion, this is not an accurate description.  While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing all collected data is crucial to providing well-founded recommendations.

Sometimes, trial attorneys have been encouraged towards “do it yourself” mock trials or have attended workshops where abbreviated and truncated litigation focus groups are demonstrated by their faculty.  This has potentially left an impression that these demonstrations, often using actual case content, are templates for valid and reliable pretrial jury research.  However, these demonstrations do not show the detailed analysis that most consultants give the data they collect.

Typically in mock trials, 3 or more panels of jurors have been recruited and subject to extensive background questionnaires to get a sense of their attitudes, beliefs and life experiences prior to hearing about the case.  Next, these participants are shown detailed case presentations with exhibit books and asked who they favor throughout the day (Plaintiff?  Defendant?  Is there proximate cause?  Etc.).  Then, armed with a treasure trove of information, litigation consultants can analyze the results and search for associations between opinions/experiences and case leanings.  Both qualitative and quantitative analysis are often used to glean the most useful information.

Unlike some services offered by litigation consultants, mock trials fall into a very specific set of social science standards and practices.  Careful research methods must be maintained to ensure that clients are provided with  quality results.  According to the American Society of Trial Consultants Small Group Research Practice Guidelines, when discussing mock trial research with clients, consultants shall:

(IV.D.) “Communicate to the client the research methodologies employed in the study design, juror-participant recruitment (insert footnote), data analysis and reporting of research results.”

Accordingly, I believe it is very important to explain the mock trial process to clients so they understand what data is being collected and how it is being analyzed and interpreted.  Without this communication, clients may be confused about the reliability and validity of the recommendations that are reported.  For example, if certain questionnaires that are filled out by jurors are never really analyzed, I would be uncomfortable presenting a report that suggests these questionnaire results were part of the report development.

In my opinion, strong mock trial recommendations should be the result of carefully analyzing all of the information gathered.  While litigation consultant expertise/experience is also a vital component, I cannot allow myself to leave any data by the wayside.  Instead, everything from initial questionnaires to exit interviews serve as important pieces of the puzzle that eventually transform into recommendations.  Otherwise, clients may actually be purchasing the “fluff” the detractors try to say this field is selling.

Blogger: Matt McCusker