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Each year I’m faced with the decision which, if any, industry conferences to attend.  A shortage of time and money dictates that I cannot go to every conference I would like to attend.  Even if I could cobble together enough money to attend more conferences, my time is severely constrained and every hour spent at a conference is an hour that cannot be spent working for a client.

I’ve attended Defense Research Institute (DRI) conferences just about every year I’ve practiced, even though I’ve migrated committees from Young Lawyers, to Products Liability, to Commercial Litigation, to the Labor & Employment conference.  I’ve found these are well-organized and pretty useful.  I would recommend a DRI conference to colleagues.

A couple of weeks back, though, I attended a completely different kind of conference, which was an exponentially better use of my time.  I’m not going to discuss the specifics, because I was a guest and, unlike DRI or ABA, this industry group doesn’t maintain a website, publications and huge membership.  But it is precisely because of this concentrated scale that the meetings were so productive.

First, actual membership in the group is limited to in-house general counsel or legal staff members of companies in industries that routinely face the same or similar employment issues.  Actual members can bring guests who are outsiders, but membership will never be available to us “outhouse” lawyer.  This alone sets it apart from large industry or bar association conferences.  There are no sponsors or exhibitors.  More importantly, the conference does not become a “feeding frenzy” where hundreds of outside lawyers showboat or compete for the time and attention of a handful of in-house counsel.  There may be some marketing component to the conference, but it is low-key–limited to maybe buying someone dinner–and definitely not the focus or sole reason to attend.

Second, the group is smaller, but it is also comprised of industry leaders.  Sure, war stories are traded, but they tended to be fresh, relevant and real.  Because of the tighter group size, it permitted the agenda to be loose and unstructured in a way that permits the group to spend more time on topical topics.

Another advantage of the limited group size was that the actual members (and some of the guests) knew each other pretty well.  I observed that this led to a candidacy of the discussion that I would never expect to see at a larger group function.  Anyone who’s tried to build a better mousetrap by committee knows that familiarity breeds comfort which tends to lead to better end product.  That’s what it looked like to me, anyway.

It was a good experience; I hope I am invited back.  I would surely counsel anyone lucky enough to be invited to attend one of these smaller, more concentrated industry conferences to jump at the chance.

Ok, these are actually two separate “secrets.”  Think of the extra as a bonus.  As you’ll see, however, these are related and flow from the universal truth that pretty much every client likes to think and feel that he/she/it is the only client in your professional life and the only one you care about.

The first is: Be Responsive.  Whether you communicate with your clients by telephone, email or even text messages, immediacy or ASAP is the name of the game.  Obviously, if you can take a phone call (without violating the second “secret” of this post below) that is best.  If you can’t or your client initiates contact by email, I like to follow the rule of responding within 2 hours.  If it is not possible to respond substantively within 2 hours (very often the case), I like the approach of responding with an email that (1) acknowledges receipt of the client’s communication; and (2) promises to get the answer and/or provide a substantive response within 24 hours.  The important corollary to this policy is not to forget to follow-up with the substantive response within a day.  If you can make this a pattern, and follow it, it helps to lead clients blissfully believe they are you only–or at least most important–client.

Second: Be Present.  For some reason, I find it easy to shut off the world around me when I am with my 4-year-old daughter.  I like to think I’m completely present with her.  This helps me feel like, even though I work a lot and can’t spend as much time with her as I’d like, at least the time we spend together is high quality time.

I try to apply this same principle to time spent with clients, albeit for different reasons.  It’s not that my clients are adorable now and will some day grow up and become, if not less adorable, at least less available.  Instead, I try to put myself in my client’s shoes.  Anyone who pays a few hundred dollars an hour for my time deserves my complete attention.  That’s what I would expect, and that’s what my client should expect.  This means in most instances I do not, when with a client, answer my phone, check the stock market, read and respond to email concerning other matters, or use my iPhone to check the paltry stats on my blog.  In fact, I’m not adverse to leaving my phone in the car or turning off the ringer when I know my undivided attention will be appreciated.  The only exception is when I’m with a client and there’s down time and the client starts checking his or her own email.

I’ll admit it’s challenging to apply both of these habits.  In other words, it can be hard to quickly respond to calls, emails or text messages when I’ve elected to shut off or ignore my phone to be present with a client.  But it’s important, and if practiced with care, is bound to engender client trust.

It is my considered view that litigation lawyers fall broadly into two categories: (1) those that adequately prepare their clients to testify in deposition and trial, and (2) everyone else.  I have crossed both types of advocates and, without exception, lawyers who did not spend the time to properly prepare their client (or other witness) for testimony were corner-cutters most everywhere else in the case.  Like most defense lawyers, I eat corner-cutters for lunch.

There may be barriers to proper preparation of a client for deposition or trial testimony.  The biggest is usually the client.  Clients who are not often involved in litigation have a difficult time understanding the need for serious testimony preparation.  It’s time-consuming, expensive, repetitive, exhausting and generally irritating.  After all, these clients reason, I’m just going to be asked to tell the truth, right? How hard can it be?

Reluctant clients need to understand the importance of adequate preparation.  A deposition that goes bad, if it’s an important witness, can be a game-changing event in a case.  Fortunately, many clients will heed our advice and take testimony preparation seriously. 

Experienced lawyers differ on timing and methodology of testimony preparation.  I recently heard a “rule of thumb” of 2 hours of preparation for every anticipated hour of testimony.  This might work as a general guideline, though we seldom know beforehand how long a deposition is going to last.  I prefer allowing lots and lots of time for preparation, and scaling back the actual time spent based on the client/witness progresses.  Some clients/witnesses are naturally good at the process, others are not so good.  I like to think I know how to improve those who are not so good, and I’ve also developed various methods, which I might share later, for helping increase a client’s comfort level in giving his or her testimony.  Typically, practice alone—using credible mock deposition or cross-examination questions—makes a client more comfortable.  When a client or other witness is comfortable and relaxed, he or she not only gives better testimony, but he or she feels better about the process.  This, in turn, tends to build client trust in my skills. 

Our conduct in defending the deposition itself can also engender (or erode) trust.  Our clients need to know we’re there, alert and in control throughout the deposition.  Effectively maintaining control of the process, strategic objecting, etc. are subjects for other posts.  However, in addition to being alert, I think it’s important to maintain and convey a sense of calm throughout the deposition, even if opposing counsel is nasty or taunting.  I’m of the mind that it is preferable to terminate a deposition that has become uncivil (and seek a protective order), rather than subjecting my client to angry arguments between the lawyers.  It is rare, I’ve found, that a heated argument among counsel during a deposition will accomplish much beyond unnerving my client and leading to potentially harmful testimony.

Many of us give little thought to invoices we send to our clients.  Invoices are utilitarian and serve an important purpose, at least in a for-profit law practice.  Beyond being a routine request to be compensated for work performed, however, we tend not to give invoices much serious thought.  This can be a mistake.

We should expect that clients will examine with a critical eye everything they receive from their lawyer, whether it is an email, a copy of some work product, or a periodic invoice.  They may look for different things.  For example, a sophisticated General Counsel expects to see high quality legal analysis and skilled advocacy, while less experienced clients may limit their evaluation to whether what they receive looks professional and is free of grammatical or typographical errors.  But every time we transmit written material to a client we invite critical scrutiny of our skills and professionalism.  It is unavoidable.

With this in mind, we should begin to view our invoices, not as a purely utilitarian demand for payment, but as a kind of brochure advertising the quality of our services.  Changes in the way we present our request to be paid can enhance our clients’ trust, not only in our abilities as professional advocates, but also in the fulfillment of our ethical obligation as fiduciaries.

I can think of two billing habits that, if done thoughtfully and consistently, should enhance client trust.  The first coincides with most clients’ chief concern, second only to quality of representation: how much we actually charge.  Similar to my earlier “secret” #1 (Be Honest), it is no secret that, just as we owe clients a duty of candor, we only bill for work we perform at a rate that is reasonable.  That is obvious.  That is Ethics 101, right?

Billing that enhances client trust—the “secret” that is the subject of this post—goes beyond Ethics 101 and enters the more nebulous realm of added value.  I’m not a legal services pricing specialist (a vocation the ABA Journal predicts will soon be a BigLaw fixture), and I try not to over think this stuff.  Instead, I try to follow this golden rule: put myself in the shoes of a client reading my invoice and ask what would I be comfortable seeing and paying if it were me?

There is one absolute truism that seems to resonate with just about any client that is not a Fortune 1000 or larger company: they hate, hate, hate to be charged for telephone calls between the lawyer and the client.  Particularly irritating are billing entries for such telephone calls that last 18 minutes (i.e., .3) or less.  Only clients who work for giant companies that are basically in the business of being sued (i.e., insurance companies, large California employers) can stomach seeing this on an invoice.  Everyone else likes to think they can pick up the phone and ask their lawyer a question—or just shoot the shit—without seeing a $100 (or more) charge for it.  I get this.  However many times we might tell a client “I don’t have anything to sell other than my time,” it is guaranteed to rankle most clients when they are charged for a short phone call with their lawyer.  Sorry.

Now.  Don’t squander an opportunity here.  While I would reduce (or eliminate) the instances you actually bill clients for short phone calls with them, I would continue to ALWAYS record such calls on the invoice, just mark them “no charge,” or something similar.  This engenders trust.  It says to the client, “I am committed to you, I know you want to talk to me without seeing a bill for it and I am willing to go that extra mile for you!”

The second billing habit that can lead to greater client trust relates to how we describe the work we perform.  Just like Tupperware parties, three martini lunches and hiring of first year associates, the days of the simple “For Services Rendered” billing entry are long gone.  But I would argue it’s not enough just to describe a task.  For billing entries to contribute to building client trust, they should not only describe the task but briefly explain, in crisp, clear terms, why the task was necessary.  I think this is particularly important when the task was somehow occasioned by the opposition.  For example, don’t write “Telephone conference with opposing counsel re discovery,” when an equally honest entry would be “Telephone conference with opposing counsel re their request for additional time to respond to pending discovery.”

I also eschew legalese when drafting billing entries for nonlawyer clients.  This sends the message: “I want you to understand what you’re paying for.  I’m not trying to trick you with fancy legal talk.”  Again, this is calculated to gain trust.

I recognize these “secrets” are not brain surgery, or even secret.  But they were things it took me some time to figure out and I hope you find them helpful to your practice.

This is probably the easiest step outside lawyers can take to gain client trust.  Whether we represent a corporate defendant in a business or employment dispute, or an individual accused of a crime, every kind of client appreciates being kept up to date.  I try to resist the temptation to think that a hearing or filing was too trivial to inform the client.  This is especially important with clients for whom lawsuits are not a normal occurrence.  Unlike litigation veterans, these newbies are not yet numbed to the sturm und drang of a lawsuit, and like to feel involved at every turn.

Also, I find that if I make it a point to keep my client informed of just about everything that goes on, every development, I am far less likely to let something major slip by–say, the filing of a dispositive motion or a settlement overture–without alerting the client.  I’ve found surprises tend to be disfavored.

Unless a case is in front of a judge with some kind of “rocket docket,” there will typically be periods in the life of a case when it gets quiet.  Even when this happens, most clients still like to know you’re not asleep at the wheel.  One way to let your client know you’re still in the game is to drop a note (i.e., email or even a letter) giving them an “update.”  Even if the update is nothing more than a reminder of the next anticipated event in the case, coupled with a brief explanation of its significance, it lets the client know you’re still on the job.  A nice way to raise the goodwill quotient is to record the update as a “no charge.”  Just an idea.

Ok.  Since trust and honesty go hand-in-hand, this seems pretty obvious and not such a “secret,” right?  The problem is, I’m not referring in this post to the “Don’t-Commingle-Client-Funds-With-Your-Own-Money,” or “Don’t-Say-You’re-Licensed-To-Practice-Law-When-You-Were-Recently-Disbarred” brand of honesty.  Anyone who is a prospective or existing client assumes you’re licensed to practice and not going to commingle funds.  It’s not an opportunity to gain trust.

When I speak of honesty as an opportunity to gain trust, I’m referring to the candor that comes into play when lawyers pitch to get a client or to get a case, and the temptation arises to be overly optimistic.  For example, do you ever find yourself making statements like this: “There’s a good chance we’ll win!”  Or, “Don’t worry it won’t cost much.”  Or, “There’s a good chance we’ll win and don’t worry it won’t cost much!”

I’ve been criticized by colleagues because I’m not much of a salesman.  I try not to oversell myself as some kind of miracle-worker, and I don’t oversell a case, even if it’s a good one.  After all, every piece of litigation carries risks for both sides, particularly if it’s ultimately arbitrated or tried.

I’m not much on puffing.  But I do try to provide a candid assessment of the risks, strengths and weaknesses of a case.  I do this at the outset.  And then I try to do it as the case progresses.  I like to reassess at critical junctures.  A juncture can be critical because it represents a strategic turning point; more often, however, the opportunity (or obligation) to reassess arises because we are about to invest heavily in the case.  These junctures are typically: (1) before filing the action, (2) before undertaking discovery, (3) before escalating discovery or initiating depositions, (4) before filing or responding to a dispositive motion, (5) before a mediation or other serious settlement negotiation, or (6) before commencing final trial preparation (when things tend to get really costly!).

I’ll admit that complete honesty about the risks of a case and/or the potential expense has led some prospective clients to look elsewhere.  I have had prospective clients pass after my “pitch” wasn’t as sugar-coated as they hoped, only to have them contact me later after the lawyer they ultimately hired disappointed them.  I have not, however, had a client complain at the end of a case because I didn’t make them aware of risks or candidly discuss potential costs.  This is the kind of honesty I believe builds a client’s trust in his or her lawyer.

Another potentially thorny area comes when clients look to us for immediate answers.  Sometimes, when an honest answer is “I don’t know,” we are tempted instead to punt.  With mixed results.  I prefer, and attempt to make it a practice, to be candid if I don’t immediately know the answer to a question, and promise to find out.  Even if it’s a question to which I feel I should know the answer, I remind myself that we’re all only human, and a delayed but absolutely correct answer is better than a prompt, but incorrect, one.

A final thought: sometimes the challenge in being honest about the risks or expense of a case comes, not from any intend to deceive, but from a failure to be completely honest with ourselves about the “warts” of a case or what it’s going to cost.  We want for the costs to be reasonable and the odds of winning to be strong.  We want it so badly that we lose touch with reality.  But, as counselors of law, part of what we’re hired to provide is a reasoned, objective evaluation of the merits of a position our client plans to take.  We can’t do that if we’re not honest with ourselves.

 

I have previously written about the importance of maintaining a good rapport with courtroom staff.  If you are in a California courtroom, and you notice the clerk and other staff seem less . . . er . . . satisfied with their jobs, I might have an idea why.  The Daily Journal reported Wednesday that “[a]fter years of automatic pay increases for employees at courts across the state, budget cuts have stopped so-called cost-of-living adjustment pay increases at many courts.  Now some court administrators are considering reducing for freezing ‘step increases’ which are part of many employees’ union contracts.”  This is in contrast 3-5 percent annual cost-of-living pay increases in California’s largest courts in the years before the recession started.

I suppose in the pyramid of bad news, a salary freeze ranks below a layoff.  But the courts have already been through layoffs and furloughs and, as the cost of everything from housing to cars to groceries climbs, these employees will begin feeling poorer before too long.  The best of the bunch (i.e., the better educated, organized, more motivated) will likely scout out better employment.  Some who are loyal to a particular judge might also stay.  But a pay freeze isn’t going to make anyone happy and, as Lisa Major, Assistant General Manager of the Orange County Employees Association, pointed out, “[e]liminating step increases in general, if you’re looking at it from a human resources perspective, is never a good idea.”

Brace yourselves, California litigators, our courts are going to seem more and more like a chapter out of Kafka.

It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories.  Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling.  But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here.  In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition.  This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning.

Contention interrogatories provide an excellent roadmap to the proponents case.  If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case.  They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense.  If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.

Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses.  Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification.  Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.

This is not to say that I do not serve any discovery before the deposition.  In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset.  Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition.  This is not always possible, but it’s a worthy goal.  I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net).  Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case.

Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”

I was talking the other day with a young lawyer about, guess what,  the challenges facing new graduates.  This lawyer had just started a new job and I was telling him how fortunate he will be to get some first class mentoring during his early years of practice.  The conversation got me thinking about what the downstream impact could be of the drastically reduced hiring of brand new lawyers.  I’m talking now about lawyers who in another time and a different economy would get a job with a law firm or government entity for at least the first couple years of practice.  It seems like the news reminds us daily how this has changed and the market for newly minted lawyers is dismal.  Others remind us that this is not just a consequence of the recession, but a more permanent trend resulting from a change in our clients’ collective attitude about paying–even reduced rates–for neophyte lawyers to learn their trade. 

I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared. 

This is because the training and experience we receive in the first years are pretty important in our development as a lawyer.  Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing.  But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law.  I know there are respected bloggers who would take issue with this assertion.  And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop. 

I’m not talking about the ability or experience conducting legal research.  Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense.  What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain.  I’m referring to judgment about when to take a case and when to say no.  Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you.  Judgment about how to shape and deal with clients’ expectations.  Judgment about how to manage a client who is persistently untruthful about the facts.  Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide. 

It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time!  This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area.  But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.   

What will be the impact to our practice and profession from this training vacuum? It could be significant.  For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door.  Our shrinking, already overstressed courts will become a repository for even more meritless cases.  I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam.  Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.  

The real victims, though, could be clients.  Clients who are misled, overencouraged, underwarned or led down the wrong path.  Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist.  Or at least told that the odds of winning don’t look too good.

Enough.  I tend to dislike writers who do nothing but diagnose a problem.  A proposal for a solution, even something half-baked, is the least a writer should do. 

Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations.  As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation.  If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack.  If economics dictate that tuition needs to increase to make this additional training possible, so be it. 

Local, county, state and national bar associations should also help fill the void.  There is no shortage of continuing legal education programs, at least in those states which require it.  But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers.  I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students.   Perhaps these programs could be coordinated with pro bono opportunities.  I’m just thinking out loud . . .

 I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers.  It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training.  Not just sloppy lawyering or calendaring mistakes, but errors in judgment.  I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.

*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).

I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases.  They can also be useful in trying to estimate a potential adverse verdict range.  I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients.  It was only because my firm represented such clients that I was able to get this first-hand experience.

Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets.  Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.

The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend.  I’m most familiar with the mock trial exercise, so we’ll use that format.  This requires, at a minimum, a suitable space and mock jurors.  “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes.  If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate.  Suitable also means private.  While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place.  Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.

Mock jurors–where to find them?  If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury.  This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap.  I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like.  Be prepared, not only to compensate the mock jurors for their time, but also to provide parking.  Thought should be given to providing food, assuming the exercise is going to last more than 3 hours.  It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.

If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise.  However, you still must find jurors from somewhere, which means employees, family and friends.  This might mean biases will come into play.  While unavoidable, this biases must be “factored into” the results of the research.

If the budget makes it possible, I highly recommend involving a jury consultant.  While some research can be done without one, it will be far less focused and productive.  The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing.  Crucially, a good jury consultant will help synthesize the information gleaned from the exercise.  After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.

To provide a concrete example of how this might work, my last mock trial  lasted one full day.  The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m.  They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire.  My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement.  Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.”  Each side then presented about one-half hour of “evidence.”  This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence.  Some evidence was presented simply as “facts to be assumed.”  Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session.  Somewhere in there we excused the mock jurors for a brief lunch break.

Most interesting and informative was the post-trial debriefing session.  Certain important facts had been purposely withheld from presentation during the mock trial.  These were then revealed incrementally.  This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations.  We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.

There are countless variations on this approach.  You can eschew the evidence presentation and simply read facts the jurors should assume.  You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received.  There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations.  The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise.  In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.