Benchmarks for Lawyers, part 1

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Benchmarks for Lawyers, part 1

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David H.Fauss Point of view In the business
world, the concept of benchmarks is well
understood. A benchmark is a way to measure
productivity and performance. A benchmark may
take the form of a production or sales quota.
But, when dealing with performance in a service
based practice trial consulting or practicing
as a lawyer conceiving of benchmarks or
measurements is difficult. It seems to me that
it is particularly difficult to measure good or
bad results for example, litigation outcomes,
because there is often no basis for comparison of
the results to know whether a specific attorney
achieved the best outcome for the client in a
settlement or verdict.
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Though an attorney or his/her client may be
satisfied, or even happy, with a settlement or
verdict, there really is no way to know, with any
degree of certainity, what result a different
attorney would have achieved on a different day.
The closest thing to knowing this is to conduct a
mock trial of some sort. Mock trial results
provide a benchmark by which to measure whether a
settlement offer/demand is favorable or whether
the verdict was a good one. In fact, it is for
this benchmarking reason that we are often hired
by defendants and their insurance company
clients. By obtaining a baseline measurement,
everyone involved in the lawsuit can compare and
consider resolution options within certain
parameters or ranges.
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I do not know whether insurance companies or
attorneys think of mock jury results as
benchmarks, but that is really what they are in
this context. (Mock jury results provide many
other things strategy, jury profiling, etc.,
but developing a benchmark is one aspect of the
results.) Such a benchmark can help the end
client know when the result is good and when the
attorney did a good job. For example, years ago,
we worked for a defendant in a commercial
dispute the jury returned a verdict in favor of
the plaintiff to the tune of 8,000,000. That
might sound bad, but mock jury results were in
the 25,000,000 range, so obviously the defense
attorney did something right and the mock jury
results could be compared to the trial outcome,
which reflected the hard work and skills of the
trial team. Absent a benchmark of 25,000,000,
an 8,000,000 verdict might have seemed bad, but
with a benchmark, it looked fantastic!
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Melissa Pigott Point of View Many attorneys have
asked me to provide a list of cases on which I
have worked that proved the case outcome was
improved due to my and my companys involvement.
As David points out, there is are no available
means for me to provide this information because
I do not know what would have happened in the
case absent my involvement. In addition,
although I spend a lot of time providing written
recommendations to my clients regarding ways to
improve trial strategy, there is no way I can
force them to adopt any of the recommendations I
provide.
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Sometimes, my company is hired by an insurance
company or another type or corporation because
they have concerns about their attorney and thus,
it is impossible to know what result might have
been attained if a different attorney had been
involved, or if the attorney and client agreed in
their assessment of the case weaknesses, or if a
different adjuster had chosen to settle the case
instead of going to court. My response to this
quandary, based on an attorneys desire to have a
guaranteed case outcome after conducting jury
research, is that, just as no attorney can
guarantee a certain outcome in any case, there
are no guaranteed outcomes derived from
conducting jury or other fact finder research.
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Instead, conducting jury, arbitration, or
mediation research provides a benchmark by which
to compare the actual outcome of the case. If,
for example, the attorney loses in the mock
jury research, but, after following all of the
advice I provide based on analyzing the research
data obtained from the mock jurors, wins in
court, then we can conclude the jury research
findings led to a change in trial strategy, which
then led to a positive outcome. This is the kind
of benchmark that, without conducting pre-trial
jury research, would not be available.
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Author Bio The writers Melissa Pigott and David
H. Fauss are the co-founding partners of Magnus
Research Consultants, Inc., and Magnus Graphics,
Inc. Magnus Research provides jury research and
trial consulting services for civil and criminal
litigation. Magnus research is customized, on a
case specific basis, to maximize the results of
litigation. Magnus scientifically evaluates
jurors or fact finders (arbitrators, mediators)
responses to case issues by using attitude
surveys, jury focus groups, mock trials, and mock
arbitrations to develop case strategies, themes,
voir dire questions, and more. Voir dire
consultation and witness preparation are also
available. Magnus provides Insights for
Successful Litigation. Magnus has worked on
cases throughout the United States, in both
federal and state courts. The Magnus team takes
pride in providing quality work. Please visit
www.magnusweb.com for more information.
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Thank You