Assessing Intangibles


This post is about assessing the intangibles of a lawsuit and factoring them into your preparation.

The first thing to realize is that trials are beauty contests. A significant amount of social psychological research has established that jurors form opinions about the case very early in the proceedings. Jury selection and opening statements are the two most important parts of the trial. If you have not convinced the jury by the close of opening statements of the righteousness of your cause, you will probably lose. For the rest of the trial, each juror is going to use the confirmation bias to seek facts that support his or her initial belief. Therefore, you have to assess what kind of story you can tell, and how that story compares to the story that the other side is likely to tell.

You also have to assess how likable your client is and how likable the other guy is. You have to be brutally honest in this process. You want to believe your client and thinking that he or she is going to be liked. However, any warts are going to be magnified intensely in the courtroom.

You also have to assess your experience and opposing counsel’s experience. In all likelihood, you have had very little trial experience. Do not be surprised if you are up against a more senior lawyer who also has very little trial experience. I have known senior partners who portray themselves as litigators who have never tried a jury trial.

Experience does count, however. So if your opponent has a lot more trial experience than you do, you have to take that into account. That does not mean that you will lose just because you lack experience. You simply have to factor in that the more experienced trial lawyer is less like to make mistakes that you are.

You can find out a lot about opposing counsel on the Internet. It is amazing what people disclose about themselves in social media, on blogs, in podcast, and videos. It is much more likely that you will get this kind of information about younger lawyers. The vast majority of lawyers in their 60s do not even know what social media is and do not want to mess with it. However, you can still research counsel through verdicts and settlements to see what kinds of verdicts, if any, they have experienced.

Another factor concerns the type of typical juror found in your jurisdiction. You need to think about your best jury and your very worst jury. Some cases lend themselves well to jury trials, while other cases would put a jury to sleep. Think about the kinds of people that live in your community, their political beliefs, their ethnicity, their religious beliefs, their interests, and their hobbies.

You also have to consider who the trial judge might be. If you have a judge assigned for all purposes, as is usually the case in federal court and in some state courts, you will have a pretty good idea of what you are facing. Make a few phone calls to colleagues about their experiences with your judge and learn as much as you can about his or her background, beliefs, biases, and attitudes. Judges are human just like everyone else and are not immune from cognitive biases and decisional distortions. The more you can understand how your judge processes information, the better you can assess what might happen in that court room.

Remember, the best way to win the game is to call it yourself.

Better still, change the game completely.

Douglas E. Noll
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro
A new online course in cutting-edge legal negotiation

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