These days, only a very few cases can be said to have an unlimited litigation budget, but some still do. As the amount at stake in toxic tort, technology patent and product liability cases soars into the billions of dollars, we do hear from clients that they must win at all costs. Indeed, at A2L Consulting, it is common for us to work on multi-billion dollar disputes. Thus far in 2012, we have already consulted on cases with over $30 billion at stake.
In this two-part series, we share the menu of options available to a law firm and its client in situations at the opposite ends of the litigation consulting budget spectrum. What is possible when budget is not an issue, and what is possible when budget is severely constrained?
By far the biggest difference between unlimited budget cases and limited budget cases is the amount of time that can be devoted to the discussion and testing of alternative strategies.
There are three key areas of trial and pre-trial work: trial consulting, litigation graphics and courtroom technology support. A high-budget case can involve several trial consultants, a dozen or more artists, hundreds of demonstrative exhibits, several mock trials, months of work and an overall onsite litigation consulting and trial technology team with between four and 12 people.
In trial consulting, the goal is to try to reach a successful result in a trial by testing and refining various components of the case to see what works and what does not. The core of this work is usually the mock trial. Most mock trial exercises involve either one or more retired judges or 30 to 40 mock jurors. In an unlimited budget case, we might perform the following services:
- Early case and theme assessment with production of a wall-sized litigation mind map
- Assistance in the development of mock openings and the preparation of mock trial graphics for both sides of the case
- An actual mock trial with “jurors” from the trial venue representative of the jury pool who will hear the evidence and come up with a “verdict”; this can be repeated several times
- A mock voir dire, showing attorneys how to pick the best jury
- A juror questionnaire (if approved by the judge) to test attitudes in the potential jury pool
- Work with expert witnesses to help them with their presentation and evaluate it with video and develop “jury friendly” graphics for complex concepts supporting these expert witness’ testimony (while experts often bring their own visuals, these are not typically suited to a trial environment where lay people are expected to learn from what is presented)
- Background research on selected jury pool to determine potential influences and any ongoing or prior influential commentary occurring through social media
- A shadow jury or shadow judge during the trial itself, providing nightly feedback to help adjust the presentation and guide the development of the case
For litigation graphics, in an unlimited budget case, we would obtain ideas for graphic presentations not only from the trial team and from our own resources but also from the feedback of mock jurors or judges. This can take months. Graphics should ideally be tested in front of a mock jury, and when they are, very likely new ideas for graphics will be generated. When winning at all costs is a requirement, the litigation graphics approach should allows for the greatest volume of test graphics:
- With time and budget allowance, litigation graphics can be created by the hundreds and refined down to the most effective possible – a no holds barred approach to creativity leveraging the significant trial experiences of our litigation consultants and litigation graphic artists
- Development of sophisticated printed trial boards– with layered / interactive additions that potentially can be taken into the deliberation room and in the hands of the jury.
- Create physical models that can be handled and manipulated by the jurors
COURTROOM TECHNOLOGY SUPPORT
- Set up a secure war room for effective operation while on site for trial
- Assure effective equipment set up and configuration (often involving a pretrial site survey well in advance of trial)
- Help witnesses work through their direct testimony
- Build the trial database so that one of a million documents, video clips and accompanying transcripts can be displayed on a moment's notice
- Cut 30-second deposition clips from days long video depositions
- Develop new exhibits for cross and closing statements
Obviously, a level of service like this costs six if not seven figures, and only a few firms in the world are capable of it. It is not appropriate for every case, but when it is appropriate, even these seemingly high levels of expense can be very cost-effective in forestalling a verdict in the nine or even ten figures.
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