If you’ve seen the game show “Deal or No Deal” you may share my frustration when you see Howie Mandel asking contestants if they believe there’s one million dollars in the suitcase they have picked. Howie never tells the contestants that this belief will send them home with bubkis. Howie knows that the game isn’t about picking the winning suitcase. It’s about leverage and that’s why it’s the perfect analogy for settling lawsuits.
Like contestants on this game show, lawyers too get sidetracked by beliefs, mainly that they have picked a winner (or are stuck with a loser) and that winner (or loser) is worth X amount. This leads to the following scenarios:
The Black Eye:
Let’s take the recent verdict against the St. Louis County Police Department where a gay police officer sued for discrimination and retaliation. I don’t know anything about the inner workings of this case or attempts to settle prior to trial, but I bet that the plaintiff would have settled for far less than $20 million!
The jury foreman was quoted as saying, “If you discriminate you are going to pay a big price. You can’t defend the indefensible.”
Does this mean that every discrimination case is worth $20 million if it goes to a jury? Not at all. It means that in this case, there were too many bad facts, and the defendant’s determination to “defend the indefensible” in the courtroom justified the jury’s decision to punish them.
Was a $20 million verdict inevitable? I doubt it. Had the St. Louis Police Department conducted a jury focus group, it would have learned that its conduct couldn’t successfully be defended in court. This would have given them a golden opportunity to settle at a reasonable number without making headline news.
The Goose Egg:
A lawyer represented a woman in her early 30’s who tripped and fell at a store and suffered a serious neck/back injury that rendered her permanently disabled. Liability was clear but the plaintiff became addicted to painkillers, didn’t fully report her taxable income, and had a baby after becoming injured.
The Problems:
- The lawyer contacted me on the eve of trial.
- He wanted voir dire questions, thinking the “right” jurors (if they could be found and seated) could help him obtain victory.
- He wanted my opinion when it was too late for his client to re-think settlement value.
I told him I thought his client probably had too many strikes against her and that jurors could easily fault her for tripping and falling, getting addicted to medication, and choosing to have a baby under those circumstances.
The defendant offered $400,000 to settle. The plaintiff rejected it and lost the trial. This lawyer could have gotten an objective view early on with a cost-effective jury focus group. Had he done so and used what he learned as leverage, he likely could have convinced his client to take the deal and gotten even more than $400,000.
The Success Story:
My favorite settlement success story is one where my client, the plaintiff, did an online focus group before taking a single deposition. She was able to do so because her case was splashed all over the news and the allegations and defenses were well known. The defendant was aware that it could lose and was willing to agree to an early mediation. No one at that mediation expected the plaintiff to come armed with data showing what real laypersons thought about the case, but that is exactly what she did.
The plaintiff’s lawyer told me that this was the first time she had ever approached a mediation in this fashion. Each time the defendant argued its perceived strengths, she pulled out the data, proving that representative laypersons had considered and rejected those very arguments. She did that again and again until she left the mediation with a complete victory that vindicated her client, without ever having to take a single deposition. Not surprisingly, this lawyer is Linda Correia, who just received The Best Lawyers in America©‘s honor of being the 2020 Civil Rights Lawyer of the Year in Washington, D.C.
Timely jury focus groups are always money and time well spent. They are the best way to objectively gauge case strengths and settlement value. Even when the results show that your case is a likely loser, jury research is still a win-win: Either you make money on a loser, which is fun, or you avoid disaster, which is wise. And for those cases that can’t be settled, jury research can often convert a potential loss into a resounding victory.