What to do when you and your client don’t see eye to eye on trial strategy? Grit your teeth and figure it out.
The most recent episode of CBS’s “Bull” involves the “selfie injury” of a teenager, James Donovan, who was attempting to capture a selfie while sitting on the rooftop sign of a pizza restaurant. The sign breaks, the boy falls to the pavement, and is now a paraplegic. The restaurant is naturally sued, and its insurance company hires Bull’s team to handle the defense.
Next thing we know, there’s a settlement conference with Bull, Benny Colón, the plaintiff’s attorney, and Avery Kress, the senior VP of claims with Immunity Insurance, the carrier that’s defending the claims against the pizza restaurant. The settlement conference takes place at Bull’s consulting office (don’t get me started), and it becomes painfully clear that Kress is the only person in the room who cannot appreciate the challenges an insurance company will have defending a case with a tween boy in a wheelchair.
Plaintiff counsel offers $2 million; Kress offers zero.
Bull and Benny do their best to persuade Kress toward a more reasonable position, but she simply won’t budge. In the face of pressure from Bull and Benny to settle, she fires back:
This is a trial science company. I thought you were all about going to trial. I don’t understand [why you are wanting to talk settlement].
Trial consultants (a.k.a. jury consultants) are not just about “going to trial.” This is a misconception I’ve been trying to cure for decades. Yes, we will go all-in to help lawyers prepare for trial and present an effective and persuasive case. But we’ll also tell lawyers what the risks are and whether there are perception challenges that could make a jury victory extremely difficult. You don’t hire a jury consultant to tell you what you want to hear: you hire us to tell you what you need to hear.
In this scene, Benny and Bull have candid discussions with Kress about the risks involved in going to trial. Benny asks Kress to put herself in the jurors’ shoes and to appreciate the empathy that jurors will feel for James Donovan, a teenage boy in a wheelchair, and to set liability issues aside. Kress responds with a threat of taking her business elsewhere, to which Bull replies:
You’d rather give my company a million dollars and spend all of the other costs associated with taking this thing to court than give a crippled child $2 million?
Should every case go to trial? The answer is a hard no.
Should every case be evaluated based on the risk-benefit of going to trial? That’s a hard yes.
Your analysis should consider the costs involved in litigating the case. Contrary to what Hollywood would have you believe, complex commercial cases take years to go from pleading to verdict and the dollars quickly add up. And don’t forget expenses related to the appeal, which again, is almost a certainty in any complex dispute. The analysis should also evaluate the facts, the credibility of the witnesses, the strength of the legal arguments, and – this one is important – the persuasive power of the messages for both sides. While the facts and the law may very well be on your side, jury perception may not.
As Bull’s team meets to brainstorm trial strategy, Kress crashes the meeting and once again, makes it perfectly clear that she wants to focus on the law. Much to Benny’s chagrin, Kress won’t budge, so it’s time for trial, although it’s fair to say that nobody on the Bull team is thrilled with the idea.
Benny and Bull have a two-second strategy discussion about jury selection, where Bull informs Benny that:
… it’s not so much about selecting [jurors] as it is about de-selecting.
This is true 100% of the time. Jury selection is never about choosing the folks you like; it’s about striking the folks you don’t like. With so few trials making it to a jury, fewer and fewer attorneys have experience with jury selection. Consequently, many seek to identify the “good jurors,” rather than the dangerous ones.
If you’re thinking, “Well, of course I want good jurors!” here’s something to consider: If your line of questioning reveals The Best Juror Ever, what do you think opposing counsel will do (or should do) with his first strike? The Best Juror Ever just got a free pass to go home instead of a spot on your jury panel.
But if you focus your jury selection on de-selection, with any luck, you’ll end up seating at least a handful of folks you think will be open to your themes and messages. And if your panel doesn’t have anyone who scares your socks off, you’ve done okay. For the moment.
At trial, a surprise witness testifies that he was injured a year earlier when a chunk fell off the sign and hit him on the head. The restaurant owners compensated him, but also asked that he not report the incident to insurance or the police.
Because of that, the insurance company wants to walk out mid-trial asserting that it no longer has a duty to defend because of the owner’s fraud: The policy was renewed based on the restaurant’s false representation that it had not experienced any accidents in the past.
Bull’s team digs for something – anything – to help their train wreck of a case, which they can see ending in a big verdict against the restaurant owners, who may no longer have any insurance coverage. Taylor hacks into the Immunity Insurance email server and learns that the entire claims department wanted to settle the matter, but Avery Kress pushed on because she thought settling would open the floodgates for more selfie lawsuits.
Bull and Benny use this information to put Kress’ feet to the fire. They give her two choices: 1) Play nice, continue to defend the client, and settle the case for $4 million, or 2) walk away and get sued for bad faith by the restaurant owners. After all, her duty was to the insured, not to herself, and by rejecting the initial settlement offer she failed to do right by her client.
Kress may be stubborn, but she’s not completely stupid and questions why plaintiff would even want to settle considering everyone’s belief that the jury will come back with a big award. As expected, Bull has a perfect answer: Because his team found proof that James Donovan committed perjury on the stand (he claimed the restaurant owner encouraged him to take the risky selfie; In fact, the two had never spoken), they can use that as leverage to force the settlement. Plaintiff can either accept the $4 million, or face the judge and a likely mistrial.
Kress decides that settlement talks are a good idea, after all.
Once again, “Bull” takes plenty of dramatic license in its depiction of litigation, but they hit the nail on the head with these three nuggets: 1) trial consultants aren’t just for going to trial, 2) you risk a big loss even if the law is on your side, and 3) jury selection is really jury de-selection.
My thanks to the “Bull” writers’ room for carrying that water for me.