No Bull: Difficult Conversations, Managing Expectations Are Key to Trial Success

Litigation is grueling in the best of circumstances. But even with strong legal claims, smooth discovery, and compelling evidentiary issues, one of the most difficult aspects of litigation is managing expectations and making unpopular decisions.

Jury consultants, including the Hollywood-created ones, invest their blood, sweat and tears into helping clients prevail. And many times, we offer our sage counsel by providing the trial team, the end client, and witnesses with a much-needed dose of reality. All of this plays out in this week’s episode of “Bull.”

“Security Fraud” involves the murder of Anthony Gibson, who was in the witness protection program after providing key testimony in a Ponzi scheme fraud trial. The man’s family is naturally outraged that the feds failed to protect him as promised and hires an A-list litigator, Walter Franklin, who happens to be one of Dr. Bull’s idols. (And yes, in case you’re wondering: we jury consultants would give our eyeteeth to work with certain litigators.) Franklin, naturally, retains Bull and his team.

As in most “Bull” episodes, rules of procedure fly out the window, discovery is essentially nonexistent, jury selection happens within seconds of filing the actual lawsuit, and Bull’s Magical Team of Unicorns once again solves a murder-mystery in the middle of a civil lawsuit. But let’s get straight to the takeaways:

Choosing the Best Storytellers

An important element in this week’s episode involves Bull’s assessment of the end client, the murdered man’s widow, Sherri Gibson. During an initial meeting with Bull and Mr. Franklin, Mrs. Gibson expresses outrage at the feds and anyone who played a role in her family’s demise (except her husband, that is). She doesn’t just want revenge; she wants the jury to give her a one-way ticket out of the country.

Dr. Bull knows their claims of wrongful death and breach of contract might be more attainable if the widow weren’t in the picture; he instinctively knows she’s not the best person to deliver their message. Bull and his team need jurors to believe that Mr. Gibson was a brave man who took a big risk for the public’s benefit only to be abandoned by the feds once they secured their coveted win. The key to getting there is for jurors to view Mrs. Gibson as a grieving widow, a concerned mother, and—the real kicker—likable. Which, unfortunately, she was not.

Sometimes, trial consultants (including yours truly) need to have difficult conversations with members of the trial team, including clients and witnesses. And that’s exactly what Dr. Bull did: he boldly told Mrs. Gibson that she was her own worst enemy, communicated his concerns privately to trial counsel, and suggested the victim’s daughter as a viable alternative. (We learn later in the episode that the daughter’s testimony came with a few hiccups, but jurors are generally more willing to forgive a hiccup or two if they actually like the witness.)

It’s really hard to tell a client, a named party, or a key witness that he or she is not the best person to impart a critical element of the trial story. This is especially true when the witness has an emotional connection to the case. It can also be uncomfortable to tell a client or lead attorney that the current plan is a potential land mine of jury perception problems.

But, as any lawyer knows, sometimes your highest and best use is protecting your client from themselves. Nobody on the trial team, including your jury consultant, should shirk that responsibility.

Assigning Trial Roles

Another dynamic the “Bull” creators wrote into the script involved assessing the effectiveness of who was handling what inside the courtroom. During the trial, Dr. Bull became concerned with Walter Franklin’s ability to effectively advocate for the client (with the obvious implication being that he showed signs of possible dementia). Although Bull could have kept his head down and hoped for the best, he once again chose to have a difficult discussion: this time, with lead counsel (and one of his idols). Bull expressed his concerns and—here’s where Hollywood distorts reality—Bull instructed the lead (and only) counsel to step aside and let Benny take over. And by “instructed,” I mean ordered; it wasn’t a mere conversation or advice to consider. (Obviously, decisions on assigning new lead counsel midtrial are not decisions jury consultants should be making. Include them/us in the conversation, but the decision should fall on the client’s or counsel’s shoulders.)

While I’ve never had that particular experience, I have worked on teams where the assignment of trial roles, duties, and the division of labor gave me pause. More often than not, my concerns haven’t been about who is assigned what, but, rather, why assignments don’t exist in the first place.

Unless you are trying a two-hour case with five exhibits, you would almost certainly benefit from having some help. Asking for help is not a weakness. While some clients fear that adding more folks to the team will be shunned by the end client, if you manage expectations early in the litigation process, your communication efforts can yield high results. End clients should know that you will assign others to the trial team—associates, another partner, even a jury consultant—but what matters most is that your client knows that you will always be at the helm, be the primary client contact, and will take a strong leadership role.

When you try to do it all, you are less effective at doing what you do well. Delegate. Choose reliable team members. Avoid the temptation to micromanage 24/7, with this caveat: always manage your team. There’s nothing worse than learning that the tasks you thought were being handled by others have been sitting on a shelf for weeks collecting dust.

Outside consultants often bring fresh eyes to case nuances the rest of the team may be too close to see. Therefore, as a trial consultant, I feel obligated to caution trial counsel about potential bumps in the road—whether that’s a problematic witness, delegation of duties among the trial team, or any other issue that could impact perception—and to provide suggestions for maximizing opportunities for success.

Does trial counsel always agree? Oh, hell no. But that’s OK. It’s trial counsel’s job to make the decisions. We consultants just aim to help everyone make more informed decisions along the way. 

This article was originally published by Texas Lawyer on February 20, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.