With so much at stake when a case seems poised for trial, it’s understandable that clients want attorneys and jury consultants with a history of winning in court. As a result, many clients – including insurance adjusters, in-house counsel and trial attorneys – will ask jury consultants about their “win rates.” However, providing a tally of your trial wins and losses is problematic in many respects, and jury consultants who do so not only risk misleading clients, but may run afoul of the codes of professional conduct.
What is a Win?
One issue with keeping track of “wins” or “losses” is that what is considered a win may depend on the circumstances of the case. Obviously, if you are representing defendants, a complete defense verdict is always a win. But, in some cases where liability is stipulated, a win may just be avoiding punitive damages. In other cases, a jury award less than the amount offered at settlement may be considered a win.
For example, in one high-publicity trial we were involved with, there was no dispute that the plaintiff required 24-hour care. The plaintiff’s family rejected the defendant’s settlement offer of $50 million, and the case proceeded to trial. Because the settlement offer was confidential, when the jury returned with a verdict of $5 million, close friends and family members reached out to offer their apologies for the “loss,” even though the defense was ecstatic with the result. Clearly, this demonstrates that a win is in the eye of the beholder.
The definition of a win becomes even more vague when consultants assist on matters for plaintiffs. Is a win any return of damages? Is it only if the damages award exceeds the economic losses? It really is almost impossible to define a win or loss in these circumstances.
Likewise, what happens when a case is resolved prior to a jury verdict? Should these cases be counted at all in the tally of wins and losses? Some would argue yes. For example, suppose a plaintiff drops his demand considerably following jury selection because the defense was successful in obtaining a high number of cause challenges, resulting in a jury that appears favorable to the defense. In this instance, one might argue that the jury consultant assisting the defense helped his or her client obtain a favorable outcome, and the consultant may count that as a “win.”
Still, it is difficult to operationalize what settlement amount is favorable or unfavorable, and that truly may be just a subjective evaluation by the attorney or client. Indeed, I have seen some in-house clients or insurance carriers very pleased with a settlement result, while trial counsel is displeased, believing the case was worth much less than the settlement figure. If that’s the case, then perhaps settlements should not count at all in a consultants’ win-loss record (Tell that to the consultant who helped seat an “A+ jury” right before a case resolves). Given that more than half of the cases we work on end up being resolved before verdict, this also makes evaluating our performance on verdict results alone problematic.
Further, if the definition of a win is amorphous, then it is an effort in futility to compare one consultant’s track record with another’s. For example, what value could there be in comparing Consultant A, who touts an 80% win rate for defendants, but includes settlements and verdicts below settlement offers, to Consultant B, who claims a 50% win rate, but only includes complete defense verdicts. When it comes to win-loss ratios for jury consultants, there is simply no way to compare apples to apples.
Not Predictive of Case Outcome
Beyond the difficulties of defining a win, any trial lawyer knows that good lawyers can lose cases and bad lawyers can win cases. The same is true of jury consultants. There are so many factors that influence the outcome of a given case – from the underlying facts and the credibility of witnesses, to the judge’s admissibility rulings and success of pre-trial motions, and even such things as the anticipated length or time of year of the trial, which could impact the jury pool.
To say that any given win or loss is the result of a particular jury consultant is actually quite preposterous, given the number of factors outside of the consultant’s control, and the influence of several other team members, including paralegals, associates, witnesses and trial counsel. No win or loss should ever rest on the shoulders of one person; it is always a team effort.
That said, a consultant’s role in jury selection and theme development is not to win the trial, but to help obtain the most favorable jury as possible that will be receptive to the client’s position in the case, and to help the client and trial counsel relate the case narrative in a way that will resonate best with the seated jury. It is about increasing the odds of winning the trial and gaining a competitive advantage – not securing the win.
Due to the difficulties noted above, any trial consultant’s win-loss record is misleading. It bears little indication of the training, experience and quality of the services provided, nor does it endorse the consultant’s ability to analyze a case, develop trial themes, elicit bias from bad jurors during voir dire, or identify bad jurors for cause and peremptory strikes, which are the key qualities of a competent trial consultant. Rather, a win or loss may be completely unrelated to the consultant’s abilities, and a high win rate could mislead prospective clients to believe that a win is likely in any given case.
Though jury consultants are not governed by the same Rules of Professional Conduct as attorneys, it is noteworthy that many states prohibit or restrict the reporting or win-loss rates by attorneys. Though the ABA’s Model Rules of Professional Conduct prohibits “misleading statements” in advertisements, without specifically referencing win rates (ABA Model Rule 7.1), some states have been more direct. For example, Florida requires that references to past success must be “objectively verifiable,” meaning that the subjective “wins” described above must be excluded (Florida Rule 4-7.13(b)(2)). Indiana completely prohibits communications containing “statistical data or other information based on past performance” (Indiana Rule 7.1 Comment 2), as does Louisiana, which completely prohibits “reference[s] or testimonial[s] to past successes or results obtained” (Louisiana Rule 7.2(c)(1)(D)).
The American Society Trial Consultants (ASTC), the only professional organization for trial and litigation consultants, has developed professional guidelines over the course of its 30-plus year history. Indeed, these guidelines have been recognized as embodying the “industry standards” for purposes of legal actions against trial consultants. Recognizing the misleading nature of win-loss records, the General Professional Standards clearly state that “The trial consultant does not publish a claim to a win-loss record.” (The complete professional code is available on the ASTC website.) Nevertheless, trial consulting is a self-governing industry, and those claiming to be consultants are not legally bound by these guidelines. Prospective clients may see consultants advertising their win records, but such statements ought to be a red flag.
How Do I Evaluate the Quality of the Consultant?
Prospective clients are better served by looking beyond win-loss records and evaluating and choosing a jury consultant based on the training and experience of its consultants, endorsements from former or current clients, and how the consultant(s) answer questions about their methodologies. Reviewing a firm’s redacted work product, or even reviewing blogs or articles written by the consultants can also be a good indicator of the competency and experience of any given consultant. For more information on choosing a qualified jury consultant, see our Insights blogs on Finding Value in Trial Consulting Services: It’s Not About the Price and our Two Part Series: All Jury Consultants are Not Created Equal: Do You Have the Right Consultant for Your Research?
By: Christina Marinakis, J.D., Psy.D. – Director – Jury Research
with Contributions by: Merrie Jo Pitera, Ph.D. and Jill Leibold, Ph.D.