How non-legal factors affect the value of your case
In our previous post, we describe the concept of Expected Value and how that applies to litigation, and argued that if counsel is in a position of solid understanding of the Expected Value of their case, they are in a position of strength during mediation and other settlement discussions. In this post, we’ll discuss the non-legal factors that ultimately affect the Expected Value of your case.
Before our discussion of the non-legal factors that affect the value of your cases, we have to concede that the largest determinant of the value of the case are the facts and evidence that will be presented to the jury. John Adams words in 1770 are as true now as they were then:
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.
To the extent there is objective evidence that has little room for interpretation, the Expected Value of your case is likely to have very little wiggle room. An example that comes to mind (although it was a criminal case, Expected Value here is on a different scale) is that of the insider-trading prosecution of billionaire hedge fund manager Raj Rajaratnam last spring. The crux of the government’s case was that Mr. Rajaratnam was receiving inside information from various people on various Boards of technology companies, and subsequently trading on that information. There were several “smoking guns” in the case, in which the prosecution was able to demonstrate to jurors that they had a phone-tapped conversation between Mr. Rajaratnam and an “insider” in which the insider gave Mr. Rajaratnam information coupled with trading data that demonstrated that Mr. Rajaratnam traded in or out of that particularly stock sometimes in the minutes after getting off the phone. Defense counsel attempted to demonstrate and argue that the information that Mr. Rajaratnam was receiving was public information anyway, so there was no insider trading per se, but ultimately the jury didn’t buy that approach and instead found Mr. Rajaratnam guilty on 14 counts of conspiracy and securities fraud, and ultimately sentenced to serve 11 years in prison.
More often, however, there is room to improve the Expected Value of your case in terms of your exposure at trial or during settlement negotiations. An area where Expected Value can be affected greatly is the area of witness performance. Here, we do not mean what the witness says on the stand per se, but rather the manner in which the witness delivers their testimony. Particularly in more complicated litigation such as IP litigation or securities matters, jurors are unlikely to be able to digest and comprehend complicated testimony, as they simply do not have the time to nor cognitive capacity for such an exercise. Ultimately, we want our jurors to understand our case, but the exercise of presenting that case through an expert witness testifying about complex technologies is akin to giving the jurors a crash course on a complex subject without the benefit of asking questions or forming a study group. It’s simply naive to expect jurors in these conditions to fully grasp the most technical and complicated aspects of witness testimony, which creates a serious problem for us… that is, if the jurors are not able to accurately understand complex testimony, what do they use to make their decisions?
Implicitly and sometimes explicitly, jurors will rely on their feelings of HOW a witness testified as much as on the testimony itself. Did the witness make good eye contact with the jury? Did they attempt to explain the information in a way that the lay person could understand, yet do so not in a condescending way or did they come across as a stuffy academic? Did the demeanor of the witness change from direct examination to cross examination? Was the witness fidgety? Perhaps the most important question… during cross examination, who won the exchanges, the witness or the adverse examining attorney? Jurors will score these exchanges, and during deliberations when they are trying to determine which side had more credible evidence, they will use these internal scorecards as their guides. Clearly, a lot can rest on how jurors simply feel about witnesses.
Obviously, another factor that is outside the legal aspects of the case is the actual seated jury. Although it’s theoretically possible to consider an Expected Value for any case, that value is ultimately determined by the psychological (note, not demographic) makeup of the seated panel. Clearly the Expected Value of a case goes up to the degree that plaintiff-friendly leadership-oriented jurors are on the panel, which is exactly the reason why they should be identified and struck from the panel (if you’re a defense attorney). The question is how to effectively deselect the jurors that would increase (or decrease if you are a plaintiff attorney) the Expected Value of your case. That’s an issue we’ll tackle in another blog.
Let’s circle back to the concept of Expected Value and how that can be affected by non-legal factors. We can assume, rather conservatively, witness performance and the psychological characteristics of the jury account for about 10% each of the Expected Value of the case. Consider an example of a case where the exposure is $2 million, and you believe you have a 50/50 chance of winning the case, so the Expected Value is $1 million (EV = (.5 x $2,000,000) + (.5 x0$) = $1,000,000)*. If we are able to maximize the performances of our witnesses (which is possible) and our jury panel (which is possible, but more difficult), we may increase our chances of success at trial by 20%. The economic effect is not trivial, as our new Expected Value would be (EV = (.3 x $2,000,000) + (.7 x $0) = $600,000)). Maxing out our witnesses and jury panel in this example resulted in a $400,000 reduction in Expected Value. Even if we considered the effects of witness preparation and jury selection to be smaller, say 3% each, we would see a non-trivial change in Expected Value (EV = (.44 x $2,000,000) + (.56 x $0) = $880,000)).
In our next post, we’ll discuss how to more accurately asses the Expected Value of a case, with proprietary methodology developed by Tuholski Litigation Consulting.
* it should be noted that we appreciate that most litigation is not an “all or none” situation like those described in this and the previous post. We’ll address this issue more explicitly in our next post. For now, we want to keep the concept reasonably simple and easy to follow.
Tuholski Litigation Consulting, LLC is a full service nationwide trial consulting firm with offices in Oklahoma City and Dallas.