Add Your PerspectiveJuly 25, 2009
There’s something exciting about a war room as the big case turns toward trial, and ours was no different — witness notebooks, research files, box after box of “hot” documents, and a whiteboard with the latest graphic to explain it all. After days in that war room we began to wonder: Why won’t the other side settle? How could they not understand how bad their case was?
A Fresh Perspective from Down the Hall
One of the firm’s senior lawyers wandered by the conference room and asked a few questions to break up the evening. He listened to our quick pitch on the case, and sat down to probe a bit more. Our stories were followed by one of his own — an old case whose plaintiff sounded more like our plaintiff than not. The more we talked the better we understood where our opponent was headed. If we didn’t do something quickly, we’d be in for a long summer.
This site has explored why you might want to manage the other side’s expectations before, and that’s what we did here. We worked up the case we had originally intended to prepare, but we also focused the plaintiff on what his case wasn’t — now that we knew where he was going. It worked.
Get Different Perspectives with a Partner Focus Group
No matter how confident you are in your case, is the other side asking themselves the same thing you’re asking about them: “How could they not understand what a bad case they have? Where are they headed?” In other words, is there a silver bullet you‘ve missed?
If you and the other side value the case differently, at least one of you is wrong. How can you make sure it isn’t you? In significant disputes, whether at the Early Case Assessment stage or later, the best way to find out is to ask someone who might see the world like the other side does — or a few such someones. I have talked before about how companies might want to hire plaintiffs’ lawyers as their lead defense counsel under the right circumstances, but you don’t need to go that far. In major litigation I supplement my own opinions with additional perspectives on my dispute from experienced trial lawyers who have no reason to filter their comments.
The Elements of a Partner Focus Group
We’re not looking for a formal focus group here; we’re asking a few partners for the “visceral, personal, unscientific reaction[s]” described by Seth Godin — uncut insights into your case, from trial themes to settlement strategies to great questions to ask in deposition. In the past I have gotten there with a meeting that looks something like a very small focus group session, with these elements:
- 3 trial partners with varied backgrounds. Include a former trial judge if you can. In-court experience is a must, and real-world experience in front of your jury pool or an analogous fact finder will be a big help; subject matter expertise, such as experience with reinsurance disputes or technology cases, may be relevant in your case, as well; and experience on the side opposite yours is also a plus.
- Firms not connected to my case, either now or in the future. Law firms compete with one another, and your trial counsel may be worried she could lose this case to a member of the group you plan to convene; an explicit agreement that removes this possibility will encourage a more open discussion.
- A presentation on both sides of the case by my counsel. I have handled this the same way some jury research providers handle pretrial focus groups, including a one-hour(ish) presentation from the plaintiff’s side, a one-hour presentation from the defendant’s side, and a quick rebuttal from the plaintiff’s side, with all presentations supplemented by a handful of critical documents and other important evidence.
- Discussion of the case with me and someone else from my team. I’d like to have a cup of coffee, 1 on 1, with each of the lawyers serving on my focus group to get their immediate, uncut reactions to the presentation before we discuss it as a group — and there’s more time for individualized follow-up later, if needed.
- A joint brainstorming session about the case with all 3 partners and my trial counsel. Whiteboards, a round table and open discussion in front of your trial counsel on the underlying case can — will — generate the fresh perspective you need on your dispute. Have a promising associate there to take lots of notes.
I searched the Internet for “partner focus group” and found one of my own presentations and little else that’s helpful, so I have no links to add to this list of things that have worked for me. This can’t be new, so if you have formalized the process I’d like to hear about it.
Does It Really Work?
Does The Partner Focus Group really work? I think so, but I asked Peter S. Vogel, author of the Internet, Information Technology & E-Discovery Blog and veteran of a significant focus group session of mine a few years ago, for his perspective on the process. He responded:
I couldn’t have said it better myself.
To close, remember: This whole exercise is about differing perspectives. Use a Partner Focus Group to make sure your perspective isn’t off-base. You’ll be glad you did.