The formidable behavior, and increasing boldness, that has been seen lately from the plaintiff's counsel often has the effect of causing defense attorneys and their clients to operate reactively, merely responding to events as they unfold. Plaintiffs' counsel takes full advantage of a reactive approach to litigation and the inclination of defense clients hoping to avoid overpaying in a case they think will likely settle.

However, this type of wait-and-see response can quickly put the defense at a disadvantage. As the defense waits for plaintiff’s counsel to make the first move, they can suddenly find themselves on a timeline that is rushing by. Bravery often requires discomfort, and the defense can put itself at an optimal advantage by becoming more proactive. Developing a solid, proactive approach and utilizing the expertise of litigation research experts' consulting services can be powerful tools for reducing overall costs and improving outcomes.

How can trial consulting help legal teams exceed their goals?

Trial consulting experts can help defense attorneys assess their cases early, uncover opportunities to insulate their clients from devastating settlements and nuclear verdicts, and save them money. At Courtroom Sciences, we have helped thousands of attorneys maximize settlement and verdict outcomes via focus groups, mock trials, witness effectiveness training, and jury consulting services. 

A Proactive Approach Can Help to Assess and Manage Risk Effectively

Litigation can impose substantial risks and costs on the participants involved, yet there tend to be distinct differences in how plaintiff and defense attorneys assess and manage risk. In general, plaintiff attorneys are not trying to protect a client relationship, and subsequently, they may have no concern over shielding an organization's brand and reputation. Their main objective is likely just to win. 

Conversely, defense attorneys have many issues to consider, including tangible and intangible costs associated with the litigation, such as an organization’s reputation and ongoing relationship with the client. These considerations can impact how aggressively a defense attorney may be willing to fight against a more zealous opposing counsel.

Another risk to consider is any assumption that a case will settle. If, for some reason, a defense attorney finds their case unexpectedly going to trial, it may become significantly more challenging to fix any problems in the case, such as unfavorable witness deposition testimony.

Early litigation research can work to minimize the risk to the participants involved by producing valuable data that can be critical for driving settlement and trial strategy decisions. This proactive approach can be invaluable in allowing defense attorneys to handle a particular case in the most advantageous way possible. 

Implementing More Aggressive Tactics Could Be Advantageous For Defense Attorneys

Defense attorneys often base courtroom strategies on the goal of not losing rather than a focus on winning. Despite assumptions, effective, aggressive courtroom tactics do not require abrasive, unpleasant, or strident conduct. Experience has shown that the most cautious side often operates at a tactical disadvantage. 

Just as the likability of a witness may influence how credible a jury sees them, a defense attorney’s demeanor may also affect a jury’s perceptions. For example, if the jury sees a defense attorney as abrasive, mean-spirited, or unlikable, their aggressiveness may be perceived as a negative trait. However, if jurors perceive the attorney as likable and gracious, they may view the attorney’s aggressiveness as a more substantial commitment to securing a positive outcome for their client.

In determining when they should bend the rules or where to draw the line, defense attorneys may ask themselves, ‘Will this favorably influence the jury?’ Defense attorneys have an opportunity to be more proactive and more aggressive in their litigation strategy with the help of litigation consulting experts and questions about specific tactics can easily be tested in mock trials. Defense attorneys can better maximize settlement and verdict outcomes by utilizing these experts.

Bravery Can Deliver Superior Results

Litigation is often like a game or a sport, where the best defense is frequently a good offense. A quote attributed to Horatio Nelson says, “The boldest measures are the safest.” Defense attorneys willing to make bold moves can be more confident in delivering the best litigation outcomes in each case. 

Formulating the most advantageous approach to litigation necessitates having better data and superior insights to realize the best possible outcomes. Whether through exploratory focus groups or witness assessment and training, litigation consultants can get involved as soon as the case is filed. These early findings can guide the discovery process and be used to inform settlement negotiations. 

Every case is different, every venue is different, and how the plaintiff presents is different, so it’s essential to utilize litigation consultants on a case-specific basis. Courtroom Sciences can help defense attorneys achieve superior litigation outcomes by providing science-backed data that leads to actionable insights and predictive results. Speak with one of our experts to get started.

Key Takeaways

●  Developing a proactive approach, and utilizing the expertise of litigation consulting experts, can be powerful tools for improving outcomes.

●  Trial consulting experts can help defense attorneys assess their cases early, mitigate risk, and save their clients money. 

●  Defense attorneys have an opportunity to be more aggressive in their litigation strategy with the help of litigation consulting experts,

●  At Courtroom Sciences, we have helped thousands of attorneys maximize settlement and verdict outcomes via focus groups, mock trials, witness effectiveness training, and jury consulting services.