How to Decide Whether to Settle or Go to Jury Trial? [Ep 127]
This episode join Elizabeth Larrick as she explores the decision-making process of whether to settle a case or proceed to a jury trial. This episode provides trial lawyers with actionable insights into evaluating jury trials by examining recent verdicts and settlements and leveraging the experience of attorneys familiar with key players in the case. Elizabeth shares how focus groups composed of non-lawyers can offer valuable perspectives, helping to understand jurors’ mindsets.
Look into trial preparation and risk assessment, focusing on the importance of evaluating evidence from a juror’s viewpoint. Elizabeth discusses the strategic use of focus groups in refining opening statements and provides a comprehensive view of weighing the risks and rewards of settling versus going to trial.
In this episode, you will hear:
- Decision-making between settling a case and going to a jury trial
- Importance of researching recent verdicts, settlements, and consulting experienced attorneys.
- Utilizing focus groups to understand jurors’ perspectives and attitudes.
- Trial preparation, risk assessment, and evaluating evidence from a juror’s viewpoint.
- Assessing trial costs, time commitments, and potential outcomes to guide clients effectively.
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Supporting Resources:
Related episodes on trial preparation: Ep 122
Episode Credits
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Episode Transcript:
Hello and welcome back to the podcast. I’m your host, Elizabeth Ric, and I’m glad that you’re joining me Today. We are back on our regular programming and tackling a pretty common situation, and that is having to [00:01:00] evaluate whether to settle or go to jury trial and using focus groups to help you, or at a minimum, right, getting into the point of view of the juror.
So let’s dive in a little bit into what kind of situation are we talking about to get specific, because this is a situation where you’ve got a case that has a decent, or what you might call an okay offer. You are coming up to trial. This is gonna be the setting where it actually goes. If you practice, even in many places, there are several settings before you actually have the official, okay, this is gonna be it.
So you’re coming up on this official, it’s gonna be it. Maybe you’re 60 days down the road, maybe you’re 90 days down the road. You’ve done all the mediations and you know you’ve got this okay offer. You’re getting a little bit of pressure from your opposing counsel. Your client’s really looking to you for a lot of guidance here because they’re not really sure, [00:02:00] but they’re not totally opposed to going to trial, right?
So you are like in this total middle position here, and you need to help your client make this decision, okay? But what we are not talking about. Is the case where you have no offer, right? So we’re not making a decision. We’re going, there’s not an offer here. Or the offer is just so low, it makes you laugh, right?
Like, okay, like that’s laughable. Like, we’re going to trial. That’s not what we’re really talking about here. Really sitting down to help make that decision about whether to settle or go to jury trial when you’ve kinda really got this middle position going on. And number one thing I encourage people to do when you’re in this situation is number one, do what we love to do most as lawyers, which is research.
Go and look at a verdict and settlement database and go look and see what’s happened right in the past year or two years. I’m always very cautious of people going like, behind the pandemic. Don’t do that. [00:03:00] Try to get things that are recent. And then of course, in your jurisdiction, right? So that’s gonna gather, right?
What’s kind of been going on in your jurisdiction or in the general area for your specific type of case, and what are the ranges of verdicts and settlements that you can find? The next piece of research I suggest that people do is go find lawyers who have been in trial with the same judge or the same defense counsel.
Now, we talked a little bit about this. Like how do we really get ready for trial prep in an episode? And I will put that link in the show notes where we talk about, okay, jury instructions are an okay place to start, but let’s really look at what are the judges’ rules. So really get set about what is actually gonna happen.
And, and in that particular episode, we talked about kind of. Like those rules can kind of sneak up on you, and that judge persona can really change the dynamic of your trial preparation and what you [00:04:00] can actually do in the courtroom. So that’s really important to know. If you’re gonna evaluate whether to settle or go to jury trial, what is your judge persona?
And then also what is your. Defense counsel, right? Like, do they let things go? Do they jump up and down and object every, you know, five minutes? And so that’s also really helpful just to get, again, we want to get things into your brain because what’s gonna happen is we’re gonna eventually turn to evaluating, but we need to put that information into our supercomputers.
And then, you know, always be a little leery of folks who haven’t been to trial in a couple years, like 10 years or more, right? We really need to have fresh information this day and age, especially knowing how quickly life changes and how quickly information is, is flooded into jurors. Lay people, right.
And things change so quickly compared comparative, especially before the pandemic. Okay. So keeping that in mind when we’re going and doing our research, and of course that’s [00:05:00] our, our, our other piece of research is asking, right? Non-lawyers going to our focus groups and asking, what do you think? Right?
Here’s the facts. And what do you think? Because in this particular space, we are getting outside of our lawyer bubble. Which is where we need to be because looking at evaluating jury trial, we want to make sure we’re looking and talking to juror Ro. So this is where we’re getting out of our bubble. And again, we’re talking about something short and sweet and just looking at what do they think about the facts?
What are their attitudes? About the situation. What are their assumptions they’re making about what’s happening to the people you know in the story that they hear? What are the main facts that they like? What are the main facts they don’t like? And I think one of the most important pieces we gather from focus groups, which is confusion.
Where is there confusion? And where are we maybe putting too [00:06:00] much information in and we need to pull it back? Or the opposite. We don’t have enough. We’re making this assumption. They understand a situation where we need to go in and explain it. And again, all this virtual focus groups are a place where we can go do this short and sweet and get that really that blink reaction.
Is that what you want? Because. Thinking about jurors who’re gonna get that blink reaction to your information, to that case statement that’s read by the judge. Where do they immediately go? Right. Are they immediately put off? You want to know that because that’s gonna significantly help. You know, what is it the burden that I had to get over?
Right? It. It’s not just a preponderance of the evidence, by the way, y’all we’re talking about what is already in the juror’s mind that I have to get them to go around or change. And there are a lot of times you cannot. Right. Like you can’t, right? There’s not gonna be anything, right? So you wanna know that before you take down that path and, you know, go to jury trial.
[00:07:00] So you’ve got this extra research right in your brain. And what I always suggest people do is number two is line it out, right? This specifically this, you know, line it out and make a list of good facts. Make a list of bad facts. Make a list of neutral facts, right? Mark Lanier here. Okay. So that’s what he does.
He sits down and he literally lines it up and, and literally writes it on a piece of paper. If you wanna use computer, type it out to compare. Okay? I also like to have kind of a list of what I call iffy evidence, and this is like if it comes in and it may not, right? So it’s very iffy. You’re not sure whether that piece of evidence is going to come in or not, and.
Will it be snuck in, right? If it’s negative, will it, will the, will the defense somehow sneak it in? And you really wanna make sure you, when you have a piece of iffy evidence that you write, you know, what’s your best case scenario and your worst case scenario, right? If the fact [00:08:00] comes in, what’s worst case scenario?
Is it that you lose or is it that you got some damage control? What’s best case scenario, it doesn’t come in or maybe it’s something you really wanna come in. Right. And how does that really significantly help you in your case with the juror? So having that kind of lining it out, and I really even say go as far as writing your order of proof, right?
Just make a list again, of witnesses and what will they cover. Right. And I always like to do this because it shows me where are the holes I may have, right? So thinking through where are my liability witnesses, where are my damages witnesses, do I have enough and what are they gonna cover specifically?
And does somebody need to do extra lifting for me, right? Because maybe. You can’t add any more witnesses. And that’s the other thing too, is like if we put our experts on there, right, what kinda lifting are they gonna do for us? When it comes down to filling in that? Jury [00:09:00] instruction, are we covering all of our bases?
You just wanna make sure that you’ve got that and don’t have any holes in there. And again, making sure, like with my list of bad facts, can I move any of those into the neutral or the good bucket? Now let me give you an example. So let’s say you have a case situation where you’ve got your safety rules.
Maybe you like to use your safety rules, but you got rule breakers on both sides of the aisle. You got a rule breaker on your client is a rule breaker and your defendant is also a rule breaker. Now you kinda got, okay, how do I switch that into a good fact? And even, can I or do I just, how do I neutralize that?
Because when we then have, both sides are rule breaking, it’s almost like they start to compare it and it’s not an easy slam dunk, right? There’s gonna be something that comes on your client and it’s like, hmm, okay, but how can I. Really either make this, these are two totally different things, or just neutralize it.
[00:10:00] And that’s one of those things you gotta figure out, okay, what kinda ding are we gonna take on that and how can we maybe possibly fix it? Now what’s important here is as well as go back and kinda look at, okay. Deposition wise, how do we fare in some of our stuff? Do we have any holes based on our testimony?
And again, always looking at, at this point too, looking at our jury instructions. Some of the claims that we have. Are we making everything? Do we have enough to get all the blanks filled in? Or whatever it may, maybe it’s clear and convincing that you need to have, but, and you, maybe you need to look at the law on that too, to make sure you’re actually going to meet.
What is happening, right. And you’re not just making a leap because many a times we will believe, oh, I got that deposition, I got that transcript. It’s super clear. What the defendant said is definitely going to be, you know, clear and convincing evidence that they disregarded right what was, and it’s like, eh, [00:11:00] it’s really not.
It’s pretty tenuous. Most judges are not gonna give that to you. And again, thinking through, you’ve already learned about your judge, so you can actually at this point, look at and evaluate, is this gonna come in or not? Am I gonna actually get this? Jury instruction, or should I just go ahead and like, no, in my mind, I’m gonna let that go.
And the other piece here that we do when we think about lining it up and you know, starting to evaluate is what are the costs? Like what time cost is gonna be to me in my office expert? Literally the expenses, right? What are expenses gonna be for a trial like this, depending on how long it is? And of course, at this point, now that you’ve really dived.
Into the evidence. Maybe you even outlined your opening statement, which I think is extremely helpful at this stage. So you’ve got your research in your mind, you’ve gotten the evidence, you’re lining things out. You’ve got a good grasp on what’s going on. Now is also a great time to do a second focus group because now.[00:12:00]
You’ve got that first one layered in, and you’ve got a really good grasp on how you’re gonna lay this out. With advocacy, with the persuasion, with the sequencing the way you want it. Now go to that second focus group with that opening statement and see what they think. Right? Are you getting there? And again, I always caution people, you know, when we have iffy evidence, we don’t take that to a focus group because we don’t want.
We wanna make sure we’re testing worst case scenario. We don’t wanna test best case scenario. We’re not doing focus groups to confirm what you already know. I mean, we’re testing our worst case scenario here, but again, thinking through like just be safe. Test what you know is gonna come in. But in this second focus group, again, we’re still talking about maybe even an hour, just doing that opening statement to see are they shuck and jivan with what you’re laying down, or are they not?
It is not, it’s just not, not the whole thing. So step one, research. Step two, line it out, evaluate, think [00:13:00] about it. Okay, and finally, step three, which is the point of view of the juror, which is stepping into their shoes, right? Putting on your juror hat and thinking, okay, if I’m sitting here and I’m hearing these facts for the first time.
Do I care? And don’t try to play the sympathy card here because it may be sad, but that does not make them move the needle when it comes to an amount of money. Sad doesn’t do it. Okay. Sympathy does not do it. And so be very careful about putting your finger on that sympathy button and thinking that that is actually going to persuade jurors it does not.
They we see sad. Terrible things happen all the time as a juror in a juror’s life on tv. So we don’t have a lot of sympathy. Okay? Bad things happen all the time. So if you’re hearing this for the first time as a juror, do I care about what happened here? Because most of the time jurors are sitting there thinking, how do I get out [00:14:00] of this?
I would much rather even be at work than doing this. Okay, so why would they care about it? And. If they do, are they going to give the amount of money you are going to ask for? This is kind of the hardest question. When I go and I help people get ready for trial, what is the number? And it’s always a challenge to think about what number.
Because you’ve got, you’ve been talking settlement, right? But now we’re talking about jury trial, and that’s a really important piece for you to figure out and go through this evaluation of, okay, if I’m a juror sitting here, and if it’s best case scenario, right? If it’s worst case scenario, what is that number that they may put in the blank?
And then is it worth rolling the dice? Because we think about it, and again, we get stuck in our lawyer bubble. And throw around some really large numbers and sometimes it’s just not gonna get there. And the reason why I stress thinking about it in the sense of you’re sitting in [00:15:00] this courtroom, you don’t really wanna be there, you’re hearing the facts.
You’re sitting with a bunch of strangers. What’s going through your mind and do you care? And this is not about asking your partner or your spouse or your friend or the knitting circle down at the church, right? It’s about thinking about really getting into that point of view of a juror not biased opinion of people that know it’s okay.
And being really honest about what that juror may be thinking about while they’re sitting there. Okay. And what distractions may be going on their heads too. Okay. ’cause we gotta fight all those things while we’re in jury trial. So let’s go back. And let’s walk back through this very quickly. You’ve gotten an okay, maybe a decent offer, but it’s not your number, the client’s on the fence about it, but they would go to trial if you asked ’em to, right?
You’ve got some decent facts, but you’re not really sure. What would be the rocket fuel? What would really drive a verdict here, you’re not really [00:16:00] sure. And you need to help that client decide. So step one, put on your research hat, right? Go out there, look at our verdict and settlement databases. Talk to lawyers who’ve been.
With this judge in trial recently and lawyers who have been against this defense counsel in trial recently, get that research and then go and do a virtual focus groups, spend an hour with some folks filling out the facts. Filling out what do they think? Well, they care about what assumptions do they make.
Number two then is with that move into lining up. What you got. Write out that order of proof. What are these witnesses gonna provide? Look at your evidence. Make your good, your bad, and your neutral list of facts. What can you move around, right? And again, what’s our iffy evidence? Maybe it’s coming in, maybe it’s not, but you really wanna look at.
Best case scenario, what my evidence looks like and a worst case scenario. What my evidence looks like and what are literally the expenses that I would have, the expense of [00:17:00] time and money to go to trial. Very important. You gotta be able to predict that and let your client know that they’re not surprised.
Another great place to run a virtual focus group where you are putting in your opening statement, you’re ordering things, you’re sequencing it, you’re putting in your best foot forward here. Not reaching for that iffy evidence in there, but putting in that best case. Scenario as far as sequencing and persuasion.
And then our last step, which would be sitting and thinking about what the point of view of a juror would be sitting in that courtroom, hearing your voice, talk about it. And the opening statement, and now you’ve gone through those three steps and they are time consuming, I will tell you. But you’re making a big decision here, right?
You’re going, this is going to trial, or you’re gonna settle the case. You need to have a good set of research before you can make that decision, because you’ve gotta get into the mind of the juror. You have to, because [00:18:00] that’s the one that actually makes the decision. Once you walk in that courtroom, you turn it over to them.
And do you have the tools, you have the evidence to help them reach the decision that you would like them to? And you know, once you have all this information, you can realistically evaluate what is the risk? Is this a case that they’re not gonna care about? Is this a case that they’re maybe gonna give a hundred grand?
Maybe they’re gonna give 30 grand. And we got an offer that’s better than that. But you can now properly advise the client and help them make the decision, but also give them the tools too. What are the expenses? What’s the time? What have other cases done? Which is what people always ask. So I hope that you found this episode helpful if you were on your journey of whether to settle or go to a jury trial.
And of course, right now. I am offering the [00:19:00] on demand. Set up your own DIY Virtual Focus group course. The link for that will be in the show notes, so please don’t try to drive and write this down, which is elizabeth larrick.com/online focus groups. Okay. Also, don’t forget to check the show notes for the other episode that we have about doing research for trial.
Okay. I hope you found this episode helpful, and until next time, thank you.