By Dr. Ken Broda-Bahm:
Perceptions can be tricky. Take the picture above for example: If you'll do something right now, I promise that you'll be amazed. Stand up from in front of your monitor and step back about 15 feet from the computer, and you'll see Albert Einstein turn into Marilyn Monroe. Seriously! The image doesn't change of course, but with the right distance your perception of it will suddenly shift.
I found perception playing a similarly important role in my work the other day. A client had asked me for an opinion on choice of venue. He had the option of three different counties: two were suburban with a high Republican population, and the third was urban with more registered Democrats. A plaintiff in this case, the client asked if it was true that the more urban venue would be better for him. My answer was, based on our data and experience, it is true. But then my perspective suddenly shifted, and I realized that in a larger sense, it doesn't really matter if it is true because it is generally perceived to be true. That might sound cynical, but what I mean is if this case is like the close to 98 percent of cases that settle before trial, then the perceived characteristics of the venue will matter far more than the actual characteristics of the venue. Siting the case in the perceived pro-plaintiff venue will serve as better leverage for a good settlement. Taking a look at the notion that when it comes to bad venues and cases that settle, perception is reality, this post offers some recommendations for looking at your venue with new eyes.
Bad For Defense Venues
Active lawyers are familiar with the wealth of commentary on bad venues, including ATRA's annual list of "Judicial Hellholes," a list which you might take with a grain of salt since it is offered to aid a legislative agenda. Recently, I came across an interesting report on the top candidate, Philadelphia, in Legal Newsline. The article quotes tort reformer James Copland describing a "disproportionate share of high dollar litigation" due to a venue in which juries "award exorbitant amounts to plaintiffs who are suing anyone - such as doctors or large corporations - they perceive as being able to pay."
The factors that go into a situation like that are complex, but can be boiled down to liberal ('let it all in') judges, a fast docket, and a population that tends to be skeptical of power and motivated to send a message. In particular, the report discusses data showing that venues with high unemployment and poverty rates are more likely to find against the defendant and award high damages. While the article doesn't cite Copland's data, the conclusion does square with our own research (described in this post) that tends to confirm that jurors who are economically stressed are also most likely to believe the worst about big corporations.
All of this has an obvious effect on settlement. When cases are aggregated and placed on a fast track in a favorable venue, then there is likely to be money on the table. In that case it is the threat of a potential jury rather than any actual jury that is driving the decision. That emphasis on perception and settlement can explain why, in view of a particular venue like the Eastern District of Texas, infamous for rewarding patent plaintiffs, a reputation can persist even when the actual decisions coming out of the venue are more varied.
Recommendation: Research Both the Perception and the Reality in Your Venue.
Research the Reality of Your Venue. Reality still matters, if only because we all still have that perception (...and that is probably the most post-modern sentence I've ever composed). What I mean is that it still pays off to research your specific venue, because that is what parties on all sides will look to in order to assess their case. While a conventional mock trial is not going to provide a statistically reliable picture of your venue, there is another option that will, and it is actually less expensive. A community attitude survey, using random selection and strategic questionnaire design, provides a valid approach to determining the strengths and weaknesses of your venue as they relate to your case.
Research the Perception of Your Venue. Just as part of your case assessment should look at the realities of your venue, part should also look at the perceptions. Beyond the broad popular sense of the venue that you and other lawyers share, it helps to dig a bit deeper. When you are working up your case assessment and preparing for mediation, it helps to look up verdicts in comparable cases in the same or similar venues. Those that show the pattern you expect can serve a useful demonstrative purpose during negotiations.
Ultimately, you want to rely on both broad perceptions and detailed investigations of your venue. As the picture above illustrates, sometimes the distant view and the close view can be as different as Marilyn Monroe and Albert Einstein.
Other Posts on Settlement and Risk:
- Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect
- The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials
- Assess Your Juror’s Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part One)
Photo Credit: Developed by Aude Oliva, M.I.T. and acquired via Purpleslog, Flickr Creative Commons