I like to work on cases that I care about.  Who doesn’t?!  Life is more meaningful when we spend it on activity that has personal meaning, right?  As a litigation consultant, I am faced with cases with facts that are obviously compelling, as well as others whose appeal is, shall we say, ‘non-obvious’.   What my kids ask me, though, is “are you working for the good guys?”

What a simple question.  “Are you working for the good guys?”  And how complicated.  But it is, at bottom, what jurors want to know, too.  And it is the challenge of every trial lawyer and every litigation consultant to find a path to “yes” when asked that question.  In morally ambiguous cases the answer may become “there are no bad people in this story, it is simply sad.” Or “these are good people who really lost their direction.”  But the challenge is to find a way to feel good about them.

My experience working with new attorney clients is that the first time we work together, like any ‘first date’, is a bit tentative.  I feel my way around their approach to doing things, and they learn my strategic ideas.  The second time is more fluid, as most second dates tend to be.  When we have an opportunity to work together a third time, we do it as friends and collaborators.

Several years ago a client/friend and I had a meeting about a new case for which he had sent me the documents for review, and at the beginning of the meeting I said “I really like this case”.  He burst out laughing and said that he knew I was going to say that, and he questioned whether I was seeing the case realistically.  What ensued was an extremely fruitful exchange of ideas about the risks of the case, the points of attraction, and what it will take for a jury to “like our case”.  What he realized (and now, years later, what he has come to expect from me) is that part of my task is to see the path jurors need to take to “like our case”, as well as the detours that will cause them to find against us.

As a determined optimist, I want to believe that a verdict in favor of my clients represents justice.  That is what juries want to believe as well, and the job of a litigation consultant is to assist the trial counsel to illuminate that path.  If I can’t find a way to make a positive verdict for my client feel like a good thing, I can’t expect a jury to.  Juries are extremely good at detecting authenticity.  Belief about the merits of our case, even with the conscious awareness of its flaws, is the tightrope we walk every day. Thousands of jurors have told me what they care about, and where the threads of tolerance are woven into the fabric of their beliefs and values.  We keep this knowledge foremost in our minds, from discovery to resolution.

So yes, kids.  I am working for ‘good guys’.  But the opposition might feel that they’re working for good guys, too.

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