The definition of litigation support is expanding. How you source your behind-the-scenes team can make all the difference for your case.
Litigation Support Behind the Scenes
It’s not unusual for attorneys I meet to ask me what I do for a living (to be honest, I want them to). My answer is one they’re not generally used to hearing, particularly from someone who isn’t a lawyer.
“I do everything you can think of, and some things you can’t, to help litigators win in court and in adversarial negotiations,” I tell them. It’s amazing how often that starts the ball rolling on a matter that benefits their client and my company, both.
What do I mean?
As litigation support consultants, identifying and culling expert witnesses is the heart of what we do. But increasingly, litigation success is bolstered by other techniques: staging mock trials, conducting juror research and screening, polling the public, and planning and developing photographic, graphic, or video demonstrations that support a client’s case. Building the best possible behind-the-scenes support team is what IMS Legal Strategies is here for.
Here’s a peek inside some of our recent projects.
Insurance Issues; Expert Solutions
Two BigLaw attorneys called, looking for multiple experts for their cases. One needed experts who manage the underwriters and agents in the business insurance industry for a breach of contract case.
The other was an intellectual property matter, and the client wanted assistance evaluating the patent that was infringed by another party. They wanted to know how they could prove the fact of damages, and how we could estimate the value of that pilfered patent. The patent covered a business process or idea, as a lot of them do lately, so the dollar value can be hard to assess.
The insurance matter was an everyday request; many or even most of our biggest cases have had an insurance element.
On the IP matter, we found subject matter experts for the patented process, as well as valuation experts who are experienced at determining what a business idea is worth.
The cases may never see a courtroom; frequently, once we get depositions on the record, the case is effectively over; our adversary sometimes gives up, or often, settles for a modest or even trivial amount to end the litigation.
Beyond the Experts: The ‘Pretend’ Jury
Another service, more and more in demand: Organizing and staging mock trials so that clients can evaluate the strength of their case and, perhaps even more important, try out how various strategies will work for them in court.
There are always at least three ways a litigator can advance a case and, of course, the clients benefit from seeing how each of these approaches plays out in front of real people — the “civilians” we assemble as our mock jury pool.
One current case sounds simple, but perhaps it won’t prove to be. In a large city, an unfortunate gentleman was walking on the street when a tree branch fell on him, injuring him. He is claiming extensive brain damage, as well as injury to his eye.
Our law firm client represents the city and wanted to try a few different themes as to why the city was either blameless or minimally responsible. There is always a risk here, in front of a jury, that the City will be perceived as Goliath and the pedestrian as David. The jury might instinctively end up on the “little guy’s” team, regardless of actual fault.
Obviously, there are medical, municipal and even arboreal elements here. The job is to blend the experts and their testimony together into a credible whole that will legally clear the city and its officials.
Deep Water, Shallow Comprehension
In another case, the fight is over spillage from a deep-ocean oil well (not the notorious Deepwater Horizon case). Most important to our side was to make sure the jury understood the process. That is, how, exactly, does a deepwater drill work to extract oil from beneath the seafloor? We thought we could better explain the science with the right graphics and an expert to walk the jury through the story.
So, we went in search of the perfect storyteller (in the good, true sense of story) to clarify the technical detail underlying the legal dispute.
Play Ball!
Finally, a case that we have now put behind us, but one that enjoyably blended a law firm client’s interests with a passion of my own.
A lifelong sports fan, I was thrilled to get pulled into the legal dimension of a sports story—all under the cover of work. Two sports teams in the same U.S. city, which we’ll call “Metropolis,” were fighting a breach of contract case. My job? Help one of the litigants — the “Groundhogs” — build its case against the “Evil Bandits” (as you might guess, these are not their actual names).
The Groundhogs were aching for an opportunity to move to a new city—Gotham City, of course—and accused the Bandits of having breached the pre-existing contract involving the arena the two teams shared. A win would allow the Groundhogs a trouble-free, cost-free move to their new home.
The Groundhogs’ law firm needed a menu of expertise to build and sustain the case whose result could, in sum, translate to more than half a billion dollars to the victors.
Stepping up to the Plate: The Business of Sport
First, we needed an expert on the sports business to testify that the Bandits’ behavior, when the two teams were cohabiting, was a violation—not only of this contract, but of standard operating procedure in the industry.
Our perfect expert was a sports executive with a law degree, who had been through at least three contentious situations like this one, and who could place the blame solidly in the Bandits’ court.
Second, because the particularities of the Groundhog-Bandit contract were complicated, we needed a graphic display of who agreed to do what, and when.
Our client agreed with our view that the sequence of events was best illustrated with a visual timeline of the elements of the contract so that the jury could see and readily understand how, when, and perhaps why the Groundhogs saw fit to breach the contract.
We produced a clear, color-coded timeline.
Finally, we needed a sophisticated jury consultant to assist the law firm in identifying prospective jurors with hidden or open agendas — perhaps even rooting interests — that might thwart the Groundhogs’ case. It’s not always obvious when a juror holds a prejudice that might hurt our team; it’s the jury consultant’s job to help ferret that out.
Pulling the Team Together
Behind it was the need to locate the experts and then hire, coordinate and orchestrate all the elements of the client’s litigation support team. Some of the experts were new to us, since the case and issues were de novo, as the lawyers say.
All the while, we had to remember that the sports business world is a small one. Our opponents might also be seeking expert help, and perhaps even interviewing the very same expert candidates.
A subject-matter expert is a highly lucrative profession. Some consultants garner five-figure sums for a day of testimony. So, it’s essential to find and appropriately compensate the perfect witness for our side. This may entail interviewing a dozen to find and sign the best. However expensive the expert, a win will make good on the cost, often many times over — the big-ticket results dwarf even the steepest consultant compensation.
Settlement talks are common, but an expert also must be ready for trial, and will undoubtedly come into the sights and fire of an equally-well-prepared adversarial lawyer.
Working with our clients on these cases, I have seen for myself how a good behind-the-scenes team can make all the difference.
Learn More About IMS Legal Strategies
As a trusted partner through the full dispute lifecycle, IMS helps law firms and corporations secure the expertise needed to overcome complex challenges, elevate strategies, and achieve optimal outcomes. To inquire about expert advisory services, litigation support management, expert witness search, and medical experts, contact IMS at www.IMSlegal.com.
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