The Total Economic Impact™ Of IMS Legal Strategies The Advantage

Reduced Cost Of Witness And Expert Preparation

Evidence and data. Although many matters do not reach a trial, the preparation steps for those that do are incredibly important. Interviewees’ firms used The Advantage mock trial exercise data to better strategize for trial appearances. The exercise tracks jury leanings and reactions to key witnesses and experts. As such, the interviewees indicated that they were able to better prepare their witnesses for trial and make critical decisions regarding which experts should provide testimony. As witness and expert preparation timelines were especially thorough during trial preparation, and as experts themselves required compensation for trial testimony, the insights elevated through The Advantage saved firms time and money.

• The attorney at a small law firm indicated that The Advantage data and insights helped refine the team’s focus during expert and witness preparation and determine when to excuse certain experts ahead of trial. They said, “I think the way [The Advantage] helps us is that we’re homing in on [whether] we need to add a type of expert because of some jury confusion. It has also helped us decide not to call certain experts, which resulted in cost savings, [because] we said we didn’t really need to go down [a certain] path.”

• The same interviewee also found that they could eliminate experts and their fees ahead of trial in some instances: “With The Advantage, we got to sit and see what [the jury] reactions were to our expert and what he had to say. You worry that some of them will think he’s arrogant and don’t want to listen to him — and he’s being paid to be there.”

• This interviewee elaborated that in some cases, The Advantage indicated that certain witnesses needed more preparation work. They were able to provide that additional time by focusing on the challenge points: “There was a witnesses that we kind of liked and we thought he was very credible — but the mock did not like him. So we did additional prep with him to try and address those concerns.”

• The assistant general counsel at a utility company agreed that The Advantage tool enabled their litigators to identify what experts they needed quickly, which saved time, and avoid hiring unnecessary experts, which saved money. As part of a corporate legal department, the interviewee also indicated that they could reduce spend on outside counsel engaged to conduct research and identify appropriate experts for trials: “In terms of reducing spend with outside counsel, some of it is helping us determine which experts are necessary to retain. And so rather than having them do a lot of research and figure out what potential experts would be good, and maybe retain too many experts just because I think we need to be covered, we really are being focused on who we need to speak and what points we need an expert to speak about.”

• The same interviewee added that The Advantage had already impacted witness preparation, stating: “In terms of our own witnesses … there’s a huge roster of potential witnesses. Depending on how you want to build up your case, it has allowed us to decide which ones we really want to focus on.”

Modeling and assumptions. Based on the interviews, Forrester assumes the following about the composite organization:

• Litigation attorneys each handle an average of 15 matters annually. With 35 litigation attorneys on staff, the composite firm handles 525 matters annually.

• The composite firm’s strategy is to use The Advantage for all litigation matters where trial appears imminent, covering 4% of litigation matters.

• On average, each litigation matter required at least two experts for expert testimony prior to The Advantage. With The Advantage, it uses jury insights to focus expert preparation and eliminate 50% of unnecessary experts required for testimony, saving on the associated testimony costs. The composite firm assumes that each expert required for testimony is paid for one 5-hour day of testimony at $500 per hour, totaling $2,500.

• In addition to paid experts, witnesses also require preparation from the litigation team. The composite firm averages four witnesses per matter headed to trial. Witnesses and experts required 10 hours of preparation prior to The Advantage. With The Advantage, the preparation work focuses on key strategic themes to reduce the overall time spent on preparation by 20%.

• Attorneys reallocate 50% of the time savings to other trial preparation work.

• The average fully burdened hourly rate for an attorney is $140.

Risks. Reduced costs of witnesses and expert preparation may vary depending on the following:

• Firm size, litigation types covered, and attorney capacity all impact the volume of matters for which The Advantage is adopted.

• Individual matter or case details will dictate the expert and witness volumes required for trial as well as the cost of testimony and hours spent in preparation.

• Level of attorney, firm size, and geographical location will influence attorney hourly rates.

Results. To account for these risks, Forrester adjusted this benefit downward by 5%, yielding a three-year, risk-adjusted total PV (discounted at 10%) of $159,000.

Attorney Utilization Improvement To Accelerate Revenue For The Firm

Evidence and data. Prior to The Advantage, interviewees often thought of mock trial exercises as long, expensive processes that resulted in delayed insights in the form of a physical report. As such, it was difficult to incorporate insights during the mock exercise itself and utilize the data on an ongoing basis throughout the pretrial and trial process. With The Advantage, interviewees’ litigation teams aligned stakeholders and illuminated worst-case scenario outcomes during mock trial exercises so firms and organizations reached resolutions faster. Additionally, interviewees saw settlement rates increase and be more aggressive in value when they had The Advantage data to back them up. Reaching settlements sooner was not only good for firm reputations and client satisfaction but settlements also had shorter lifecycles than any matters that reached trial. Interviewees also made more effective use of the mock trial exercise itself by shifting strategies and angles based on the live data provided. Together, the time savings for attorneys meant they were able to dedicate more time to additional billable work and therefore recognize revenue sooner for the firm.

Attorney utilization improved in the following ways:

Faster, more effective settlements

• The attorney at a midsize law firm agreed that matters that used The Advantage saw faster settlements because the data helped both sides’ legal teams and their clients align on settlement amounts. They provided a recent example: “[A client] wanted to settle and had a [settlement] range … that I thought was good. The other side got greedy and wanted a lot more. Our verdict was for $9 million, we would have settled it for $10 million, [the mock trial jury] wanted $27 million. We thought … it’s probably worth $10 million to $15 million, so that was good.”

• The same interviewee expanded on the value of bringing clients along during the mock trial exercise to illuminate trends specific to venues and local jury leanings: “[The Advantage was helpful], especially for out-of-state clients that are less familiar with the venue. I have a client from California with a business in Texas. The Advantage served to reinforce what we were saying as far as … the worst possible case scenario. It proves what is possible. The jury can make decisions that are bad, and that can ring the bell for the client that this could be worse than they realized and they should get the matter resolved.”

• The attorney at a small law firm agreed that matters that utilized The Advantage settled quickly and typically for less money. They said, “[It’s beneficial to see] the data, in real live time — and not only seeing it with your eyes but actually seeing the numbers come through. You’re getting inside the jurors’ brains while you’re in the middle of putting on a day or two of fast testimony so that they can react to it. … That’s absolutely helped us better home in on how we’re going to focus on things at trial and focus in on … some great things we can emphasize at mediation.”

• The assistant general counsel at a utility company agreed that The Advantage helped reach resolutions sooner because the team had a better idea of potential outcomes, which impacts decision-making.

A more effective mock trial exercise

• The attorney at a small law firm noted that the live insights provided with The Advantage made the mock exercise more valuable as their legal teams could use them to make changes in real time. They said: “[The value of The Advantage] is in accelerating time to value, and then the insights are usable in the very focus group you have. I can see that I’ve got 10 jurors who feel strongly about something and don’t like it. Let me try [something else] and see if it is better on the next argument. I can fluidly move in my same focus group rather than speculate how I think [jurors] will respond if I change course.” They went on to explain that mock trial exercises were often expensive days for the firm as the legal team, including partners, junior partners, associates, and supporting staff, typically joined for the day, saying, “It’s an expensive day but it’s well worth it.”

• The senior associate, general counsel at an industrial organization saw the value of the real-time insights in terms of improved collaboration: “Everyone does live streams; I don’t see a lot of the remote people in the exercise using the dashboard like I do. We get data back, then we take that data in the moment and go to the next person up [on the team] and say, ‘We need you to work on this. They seem to be really interested in this issue.’ We get to retool our approach and take a more iterative approach to mock trials. So we still get a physical report, but we also have all kinds of intermediary data to go back and look at as needed.”

• The assistant general counsel at a utility company highlighted the digestible data and dashboard views as components of The Advantage that accelerated insights during mock trial exercises: “You can listen to what the potential jurors are saying in the focus group but have charts that quantify and physically show [the information] in an easily digestible fashion. It’s fantastic and very useful as we were going through the mock exercise itself, or during the jury focus group, to see the dashboard.”

Modeling and assumptions. Based on the interviews, Forrester assumes the following about the composite organization:

• Litigation attorneys each handle an average of 15 matters annually. With 35 litigation attorneys on staff, the composite firm handles 525 matters annually.

• The composite firm’s strategy is to use The Advantage for all litigation matters where trial appears to be imminent, covering 4% of litigation matters. The firm also adopts The Advantage for high-risk matters, where the reputational or financial risk is worth the investment of time and money in a mock trial process, totaling 10-15% coverage over three years.

• The goal for the composite firm is to settle as many matters before trial as possible to mitigate risk and achieve efficiencies. The average lifecycle for a matter that goes to trial is 27 months, while a settled matter averages 11 months. With The Advantage, more matters reach settlements ahead of trial, condensing the overall matter lifecycle.

• Additionally, The Advantage offers real-time insights that can be applied during and throughout the mock trial process to expedite that timeline and further improve the average matter lifecycle by one week.

• Total lifecycle efficiencies free up litigation attorneys to take on more billable work and accelerate revenue for the firm.

Risks. Attorney utilization improvement to accelerate revenue for the firm will vary depending on the following:

• A firm’s strategy for mock trial exercises and where it adopts The Advantage in terms of matter volumes.

• The average litigation matter lifecycle for matters that go to trial and those that settle ahead of trial.

• The tools and vendors in place prior to The Advantage to support mock trial exercises at a firm.

• Firm size, location, and legal areas of coverage will impact attorney billable rates.

Results. To account for these risks, Forrester adjusted this benefit downward by 20%, yielding a three-year, risk-adjusted total PV (discounted at 10%) of $1.6 million.

Unquantified Benefits

Interviewees mentioned the following additional benefits that their organizations experienced but were not able to quantify:

• More settlements and better valuations that impact the bottom line. For litigators within corporate legal departments, the impact of a settlement or trial verdict would hit their organization’s bottom line. It was therefore even more important that they settled matters ahead of trial and did so for an amount that benefited the organization. The senior associate, general counsel at an industrial company used The Advantage tool to reach more aggressive final settlements. They described: “If we know a plaintiff’s demand is $15 million and they’re not budging, and our exercise is coming back at $1.5 million at the top end, we say, ‘All right, we go to trial on that number.’”
  The same interviewee also noted that it encouraged the organization to verify internal valuations of cases: “One metric that might be measurable is: For the matters that we mocked, did the valuation change? And how did that valuation compare to the final settlement amount? For example, let’s say we had a claimant’s demand for $50 million, and internally, we had it reserved at $500,000. After the mock, we say it’s not good, right? We must move the number to $3 million, and we end up settling it for $3 million or $4 million. In this instance, we adjusted our valuation to better match mock trial outcomes but still did not have to reach the heights suggested by the claimant.” In this instance, the organization effectively avoided settling for the highest amount, saving the organization $46 million to $47 million in payout.
  The assistant general at a utility company agreed that The Advantage was beneficial in terms of trying to reach lawsuit resolutions sooner.

• Better trial outcomes. While real-time insights made for more effective mock trial exercises and influenced matter resolution strategy, in instances when matters went to trial, those insights were reevaluated in the context of the ongoing trial strategy. Interviewees found that mock exercise and jury profile data were more accessible with The Advantage than with other vendors as they had access to the dashboard in addition to a static physical report. As such, attorneys were able to adjust variables to better match the actual trial circumstances, including for the jury profile. The attorney from a midsize law firm stated: “We use the mock trial to skew the jury dynamic to see the worst possible scenario case. So when we get to trial, we can pivot our approach based on the actual jury. You must put it in a proper context, and you have to be able to pivot because fast forward to the trial, you’re going to use these people when you get your jury panel and do the social media background check and then again when you ultimately see who is in the box. You can go back to the exercise results and understand how a certain person might latch on to or react to something we present at trial.”
  The attorney at a small law firm agreed that mock trial exercise data was helpful during trial preparation for jury profiling and selection. They said, “When we get our juror lists, we break them out and compare the ages, sexes, education levels, and professions of the potential jurors against where those categories tended to fall on themes and topics during the mock.” The same interviewee noted that in addition to using theme analysis to influence trial strategy and jury profiling, the granularity of the data in The Advantage was such that they also pinpointed “power quotes” for trial. In this way, The Advantage helped influence trial outcomes.
  The senior associate, general counsel at an industrial company agreed that the granular mock trial data was helpful to reexamine ahead of trial to tweak the approach and achieve a better outcome: “The recommendations [in the report] could be anything from, ‘They hated that witness; you need somebody else. You need better graphics. The jury would have appreciated a timeline. These are really good pieces of evidence for you, and those are really bad pieces of evidence for you.’”

• Strong relationship with jury consultant. Many of the interviewees found it helpful to discuss the insights and resulting mock trial analysis with their jury consultants from IMS Legal Strategies. As such, the interviewees developed deep, years-long relationships with jury consultants. The senior associate, general counsel at an industrial organization stated, “[The IMS jury consultants lend] consistency, issue awareness, and some level of product understanding. And this is all cumulative. So on the first matter, they don’t have that. On the second matter, it grows. It grows and grows through the relationship. Trust is another important word, so consistency and trust. I trust them; they trust me.” The interviewee indicated that the trust and ongoing collaboration served to influence better matter resolution outcomes, including trial outcomes.
  In some instances, the relationship with their jury consultant alleviated the need for trial attorneys to attend the mock trial exercise at all, enabling the attorney to redistribute the time and energy to more sensitive or impactful activities for the case, such as witness preparation. The attorney at a midsize law firm explained that the trust built with the jury consultant alleviated the need for them to deeply examine the mock trial data. They stated: “I listened to what the jury consultant said. It was a good exercise. I listened to the debrief and read the report, but it was a big case with a lot of witnesses and things going on. I didn’t have time to do a super deep dive, so I listened to what the [jury consultant] told me.”

• Better collaboration between legal teams and key stakeholders. With The Advantage, litigation teams brought third-party stakeholders to mock trial exercises and saw increased collaboration by providing access to the dashboard in addition to the live stream functionality. The attorney at a midsize law firm invited insurance providers to mock trial exercises: “We have a tower of insurance. In that instance, I could see a link being sent and members of the tower of insurance being able to observe. I’ve been involved in that process before, where they’re watching and taking their notes, and they might be a part of the immediate analysis that same day.”
  The attorney at a small law firm noted that in addition to better collaboration, insurance providers must prove due diligence to their leadership, and participation in a mock trial exercise served that purpose: “It lets them justify to their bosses if something goes wrong. [We can say], ‘Listen, we did everything. We did a mock. We adjusted themes based on learnings. I know you feel strongly about this, but here’s what we just saw in the mock trial.’ [We can] try to reset expectations.”
  The same interviewee brought clients in to the mock trial exercise with The Advantage to not only accelerate the time to resolution but also to build trust between the client and the legal team: “It lets them see real-time issues and things that they may be advancing. Then, they get to see our jurors reacting to that, and it gives them some cover and some peace of mind about what the next step is and how we are going to do it.”
  For corporate legal teams, the collaboration with stakeholders extended to interactions with outside counsel. In this instance, more efficient deliberations and decision-making resulted in less spend with outside counsel. The senior associate, general counsel at an industrial company described: “I know that during the exercise, my outside lawyers are looking at the dashboard. When they get the reports, which include the dashboard data as well as the analysis, it gives them something to dig into — whether [an argument] is a good one [or if they need to] retool that argument. They also might see, if we play a deposition excerpt by video in the exercise or put up a transcript of some key testimony, …  how to deal with that [particular] witness or how to get ready for [that situation] because the jury want to know more of it.”
  The assistant general counsel at a utility company also highlighted the importance of using The Advantage data to influence communications with corporate stakeholders within the organization. They said: “It gives me an easy, concrete set of data points that I can then use when I am reporting to the executives or when I’m directing them as to where litigation strategy may be. It is also helpful if we have to incur additional costs or to set expectations on further costs. Having the data points is very useful for them.”

• Reduce attorney learning curve. Interviewees found that individuals at the associate level became more effective team members faster by participating in  mock trial exercises that featured real-time insights. Watching partners and other more seasoned colleagues go through mock trial exercises also influenced the associates’ litigation styles and strategies. The attorney at a small law firm stated, “[Associates] get to really see how the prep that we do with the witnesses matters. And they get to really see how those depositions are used and how painful they can be or how good they can be. … Rather than having to wait to go through a trial — [and its] hard to get cases through to trial these days — they get to see that what we work on ahead of time matters a lot.” This was especially important for this interviewee, who needed all of their attorneys at their small law firm to be effective as soon as possible.
  At the individual case or matter level, the mock trial exercises enabled litigation teams to carry forward learnings from prior mock trials and aggregate knowledge about jury demographics and venue analysis. These insights enabled them to build a foundation for all future matters and give their teams a jumpstart on trial strategy. This is in addition to the compounded value provided through relationships with jury consultants as described by the senior associate, general counsel at an industrial organization: “Jury consultants have prior knowledge of matters handled and can make suggestions, which helps improve trial prep or approach. I like having the consultant who can go back and say, ‘Well, on a prior similar case, this is what happened. What are the different factors here we’re trying to deal with?’ [When they have experience with prior matters], it informs the kinds of questions they ask.”

Flexibility

The value of flexibility is unique to each customer. There are multiple scenarios in which a customer might implement The Advantage and later realize additional uses and business opportunities, including:

• Aggregate venue and demographic analysis. The interviewees agreed that in the future, developing trends across aggregate venue or jury demographic data would be particularly useful and that The Advantage was poised to deliver such value. The attorney at a midsize law firm described, “If the facts are similar between matters, and you’re in the same venue or close enough, then there’s some applicability where you could see the similarities [in the aggregate data].”
  The attorney at a small law firm furthered the sentiment that aggregate data would help their firm keep up with trends in their venues and demographics: “It’s a way for us to track our jurors, and in a jurisdiction like [ours], it’s so important to know [if we are still] reading them accurately. Are they still fitting with what we know from prior experiences?” This interviewee noted that their firm collects this type of aggregate data as part of its post-trial processing. If The Advantage collected and analyzed this data for them, it would save paralegal time for every case that goes to trial.
  For corporate legal departments, potential jurors happen to be current or potential customers as well. The assistant general counsel at a utility company pointed out that aggregate jury data could influence business decisions as there was overlap between jurors and end customers: “The jury pool are our customers given the nature of our business. Understanding that there could be changing sentiment toward us [as an organization] is also useful from a business perspective.”

• Lend value to cases and matters that do not have the budget or need for their own mock trial exercises. Interviewees noted that participating in mock trial exercises with live, real-time insights helped institutionalize those insights for future use at the firm or organization level when dealing with any case. The attorney at a small law firm stated, “Another way that we use [The Advantage] is to help all our clients, even those who didn’t pay for it, because we’re going to learn things that we can use in other cases. So I’m going to go take a deposition and I’m going to really go after the patient responsibility or go after the heavy medicine because I know from [the] type of case I just ran through a mock that these [topics are resonating]. So I should have [this knowledge] at my disposal for the case and [have it if we do a] focus group.”

Flexibility would also be quantified when evaluated as part of a specific project (described in more detail in Total Economic Impact Approach).