Posted by: johnocunningham | August 17, 2018

Mock Juries and Focus Groups

For some years now, leading trial advocates have told me how much they value the input from mock juries and focus groups composed of people likely to be demographically representative of actual juries. For a long time, I have also participated in focus groups for marketing purposes, and I have seen how powerful they can be in terms of providing valuable feedback for improving products, services and marketing.

But only recently have I had the chance to participate in a mock jury, and it was an eye-opening experience. Based on what I learned, I would have to agree with the trial expert who told me: “If you are not using focus groups or mock juries in your major cases now, you are flying blind.” He went so far as to say that “it is borderline malpractice to ignore these tools.”

Here is a sampling of just some of the many things I learned from my experience as a mock juror listening to a medical malpractice case:

  • Group dynamics can make people shift their opinions in unexpected ways, and people really do grapple with coming to a consensus even though many start out with strongly held opinions that seem inflexible.
  • The conduct of an attorney in cross-examining a witness will be closely scrutinized, and can affect his client’s case, particularly if the lawyer is perceived to be hard on a witness (and I would add that male lawyers should tread very carefully with women witnesses, even if the women are professionals in competitive fields).
  • Factual and scientific details can be very hard to remember, even for the smartest jurors, who can end up debating what someone actually said, so it makes sense to ask the judge to allow jurors to take notes – they really do help with recall.
  • It is amazing how many jurors will totally dismiss the testimony of experts because they are perceived as nothing more than paid shills – lawyers should spend some time developing not just the credibility of an expert, but the reasons – beyond financial – that the experts are showing up to offer testimony.
  • Jurors can come up with truly pitiful damage assessments for “pain and suffering” without death, so lawyers have to develop this testimony carefully, being careful to neither under-develop the evidence nor gild the lilly… I heard several mock jurors come up with estimates of zero to $50,000 for the pain and suffering of a person who had multiple surgeries, major life disruptions and a lifetime of residual pain and discomfort (even when we were told to assume the total accuracy of the plaintiff’s testimony).
  • Jurors can decide that someone is completely unbelievable based on one statement, so lawyers must tell their witnesses to be 100 percent accurate. In this case, jurors dismissed much of the testimony of someone who made just one factual allegation that seemed very unlikely to the panel under the circumstances.
  • Jurors can decide that someone is unbelievable based on demeanor evidence, noting when someone shifts in their seat, fails to make eye contact, or just seems perturbed at questioning, so witnesses have to be well-prepped before they take the stand.
  • Jurors will grant an incredible amount of deference to learned doctors, and give even greater credence to the decisions of a team of doctors, so any advocate trying to prove that a team decision about patient care was wrong had better be prepared to show how team decisions were made and could go wrong due to group-think, lack of participation, deference to the treating doctor, or whatever the cause.
  • At least one juror noted that “to whom much is given, much is expected,” leading them to conclude that the doctor was paid to be right, and should be accountable for any failed result… this person’s candidly expressed belief caused others to speak up about the doctor possibly being wrong, shifting the initial group dynamic a bit from the initial deference to the doctor’s training.
  • When a doctor refers to a patient consent form as “paperwork,” it can be offensive to some jurors. I think jurors likely want to believe that their consent to surgery is taken extremely seriously.
  • On the other hand, the fact that a written consent is routinely sought just minutes before surgery, often when the first mention of serious or fatal consequences arises, does not seem to bother many people simply because “that is the way it is always done”… the medical profession has created for itself almost a standard of practice in treating consent to treatment as perfunctory.
  • Lawyers who want jurors to listen carefully to the evidence should do everything in their power to make sure that proceedings start and stop on schedule… I saw first-hand how anxious and even angry some people can be about the perception of having their time wasted just sitting and waiting for things to get going.



This is my 68th post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

Reviewing blog posts for the month of July 2018, I have chosen to highlight the following blog posts:

Posted by: johnocunningham | July 30, 2018

How to Impress Your Corporate Client

Earlier this month, I noticed a published interview with the Chief Legal Officer for DHL Supply Chain Americas, Mark A. Smolik, and thought it was worth sharing with readers who might like to hear some of his perspectives on:

  • What a law firm has to do to impress the GC
  • How in-house lawyers avoid being perceived as “naysayers” and
  • the CLO’s top goals and areas of focus

Smolik’s views are generally consistent with those I have heard from other GCs I have interviewed this year. His focus on offering pragmatic legal advice in plain English and simplifying complexity (rather than making the simple complex) is part of a long-term theme for business clients who are frustrated with overly technical and academic answers to basic questions. This also illustrates the importance of being able to communicate what you know in the language of the client.


Posted by: johnocunningham | July 15, 2018

To Law Firms: It’s Good To Be Different

Renowned consulting firm, Altman & Weil has published some succinct and informative pieces about law firm differentiation in the legal services marketplace. They are publicly available and worthwhile reading for law firms.

The first piece I would recommend is one that shows graphically: 1. how firm leaders at different size firms assess their own attempts at differentiation; and 2. the relationship between perceived differentiation in the marketplace and success in growing demand.

The second piece is one that spells out the dimensions of law firm differentiation and many of the possible ways to differentiate legal services.

In a third piece, Altman Weil’s Eric Seeger has also supplied some simple exercises for attempting to communicate differentiation.

Of course, the potential for differentiation is only limited by imagination. I know of professional service firms and individual professionals that differentiate in ways not explicitly spelled out in these pieces, such as:

  • by offering promises of well-defined call-back or response times
  • by offering 24/7 phone service answering
  • by communicating specific credentials associated with process improvement, project management and other systemic training that business clients value in order to show a total package of skills that demonstrates a systemic commitment to perpetual improvements in efficiency, quality and speed
  • by measuring client satisfaction scores and sharing those scores publicly
  • by communicating quantitative measurements of experience in specific areas that other firms don’t even keep, much less share publicly

The first step in being “different” though is cultivating the will to be different.

Posted by: johnocunningham | July 12, 2018

The Lawyer Bots Are Coming, The Lawyer Bots Are Coming…

Lawyers continue to see encroachments on their turf by technology providers, who have now created “lawyer-bots” that fight parking tickets, contest property taxes and perform other tasks in a faster and more cost-efficient fashion than human lawyers.

This is just the latest in a series of technological encroachments into areas such as document review, contract analyses, legal research, economic damage assessments, and generation of basic wills, powers of attorney and other legal documents.

Law firms now have to distinguish themselves not only from human competitors, but electronic ones as well. They have to figure out what they do better or best, and communicate that effectively. They also have to look to the future, stake out the turf they know they can capture or defend, and take a little risk by innovating cost-effective, convenient and high-speed solutions before someone else beats them to the punch.

Individual lawyers need to figure out how their human experience connecting with, dealing with and collaborating with other humans can add value for a client in ways that technologies cannot, or in ways that help drive the technologies in the right direction for the greater benefit of clients. When it comes to machines, if you can’t beat ’em, you can at least supervise them and train them.

This is my 67th post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

Reviewing blog posts for the month of June 2018, I have chosen to highlight the following blog posts:

  • A post about how to extend the life and outreach of digital content, which appears on Stephen Fairley’s Rainmaker Blog.
  • A post about legal directories and how clients choose lawyers, which features an interesting look at a new digital directory that integrates client feedback, making the directory more relevant and useful to clients. This post by Lindsay Griffiths appears on the “Zen and the Art of Legal Networking” blog.
  • A post about improving the appearance and relevance of the portfolio of work on a website in order to capture more attention from client prospects, which was written by Vanessa Schaefer for the Clockwork Design Group blog.
Posted by: johnocunningham | June 26, 2018

What’s Up with Chief Legal Officers

The Association of Corporate Counsel has published its findings from its annual survey of Chief Legal Officers, and the results are informative and relevant to both in-house lawyers and outside law firms who serve them.

A total of 1,275 CLOs in 48 countries provided responses to the survey, which revealed that rapidly evolving regulatory changes are keeping them up at night more than any other issues.  Data breaches and information privacy issues were of the next most concern to CLOs with data breaches having affected one in four respondents directly.

The big news may be that more than half of CLOs are expecting budget increases, instead of cuts, for the first time in many years. But law firms should not pop the champagne corks for outside spending, as most of the increases are being directed at growing in-house staff and resources (and the threat of non-traditional providers of legal solutions has not gone away either). Only one in three CLOs expects to send more work to outside counsel this year and 17 percent actually expect to decrease their outside counsel spending.

Those who are interested can read a free synopsis offered by the ACC, or they can order the full report for $895 for non-ACC members.

Posted by: johnocunningham | June 12, 2018

What Senior Legal Officers At Coveted Clients Are Thinking

At the LSSO RainDance conference in Chicago on June 6, a panel of all-star legal leaders from global companies provided answers to numerous rapid-fire questions about legal sales and service.

The panel included: David Cambria, Global Director of Operations for Law, Compliance, and Government Relations at Archer Daniels Midland Company; Marta Carreira-Slabe, Chief Counsel for Aon Latin America; and Matt Nolan, VP & General Counsel for the Ancra Group of the Heico Companies.

Among the revelations at the panel event were the following:

  • Everyone welcomes free annual on-site visits from valued outside counsel who want to learn more about their business.
  • Law firms are not making positives shifts in service delivery and options fast enough, which has resulted in more business to going to Big Four consulting firms, technology solutions providers, contract lawyers and other alternative service providers.
  • As with past panels, ALL agree that they strongly prefer to like their outside counsel on a personal level, so character and personality counts.
  • ALL agree that they would welcome a conversation with outside counsel on how they can improve, but this conversation is rarely invited by the outside lawyers.
  • ALL agree that outside lawyers need to make much better efforts to understand client businesses and industries, and give advice that is industry-business relevant.
  • The most prominent service issues still cluster around communications, empathy and responsiveness.
  • RFPs and sales pitches can be improved with more focus, fewer pages, some market differentiation, and much more emphasis on “how” superb results are to be delivered, and how they will be business-industry relevant.
  • For the first time in years of panel events, ALL of the participants agreed that they would give a law firm plus points for having gone through a serious process improvement or project management program (preferably both).
  • All panelists agreed that they most often access law firm websites and Internet legal information via their desktops, rather than cellphones or tablets. Desktops continue to be favored by senior legal leaders, perhaps because they spend so much time in the office.
  • It is important for outside counsel not to “speak down” to in-house legal pros, who feel that there are all-too-common underestimations of their expertise, commitment, hours and legal scholarship.
  • Each of the panelists is working on ways to collaborate with their most valued providers on constant ratcheting up of service quality, speed and cost-effectiveness, so if you are not among the firms chosen for dedication to “perpetual improvement” you may not be among the most valued.
  • The panelists must build trust with their own in-house business “clients,” and they do so by listening to their concerns, spending time with them, responding quickly to their concerns when asked, and acting like friends rather than policemen.

These were some of the many insights the panelists shared. If you attended RainDance and would like to add some of your own observations about what was most important to senior legal officers, please feel free to share a post.

Thanks to Marta, David and Matt for their generous sharing of their time and insights !

Posted by: johnocunningham | June 11, 2018

Golden Nuggets from the 2018 RainDance Conference

As always, the Legal Sales and Service Organization hosted a superb gathering of some of the top business minds in the legal services industry on June 6-7 in Chicago, and as always, there were plenty of useful takeaways.

Here are some of the things that stuck in my mind from this year’s RainDance conference:

  • The people at Design Build Legal are using their design-thinking experience gained from working with clients like Nordstrom to help law firms adapt to a fast-changing competitive landscape. With their help, some leading-edge firms are moving from “Here’s what we make – want to buy some?” to “What are your problems? We’ll design and deliver the solutions?” They facilitated a workshop in which audience members built models for solutions to actual problems presented by a senior legal officer at a Fortune 500 company in less than one hour – awesome. You can learn more about them from the Design Build Legal website.
  • Data-masters at Intapp explained how marketing/sales professionals can help their firms to choose the right strategic direction, and get better buy-in from all key partners by focusing on key data that is available in most every firm. Loved a quote they presented by a managing partner: “If we have data [evidence] let’s use that to make decisions. But if all we have is opinions, then let’s go with mine.” Among many data “heuristics” they presented was the “Rule of 3” which says that a client is much more likely to stay and grow with a firm if that client is buying three or more types of services (litigation, corporate, real estate, etc.). They also revealed that clients who seek increasing discounts on bills are likely to jump ship soon if changes in service are not made.
  • Several books were recommended by multiple participants, including Daniel Pink’s “To Sell is Human,” and Patrick Lencioni’s “The Advantage.”
  • We learned from David Ackert of the Ackert Advisory that tracking data indicates that most prospects don’t become clients until an average of 14 impressions or touches are made (meetings, calls, content consumed, etc.). He also explained how important it is to have clear objectives for every interaction with a prospect prior to meeting or speaking with them. Thus, “winging it” is far less likely to produce a successful “impression” on which to build.
  • We learned from Iris Jones of McNees Law how even summer associates can design and implement a marketing program that successfully lands business from a major client prospect.
  • We learned from successful venture capitalist, Brent Jones, who also won a few Super Bowls as tight end for Joe Montana and Steve Young, that success is more about perspiration than inspiration. Jones wowed the audience with true tales from the football and business worlds that exemplified the importance of making a sustained daily effort, practicing your execution, getting out of your comfort zone, having a sense of humor to make the best of things, and being just plain “likeable.” Brent Jones is one of the best speakers you can have at a group event.

Attendees also learned what is on the minds of senior legal officers who are working in-house at three highly reputable global companies, and I plan to post more about that in the days ahead.

Thanks to the conference organizers for another great event, and thanks to all the attendees who shared some marvelous insights from their firms.


This is my 66th post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

Reviewing blog posts for the month of May 2018, I have chosen to highlight the following blog posts:

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