Due diligence. Preparation. Undoubtedly, this is the most important responsibility that counsel owes to his or her client.
Inadequate representation due to poor preparation nearly always results in a negative outcome. Worst case scenario is the conviction of a criminal client who is innocent.
In civil cases, inadequate representation could result in a settlement that is too high (or too low). Sometimes, the client retaliates by filing a legal malpractice suit.
To be sure, legal malpractice is not commonplace. Certainly, it does not approach the frequency of medical malpractice lawsuits filed during their heyday. Probably the most common type of legal malpractice is oversight of the statute of limitations. This is the most obvious and blatant form of inadequate representation and it nearly always results in a ruling against counsel.
But what about other cases where lack of preparation and inadequate representation is not as blatant or obvious? For instance, could failure to conduct jury research or other form of trial research result in legal malpractice? Could a person convicted of murder claim inadequate representation because his or her counsel did not seek a change of venue in a high profile case? And what about a defense client who is advised to refuse a plaintiff settlement offer, and then loses the case and is slapped with a much higher jury verdict? Can this client claim inadequate representation because counsel (perhaps inexperienced in utilizing trial consultants) failed to use litigation research to gain a better understanding of the client's potential exposure? As one of our major litigation clients half-jokingly asserted, "I feel I have to call you guys on almost every case to make sure I have all my bases covered."
Law firms don't hesitate to bring in an expert witness if they believe their testimony is crucial to winning the case. The hiring of expert witnesses is routine and accepted, and it is understood that the cost will be passed along to the client. If counsel is asked if failure to contract with a qualified expert witness could result in legal malpractice, the answer would be a resounding "Absolutely!" However, law firms and their clients may not be as accepting of the need for jury or trial research (nor the cost associated with conducting the research).
But consider that the State of West Virginia provides public monies for trial research for indigent clients who are being represented by the Public Defender's Office. Our firm has conducted multiple change of venue surveys for clients of the Public Defender's office that were funded by taxpayer dollars. In each case, the judge approved the expenditure because the indigent client is entitled-the same as everyone else-to adequate representation. And trial research, like a court-appointed attorney, is considered essential to providing this adequate representation.
Obviously, the services of jury/trial consultants are not essential in all cases. But as the complexity of the case, and exposure to damages increases, the need for trial research becomes more pronounced. In these cases, the types of trial research services that jury consultants provide becomes part of the counsel's due diligence to ensure adequate representation of his/her client.
Samples is president of RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.