Should You Do A Post-Trial “Postmortem”?

ii_a_127Living through trial. The only thing most of us think about is winning. (Unless, like me, you get that 11 pm craving for carne asada burritos con guacamole, then you think about that, too.) After the verdict, win or lose, the last thing everybody wants is to go back through it and take stock of what happened, what went well or went poor and how we can do better next time.

But there is real wisdom, once the dust truly settles, in going back over everything to ponder, “What did we learn from this?” For institutional clients of every size, trials are a huge investment of time, money and resources. It makes a lot of sense for them, ideally in conjunction with their counsel, to do a trial postmortem. This not only helps prevent future “situations” requiring litigation but, if cases do arise in the future, it enhances the chances of success. Astute lawyers recognize the value and opportunities of this process and collaborate with their clients to do a comprehensive postmortem, possibly for free! Even if the client shows no interest, much can still be gained if only the members of the trial team come together for a postmortem session.

A generous article on this topic, “Trial ‘After Action Reviews,'” appeared in the August, 2013 issue of For the Defense. The authors, Milwaukee lawyers Ric Gass and Michael B. Brennan, point out that “Army generals as far back as Caesar in his ‘Commentaries on the Gallic War’ have learned strategic and tactical lessons through after action reports.” (Id. at 29) The article is sweeping in its scope. Among the valuable points made by the authors was the following:

“Crucial to the success of an after action review is, to use the military jargon, ‘leaving your rank at the door.’ If you are the lead counsel, you need to be willing to listen and to learn from the observations of others on your team. You were probably too busy while doing that crucial cross-examination to take in everything else in the courtroom, such as reactions of jurors, or of the judge or opposing counsel. But your co-counsel, your paralegal, or your jury consultant did watch for those reactions, and you need to hear what they saw.” (Id.)

The authors suggest some topics for review during the postmortem, including:

  • Jury Research: “Did the jury research accurately predict the attitudes and reactions of the jurors and the ultimate result on liability and damages?” (Id.)
  • Opening: “What worked well for us? What worked well for opposing counsel?” (Id.)
  • Direct Examinations: “Did a certain witness’s testimony connect with the jury, and if so, why?” (Id.)
  • Cross-Examinations: “Was the tone of the questions too harsh or too lenient? . . . How many of the admissions made on cross-examination made it into the closing argument?” (Id. at 30.)
  • Expert Witnesses: “Would we use this expert again, and more importantly, why?” (Id.)
  • Closings: “What worked well for each party, and why?” (Id.)

Finally, the authors point out that:

“Being a trial lawyer is a lifelong learning experience. . . . If you have had any kind of trial, but especially a major trial, you need to appreciate it for all the experience it brings and to wring every last piece of learning that you can from the experience. . . . [Y]ou need to figure out how to carry that understanding and the techniques that went right to your next trial.” (Id.)

I know first-hand how much clients appreciate it if, after the trial, you offer to travel to their offices and help your in-house counterpart prepare and present a postmortem, with the specific goal of avoiding similar situations in the future. They really, really appreciate it when you don’t charge them for the experience. If your trial counsel won’t do this for you, ask them why not. Then remember to call me.

About Alex Craigie

I am an AV-Preeminent rated trial lawyer. My practice focuses on helping companies throughout Southern California resolve employment and business disputes. The words in this blog are mine alone, and do not reflect the views of the Dykema law firm or its clients. Also, these words are not intended to constitute legal advice, and reading or commenting on this blog does not create attorney-client relationship. Reach me at acraigie@dykema.com. View all posts by Alex Craigie

5 responses to “Should You Do A Post-Trial “Postmortem”?

  • Rich Matthews / Juryology

    I completely agree that this is an important step. The question for me is: Who exactly is qualified to help guide through those questions and arrive at good answers . . . because it is rarely trial counsel. Humans are not psychologically designed to see themselves & their own actions/choices very well or with the necessary detachment to get it right. We are subject to the exact same biases & fallacies that everyone else is, over-valuing and under-valuing some phenomena, misinterpretation, etc.

    As a trial consultant, I have participated in a few of these conversations in an informal way after the verdict– like over lunch the next week. Even for cases I didn’t work on. There are some pretty common themes in these conversations, such as, “The jury didn’t understand X” in a tone that blames the jurors and thus “explains” the verdict rather than the lawyer who was supposed to teach the laypeople about X. The reality is more likely that some of the jurors perfectly well understood X, and either they didn’t raise it to the group, or they did raise it to the group but the group in the aggregate didn’t find it that compelling. The reality is that the bulk of jurors felt like the case was About (note the capital ‘A’) something else, and the attorney’s view of the case did not match that.

    I recently worked on a case in which I was brought in quite late and the underlying client (not a lawyer) had WAY too much control over the case, was dictating strategy, insisted on certain theories of the case and causes of action completely unsupported by the evidence, etc. The attorney for whom I was ostensibly working had bought into this crazy thinking and enabled it. It goes to trial. The defense got up and behaved as I described in my blog (“5 Quick Things To Be Less Awful in Voir Dire,” “More On Jury Selection,” “The Five Do’s and 12,000 Don’ts of Opening Statements,” etc.)– AWFUL. There was a finding of liability against one of the defendants and an award of nominal, nominal, really nominal damages. Practically a defense win.

    I am SURE that the defense lawyers in the case danced a merry jig back to their offices and to this day feel like they did a great job. They didn’t. They did an empirically terrible job. Because their last offer to settle was probably 20 times the eventual jury award, they consider this a great win. It’s not. It’s a great OUTCOME for them, and there is a big damn difference. They “won” because of mistake after mistake after mistake by the plaintiff side. If they had been up against better counsel & client, they would have lost by doing the exact same stuff– which they absolutely would have, because that’s what they think good trial lawyering is.

    A near universal fallacy we all share: when things go well, it was probably our doing; when they go badly, it was probably someone else’s fault.

    • Alex Craigie

      One hitch in involving a jury consultant in doing a postmortem is cost. I completely agree that your training and experience brings an invaluable additional dimension to the analysis, but suggesting a client pay this on the heels of a bill for the trial–even if your client won–is a tall order. Thus, like counsel, a great complimentary client service to provide would be free participation in the postmortem. Don’t shoot the messenger–just an idea.

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