In 1983, Matthew Broderick starred one of my favorite movies, “War Games.” He played a failing high school student turned computer hacker. He breaks into the U.S. military’s supercomputer, WOPR (pronounced “whopper,” War Operation Plan Response), and discovers a program for testing and playing out Cold War scenarios with the Soviet Union. He engages WOPR in what he believes is a simple war game. In reality, he causes the computer to think the Soviets are actually attacking and, thus, brings the country to the brink of thermonuclear war.
The interesting thing about the program is that it learns how to react militarily based on the experience of thousands of previously run nuclear war games. The experience of trying lawsuits is similar to the thousands of simulations run by WOPR.
For some time now, we’ve heard about the decline of the jury trial in America. There are countless statistics showing that fewer cases go to trial today than in previous decades. This is often seen as a good thing by litigants. While trivial compared to the nuclear war in “WarGames,” trial is always a risky proposition. Results often can fall outside expected or predicted ranges. Judges can inject error into a case and necessitate an expensive and protracted appeal. However, when parties are able to resolve their differences voluntarily through compromise, there are no losers (even if each walks away without complete satisfaction). In fact, it is the public policy of the courts to encourage litigants to resolve their differences prior to trial.
Lawyers play a vital role in this process as well. Our ability to control and manage risk through good negotiation and alternative dispute resolution techniques and strategies is a great benefit to the client. So if resolving litigation short of trial is such a good thing, is trial expertise and experience in defense counsel even important anymore? Why can’t we create a trial version of WOPR and be done with trials completely? For defense counsel, are excellent risk/claim management skills and resolution skills compatible with top-notch litigation skills?
Every case evaluation, whether from defense counsel, in-house counsel, or claims professionals, has to take into account the end game. It has to answer, as accurately as possible, this question: What is going to happen at trial if we don’t resolve the case voluntarily? In this column, we’ve covered the various factors that go into a good estimate of liability and a verdict number. The hard factors, such as lost profits, medical expenses, and property damage, are usually easy to come up with.
Then there are intangible factors, such as venue, witness credibility, and opposing counsel, that are more difficult to evaluate. All of these elements are analyzed to ultimately answer the question: What will a judge or jury do with this case when it is in their hands?
In order to predict the result accurately, a lawyer has to be an expert in the courtroom. While it is nice to have a lawyer with expertise in a certain area, most subject-specific information can be learned. A client can provide all the data needed regarding the manufacturing process behind a certain widget such that defense counsel is intimately familiar with everything necessary to develop testimony. However, the client cannot provide the trial experience and expertise that the lawyer needs.
So how are lawyers maintaining experience and skills in the courtroom in the wake of decades of successful alternative dispute resolution? What role do claims professionals play in finding and helping defense counsel maintain advocacy skills in the courtroom? Many firms will give younger lawyers the opportunity to attend a conference and participate in a mock trial or trial academy. There are many excellent programs that allow a certain amount of simulated “practice.” However, no program can provide the experience of “live ammunition.”
The bottom line is that the lawyers who are in the courtroom on a regular basis are able to evaluate risk better for cases that go to trial. It is a problem that lawyers are finding that experience harder to get. Clients and claims departments, particularly ones with a higher volume of litigation, stand to do well to find cases they can try. Sometimes the costs may not justify a trial based on what the case could be settled for, but clients need lawyers they know can try the big case when it becomes necessary. Their lawyers will benefit from it and, ultimately, they will benefit as well. Both elements of the litigation management partnership will function more effectively and manage risk better when they are battle-tested on a regular basis.
In addition, the plaintiffs bar knows which defense lawyers will try a case well and factor that into the number for which a plaintiff is willing to settle a case. It also impacts the timing of settlement. If defense counsel knows the end game at trial because he has been there, the case is more likely to settle early. If it doesn’t, then you know the evaluation will be accurate and the client (whether it is you or your insured) will be well represented to the end.
So how did Broderick’s character avoid a nuclear war? He teaches WOPR by forcing it to engage in multiple games of tic-tac-toe against itself. After a number of consecutive draws, WOPR learns the concept of futility and decides that a strike-first approach in global thermonuclear war guarantees mutually assured destruction. Perhaps this is where the analogy to litigation breaks down.