The latest issue of the American Bar Association’s Section of Litigation Journal arrived on my desk this week. I love this journal so I usually get to it right away. The “Opening Statement” starts with this acknowledgment: “statistics show that currently only about 1 percent of cases filed in our courts are actually resolved through trial.” Go here to read the full article for free: http://www.abanet.org/litigation/journal/opening_statements/LitMagSum10_bass.pdf.
If you have a lawsuit, you will have a mediation.
As we have said before in this blog, court rules require nearly all cases to be mediated with an objective third party before the courts will set them for trial. The author observes that changes in our judicial system have led “many litigants [to] make a well-reasoned, rational decision to resolve their dispute by entry of a voluntary pretrial agreement.”
Preparing for a mediated result is different from preparing for a jury result.
The impact on case preparation is enormous. When parties and their attorneys are working toward the best possible pre-trial resolution rather than a trial they do things differently. An example. As trial attorneys we routinely planned the cross-examination at deposition of the opposing side’s expert witness so that the “gotcha” was not revealed until trial. Why? Because a clever expert and a clever attorney will change their positions to take the wind out of what would otherwise be a grand gotcha moment before the jury. You only get one chance to make that winning impression with the jury.
But, how do you handle this differently if you assume you will settle before you get to the jury? What do you do with that killer information in mediation?
The old rules don’t work for mediated resolutions.
Old school attorneys still counsel their clients to save it for the jury. They may tell the mediator in confidence about their secret weapon against the opposing expert, but then hamstring the mediator by preventing disclosure to the other side that has the weakness. This tactic robs the mediation of some serious power to produce a settlement.
What about the “gotcha” moment?
Mediation savvy attorneys maximize the value of such information during the mediation and increase the chances of resolution before trial. The very best gotcha moment I ever saw at trial: Trial attorney had the opposing expert on the stand swearing that the devastating event occurred at the hottest part of the day. The witness’ position was the attorney’s client’s product was defective. The trial attorney meticulously took the witness through his calculations. Each time getting the witness to reaffirm the timing of the event. Then, the attorney got the witness to admit that the weather report he relied on was based on GMT (Greenwich Mean Time) not the local time of the event. The several hours time difference destroyed the witness’ argument. More importantly, it destroyed his credibility with the jury on everything else he said too. Just like cross-examination is supposed to do. It was glorious. The attorney won.
What happens when you lose the case your lawyer said you will win?
If you have a fact as devastating as this and your attorney can accomplish a cross-examination as masterfully as this, perhaps you should wait until trial. If you have doubts, consider this. This victory came at the end of the second trial of this case. The first case led to a multi-million dollar verdict against the defendant. Stark realities. The witness’ reliance on his erroneous time assumptions was already in his deposition and his expert report. He was tied to it. Even if he could change his opinion, there would be damage to his reputation and his credibility with the jury. The opposing attorney was certainly smart enough to understand the potentially disastrous result of having his expert crushed at trial. If this information were used in the mediation, it may have led to a resolution before trial. Of course, a complete victory from a jury verdict could not have been achieved. But the cost and risk of trial may well have been sufficient to get a mediated settlement. Defense attorneys often discount the impact of the prospect of zero dollars on plaintiffs and their attorneys. Mediators see that impact clearly and can help both sides get the resolution they want.
Prepare for mediation.
The Journal article concludes by musing: “Perhaps our focus going forward should be on helping our clients resolve their disputes in the most expeditious and economic way–regardless of whether or not the result is a trial.” Sounds good. Trials are about lawyers. Mediations are about you.