Jim McElhaney’s column in The American Bar Association Journal is always a humorous well-needed lesson in lawyering. The November article starts with the following conversation teaser:
“What’s the matter?” I said. “Bad verdict?” “That’s the understatement of the day,” she said. “Lost a case I should have won.” The full article is here http://www.abajournal.com/magazine/article/lawyer_fatigue?.
The take away lesson for me is that juries remain unpredictable. The information available to jurors is phenomenal. They are bombarded by television shows depicting an incredibly unrealistic view of how case preparation and jury trials actually work. Their expectations are being shaped in a manner that is difficult for lawyers to meet in the constraints placed on them by the jury system.
What do lawyers say to their clients when they lose the case they “should have” won? We’ll appeal. That is a whole other topic. What they should say is, let’s mediate again.
Both sides have seen the full proof. Just because one jury ruled in favor of one side, that does not mean that the next jury would. Sure, appeals are even harder to win. But, courts make mistakes all the time. Even the trial victor knows that some cases are reversed for trial error all the time. The only way to avoid another two years of litigation is to resolve the case now–while everything is fresh in mind, and while everyone is exhausted from the burden of trial. That is when everyone is most motivated to resolve the case.
Do not expect that the victor is oblivious to the problems they might have on a re-trial. Mediate the case as soon as possible after the trial.
Mediators To Go