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It is no accident that Thomas Mauet’s Fundamentals of Trial Techniques is the best regarded textbook for trial advocacy, at least among professors and adjunct professors who use a text at all. I kept a fair number of my law school textbooks, but the only one I’ve consulted more than once in 20 years of practice is Mauet’s Fundamentals.

In his chapter on trial strategy, Professor Mauet introduces us to some basic psychological principles which come into play when presenting evidence and argument to jurors. I’ll highlight five good ones here.

1.  Jurors are primarily affective, not cognitive, thinkers. This is probably a huge generalization, but a useful one. Mauet writes: “People have two significantly different decision-making styles. Most people are primarily affective, not cognitive, thinkers. Affective persons are emotional, creative, impulsive, symbol oriented, selective perceivers of information and base decisions largely on previously held attitudes about people and events.” (Id. at 376.)†

2.  Jurors use attitudes to filter information and reach decisions they believe are sensible and fair. We rely on attitudes, values and believes “to filter conflicting information. Our attitudes subconsciously filter information by accepting and remembering consistent information, by ignoring, minimizing, or rejecting inconsistent information, and by distorting inconsistent information to make it consistent with our attitudes.” (Id. at 377.)

3.  Jurors reach decisions quickly, base them on relatively little information, and then resist changing their minds. Just when you thought a jury trial was the perfect forum to resolve a technically complex dispute, such as a patent fight or generally accepted principles of accounting, it turns out that “[j]urors cannot absorb, understand, and retain most of the information they receive during a trial, particularly if most of that information comes through oral testimony. Sensory overload occurs quickly. To relieve the internal stress this problem causes, jurors reach decisions quickly by basing them on relatively little information that their attitudes have subconsciously filtered and received.” (Id. at 377.)

The key for a trial lawyer, then, is to identify the jurors’ “psychological anchors” and “state them in a short, attractive, memorable way that is consistent with jurors’ attitudes and beliefs, and incorporate them into each stage of the trial.” (Id. at 377-78.) For more on this, see my discussions of the Rules of the Road here. This is also consistent with the underpinnings of the Reptile strategy, discussed here.

Why do jurors resist changing their minds? Just as the rush to judgment is fueled by the desire to reduce internal stress caused by sensory overload, the steadfast adherence to their initial decision also helps reduce internal stress. “[I]nconsistent information causes cognitive dissonance–internal conflict and stress. Jurors subconsciously solve this problem by rejecting new information.” (Id. at 378.)

4.  Jury decision-making is influenced by the personality characteristics of individual jurors and how they will interact as a group. Mauet describes three types of jurors: leaders, followers and loners. Recognizing the leaders is key. “Opinion leaders usually have a higher education level and have positions of authority or expertise in their work. Leaders may be authoritarian personalities and often dominate jury discussions; the three most vocal jurors typically control more than 50 percent of the deliberation discussion. Particularly in longer trials, jurors form subgroups around opinion leaders.” (Id.)

Followers  . . . well, they follow the leaders. But loners are worth worrying about. “Loners . . . have no particular interest in either interacting or agreeing with other jurors. Loners who seem withdrawn because of recent traumatic experiences frequently become punitive jurors.” (Id.) Yikes!

5.  Jurors are influenced by medium variables. The message here is that jurors absorb what they see exponentially better than what they simply hear. Mauet writes, “When the medium is oral testimony, clear, simple common English with a smooth, confident delivery and reinforcing kinesic and paralinguistic cues significantly affect how jurors receive, accept, and retain the communication. . . Since communication is approximately 60 percent kinetic (appearance, gestures, body movement), 30 percent paralinguistic (voice inflection), and only 10 percent word content, trial lawyers must learn to read the kinesic and paralinguistic cues that jurors send during voir dire, witnesses send while testifying, and lawyers send throughout a trial.” (Id. at 380.)

Visual exhibits are hugely important. “Visual exhibits also have extraordinary retention properties. People retain about 85 percent of what they learn visually; retention of aural information is only about 10 percent. Hence, exhibits that pass the ‘billboard test’ — clear, immediate, and attractive — have an extraordinary impact on jurors.” (Id.)

With these psychological principles in mind, we can see why voir dire is so important, as is the packaging of messages, particularly anything that is complex or likely to trigger jurors’ long and closely held attitudes and beliefs. Good luck.

†All citations are to the Third Edition.

I am a big fan of Dan Hull‘s writing at his popular What About Paris/What About Clients blog. He has intellect, wit and a literary bent. One post which often seems to show up again and again in the legal blogosphere is his self-described “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service.” If you’re not familiar with the 12 Rules, and you work in virtually any service industry, they’re worth thinking about.

I’ve wondered, however, why Dan refers to his own Rules as “annoying” and “infuriating.” Though I suspect he’s being hyperbolic, I think his description is unfair. I also think that any lawyer who finds the Rules annoying or infuriating should maybe look into another line of work. Here’s why I think the Rules are not so very annoying:

1.Represent only clients you like.

Ah, what a luxury, to be able to cherry pick clients and jettison those you don’t personally like. The Rule would be annoying, infuriating even, if you took the short, as opposed to the long view. If you’re a first year at a firm and servicing the firm’s clients, you definitely don’t have this luxury. However, as your career matures, you can hopefully begin to shape your practice and client development efforts so that you can increasingly avoid clients you don’t like. And you should. The remaining Rules are much easier to follow if you’re doing work for people or companies you like and respect.

2.The client is the main event.

If you’ve been a client, a patient or customer and been treated as a second class citizen–and who hasn’t–this rings true. The minute you lose sight of this Rule you’ve begun walking the road toward extinction, at least as a lawyer. Unless you provide a unique set of skills or knowledge and there is no one else in your region to compete with, you must follow this commandment, because at least one of your competitors will.

3.Make sure everyone in your firm knows the client is the main event.

Why would this be annoying? After all, these people are on your payroll. A good way to gauge whether others in your firm appreciate the importance of the client is by what they include in internal email communications. If, for example, they let comments slip into communications intended for distribution only within the law firm that suggest they do not completely respect the client, this should set off alarm bells and a chat should follow. First, we’ve all heard examples of emails in which the sender intended only to “reply” or “forward” the message, but instead hit “reply to all,” where “all” included someone–like a client–who didn’t appreciate a comment contained in the message. It’s a matter of time before this happens to everyone. Second, we often interact with our clients through our staff or associates. They need to treasure your clients (almost) as much as you do.

4.Deliver legal work that changes the way clients think about lawyers.

This Rule really doesn’t ask you to do anything beyond what many lawyers already do: aspire to practice law effectively, efficiently and, in the case of courtroom lawyers, win! The good news is that, with so many hacks running around out there, if you hold yourself to higher professional standards you’re already applying this Rule and clients will appreciate it. The bad news is that, with so many hacks out there, doing what hacks do, for so long, it’s going to take a lot to change the way clients think about lawyers. But do your part.

5.Over-communicate:  bombard, copy and confirm.

Put yourself in your client’s shoes. How much information would you want? It has been said that, as lawyers, we “sell paper.” That’s probably an oversimplification, but there is some truth to the notion that a client cannot appreciate what he or she never sees. A good part of what we charge for is the preparation of work product–motions, pleadings, correspondence, memoranda–why not let clients see what they’re paying for?

6.When you work, you are marketing.

Since we comply with Rule 5, supra, our clients can see and evaluate our work product. If the quality is high, it is both justification for the fees we charge and an advertisement why the client should hire us, and not a competitor, next time. If the quality is not high, it’s a perfect advertisement for our competitors. If you take pride in your work product, why would this be annoying?

7.Know the client.

In my practice, which focuses on defending employers in suits and claims arising out of the employment relationship, this Rule is elementary. It is why, as I’ve said, I take every opportunity to hold meetings at my clients’ offices or facilities. As Dan has said, “The client . . . actually wants you to know him, her or it. Take time out to learn the stock price, industry, day-to-day culture, players and overall goals of your client. Visit their offices and plants. Do it free of charge.”

8.Think like the client–help control costs.

I am constantly amazed at how costs mount when a case is litigated. I am not referring necessarily to the fees charged by the attorneys themselves, because this is a topic about which I have only the slightest understanding. Beyond a hazy idea of what others charge who do exactly what I do in my region, I don’t know what goes into this equation. I’m told there are now lawyers who bill $1,200 per hour. All I can say is, really?

Beyond attorney fees, however, there is a lot we can do to control costs when a case is in litigation, including deposition costs, investigation costs, photocopy costs. Sometimes, it takes some creativity, but our interests here should be aligned with our client and we should scrutinize these hard costs just as we would if we were paying invoices out of our own pockets.

9.Be there for clients–24/7.

This is what that iPhone is for (not just to play Angry Birds and take “selfies”). Oh, what it must have been like to practice law before fax machines, computers or mobile phones. But we don’t. We’re in a different era. We should not only survive in this new environment, but thrive.

10.Be accurate, thorough and timely–but not perfect.

Again, treat your client as you expect to be treated as a client, patient or customer. But feel free to occasionally cut yourself some slack, too.

11.Treat each co-worker like he or she is your best client.

This doesn’t sound at first like a rule geared toward client service, but here’s what Dan has said about Rule 11:

“Clients love to form partnerships with law, accounting, consulting firms and service providers of all manner with genuinely functional workplaces.  They love work communities where the professionals are demanding but love what they do and solve problems together as a team of happy, focused people who stretch–but respect–one another.  It’s fun for them to watch, and fun to watch them watch you.  Clients want to be part of that.  Watching the “well-oiled” team is an image which sticks in the client mind.”

A well-oiled team is not only an image that sticks in the client’s mind, it is also a really good way to make the practice of law fun instead of pure drudgery.

12.Have fun.

Well, duh!

Now that I’ve used every word that begins with “C” in the title, here’s the post:

On July 11, 2013, a California appellate court, in Beaumont-Jacques v. Farmers Group Ins., affirmed summary judgment in favor of an insurance company on the question whether a District Manager was properly classified as an independent contractor and not an employee. In so holding, the court provided clarification on the proper analysis for determining this important issue.

Why is this important?

California employers that misclassify workers as independent contractors face potential liability, which can include compensatory damages, stiff penalties and attorney’s fees.

What happened in the Beaumont-Jacques case?

A former District Manager, Erin Beaumont-Jacques, sued Farmers Insurance on various theories all of which hinged on a determination that she was a Farmers Insurance employee. In support of her position, Ms. Beaumont-Jacques pointed out that: (1) she was bound by a contract to only represent Farmers in recruiting and training sales agents; (2) she could train such agents only to sell Farmers’ insurance products; (3) the applicable contract required her to “conform” to Farmers’ “normal business practices” and “goals and objectives”; and (4) Farmers enjoyed the option to terminate her contract without cause.

In affirming the trial court’s granting of a motion for summary judgment brought by Farmers, the California Court of Appeal for the Second Appellate District clarified that, even where other factors may suggest an employment relationship, it was sufficient for independent contractor classification that Ms. Beaumont-Jacques “exercised meaningful discretion with reference to her efforts” undertaken on behalf of Farmers. Specifically, the Court said: “While [Farmers] . . . had input over the quality and direction of [her] . . . efforts, they did not have sufficient ‘control over the details’ with respect to those efforts” to render the relationship one of employment rather an independent contractor.

What is the takeaway?

The paramount consideration in determining whether a worker can be properly classified as an independent contractor under California law is whether the worker maintains the right to control the means by which she accomplishes her duties.

Buyers snatched up a weathered house on my street late last year, and I soon learned they intended to remodel and “flip” it for a profit. A couple of weeks ago, the house, completely remodeled with the addition of a swimming pool, went on the market for a price that frankly stunned many of us in the neighborhood. Naturally, everyone likes to make a profit, particularly if the whole point of buying the house was to fix it up, turn around and sell it. But, these “flippers” had set the asking price at a fantastic 3½ times the home’s original sale price, well outside what any of us thought was reasonable.

This was running through my mind when I came across an article in last Friday’s Wall Street Journal about the wisdom of pricing real estate too high or too low. The article cited a recent study in the Journal of Economic Behavior & Organization addressing the notion of “anchoring.” Discussing this study, the WSJ article said:

“The research explores a behavioral trait called ‘anchoring.’ That is a common tendency to rely on the first piece of information offered (the ‘anchor’) when making decisions. Once buyers have an anchor, they typically interpret other information involved in the sale around it.”

It struck me that this “anchoring” phenomenon must have some application in other corners of the negotiation world, including what I do, settlement negotiations. We toss around terms like “low ball” and “inflated demand,” but I’ve never given too much thought to the deeper psychological implications of the launching point for negotiations.

I decided to solicit some thoughts on this point from experts, so I asked two prominent Los Angeles neutrals, Mark Loeterman (mlmediation.com) and Jeff Kichaven (jeffkichaven.com), for their view on the notion of “anchoring.” First, though, I reflected how I receive an extremely high asking price when shopping to purchase a piece of property or commencing a settlement negotiation. I’ve never had the experience of shopping for real estate without some kind of budget. If a house is priced outside that budget, even factoring in some cushion for negotiations, I won’t even look at it.

In the context of settlement negotiations, a ridiculously high demand can have a similar effect. While I don’t usually have the luxury of passing or ignoring a settlement demand, an outrageously high demand can have the effect of “anchoring” in my mind the notion that the case probably won’t settle, at least until something drastic happens to force my opponent to be reasonable.

Both neutrals I spoke with echoed this as a legitimate concern when dropping anchor. Jeff Kichaven pointed out that, “Sometimes opening numbers are so high, or so low, that they seem untethered to the realities of the negotiation, and are dismissed out of hand.”

What to do? If anchoring works because it sets the stage for all negotiations that follow, but must not be so overreaching that it “alienates” (my term) the parties, then it makes sense to push the envelope, but not too far. As Mark Loeterman remarked, “For anchoring to work, set initial offers and demands at the far edge of the credible zone so they can be rationally defended and invite further bargaining.”

Otherwise, it is not clear whether an overly aggressive opening demand or offer can be forgotten or cloud the entire negotiation. As Jeff Kichaven pointed out, “The interesting question to which I do not know the answer is whether “absurd” numbers also influence the later negotiations, or whether they are truly forgotten, and forgiven, as the negotiation goes on.”

So, when commencing negotiations, drop anchor, but do it with care, lest you do more harm than good.

Do you share my occasional fear, when addressing a large group, whether it be a jury or a room full of potential clients, that I will forget what I’ve prepared to say? Go ahead, admit it.

Well, I’ve been wrong all of these years to be afraid of forgetting. According to Brian Johnson and Marsha Hunter, authors of The Articulate Attorney: Public Speaking for Lawyers, it’s not a question of whether I’ll forget, but rather how will I recover when I forget. Turns out that forgetting is inevitable.

“That you will forget periodically while speaking under pressure is a given. Think how easily you can lose your train of thought when conversing with your friends. You pause and confess, ‘I lost my train of thought. What was I talking about?’ If this happens regularly during casual conversation, it’s bound to happen during more formal presentations. The obvious solution? Plan to forget. Know that it is going to happen, and be prepared.” (Id. at 81.)

The authors offer a couple of intelligent strategies to plan to recover when you’ve forgotten. First of all, get comfortable with silence. This will not only make your recovery smoother when you forget, but I believe it will make you a better, more compelling speaker overall. If you’re comfortable with silence, you’re less likely to rush to fill empty, silent spaces, and more likely to use strategic pauses for dramatic effect. Whenever I see a skilled public speaker at the top of his or her game, I’m always impressed with their pacing and liberal use of pauses to maintain the audience’s interest or build dramatic effect.

If you become comfortable with silence, I suspect you’re also more likely to relax and remember what you think you forgot. The authors write, “pause long enough in silence to make sure you really can’t remember what you wished to say. The next thought may not quite be on the tip of your tongue, but it is almost certainly somewhere in your brain. Give yourself a moment to find it. ” (Id. at 82.)

Of course, if you really can’t remember, don’t sweat it. Give yourself a moment to review your notes. In this regard, the authors suggest making a “transitional utterance.” For example, if you’ve completed a thought and just can’t recall what’s next, perhaps say “Let’s move on” and consult your notes. “You are moving on, so it makes sense to refer to your notes to see what is next. Or, you can use the same line simply to stop and think.Your audience will understand what you are doing. You have announced that you are moving on, and they see that you are thinking.” (Id. at 81.)

If you can’t remember a precise fact, such as a date or dollar amount, the authors recommend handling it this way:

“Now the date the contract was signed [you suddenly can’t remember, so you say] . . . 

I want to get this exactly right [and return to consult your notes] . . . the date was September 17th.” (Id. at 82.)

The authors suggest that this strategy can actually enhance your credibility. When you review your notes, “[t]he audience sees such careful behavior as an indication of due diligence; it can even boost the speaker’s credibility.” Id.

So, next time you’re planning a presentation, don’t forget to plan to forget what you’re planning to say. (Do I sound like Dr. Seuss?)

It’s probably my mind playing tricks on me, but I have a foggy memory, from younger days, of removing my belt and shoes in order to forge through the security screening apparatus and into the United States District Courthouse for the Central District of California, for the sole purpose of witnessing a senior lawyer from my law firm trying an insurance bad faith case against Mike Piuze, who was something of a legend around Southern California courts at that time.

Once I got past the screening and the nonsense and made my way up to the courtroom, I entered just as my colleague was finishing a cross-examination of one of Piuze’s witnesses. It wasn’t this examination that captivated me–I actually have no memory of it–but rather seeing Piuze sitting at counsel table, alone, with nothing in front or around him but a single yellow legal pad.

As I say, my memory might be fooling with me, but the picture I carried away from that visit to the courthouse was of Piuze in trial against some behemoth insurance company armed only with his brain, a notepad, and his ego.

Well, whether I’m accurate in my recollection about what Michael Piuze takes with him to trial, most of the rest of us mere mortals generally bring along something called a trial notebook. I know that I’ve assembled several over the years, many for senior partners and a few for myself. It seems everyone includes a little something different in their trial notebook. For this post, however, I thought I’d consult that sage don of all things trial-related, Professor James McElhaney.

Ironically enough, the first chapter of McElhaney’s Trial Notebook is devoted entirely to the topic of assembling and using a, well . . . trial notebook. Clearly addressing us at what he presumes to be the brisk and hazy dawn of our careers, McElhaney writes:

“There are many rewards to using the trial notebook system. First, and probably most important, is that it helps you find things during trial, from particular passages in a deposition to the right response to your opponent’s objections. . . . Second, if you are a junior in a firm, the trial notebook can help you in two ways: it can let a senior review your work in advance of trial, and it will impress your senior that you know what you are doing.
Third, if you prepare a good trial notebook, it is much easier for a colleague to take over if anything should keep you from trying the case.” (Id. at 4-5.)

Fair enough. But what should you include in your trial notebook? Here’s what McElhaney suggests:

1. A Table of Contents and Index.

2. Analysis of the Case. “Here is the place for all sorts of notes, whether formal or informal, that go to make up your battle plan–from ideas about preliminary motions and jury selection to thoughts about final argument and requests for instructions.” (Id. at 6.)

3. Analysis of the Opponent’s Case.

4. Proof Checklist for the Case.

5. Jury Selection. “What you do during voir dire is a subject all to itself. But whether you get to ask the veniremen questions or it is all done by the judge, you cannot tell the players without a scorecard. For this you need a chart, a group of squares assembled like a map of the way the panel of prospective jurors is arranged, in which to write their names and make some notes.” (Id. at 7.)

6. Opening Statement.

7. Stipulations and Pretrial Order.

8. Witnesses. This should not only include the witnesses’ names, addresses, multiple telephone numbers and an indication whether they have been subpoenaed, but also “a short paragraph (just one or two sentences) explaining why this witness is being called to testify: just what it is you expect to prove with this person.” (Id. at 9.)

9. Examination Outline(s) for Witnesses.

10. Proof Checklist for Witnesses.

11. Deposition Index.

12. Documents and Exhibits. Here, McElhaney envisions both a list of documents and the documents themselves. Unless your case concerns a fender-bender or a simple breach of contract or debt owed, chances are you will want to break down the witness examination outlines, deposition index(s) and document and exhibits into their own separate notebooks. Experiment until you find what works right for you. One thing I’ve found really useful, though, is to include a page for every important exhibit on which you anticipate your opponent will make evidentiary objections; here you write an argument or two, or case or code citations to answer each objection. Much easier than thinking on your feet, though you have to do that, too.

13. Evidence and Procedure Memoranda. (See the last sentence of the last paragraph–unlike McElhaney, I don’t give this its own place in the notebook, but try to tie the anticipated objections and responses to particular exhibits or even witnesses. Again, find what works for you.)

14. Final Argument.

15. Motions and Requests for Instructions.

Again, you will want to experiment with what kind of trial notebook fits your style. Big cases, tried by teams of big firm litigators, spawn multitudes of notebooks, each individually devoted to a particular motion, or witness. But even in these circumstances, I think it is helpful to have a single, core trial notebook–a space where you bring it all together, and develop (and modify) themes and strategies. If you don’t want to call it a trial notebook, call it a playbook. But, unless you’re Michael Piuze, you’ll probably do better at counsel table armed with something more than a legal pad.

“Many of our most gifted legal writers have used figures of speech, or ‘graces of language’–not just insidious vagaries–to give their prose greater force. Figures of speech help make writing something more than serviceable; they help make it memorable.” (Id. at 147.)

Now, introducing rhetorical figures requires practice and should not be overdone. If done badly, they can be . . . well . . . done badly. As Garner himself says:

“Figures of speech are to be used only when they achieve the particular effect–a special emphasis or an aphoristic quality–that you require. Many of them are appropriate primarily in elevated writing . . . . If you were to pack your prose with them, without regard to what you were saying and why, you would achieve only an unintended humor. Experiment cautiously: The plainest possible style is far superior to one that is artificially decorated with figures of speech.” (Id. at 148.)

Here are four rhetorical figures with which most of us have at least a passing familiarity, even if not by name:

1. Metaphor. This is an “implicit comparison between two things of unlike nature that nevertheless have something in common. A metaphor says not that a thing is like something else, but that it is that something else.” Id.

Two examples:

“Juries are not leaves swayed by every breath.” – L. Hand, J., in US v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).

“A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.” – Denning, L.J., Seaford Court Estates Ltd v. Asher [1949] 2 K.B. 481, 489.

It has been observed that “a skillful writer with metaphors seldom commands them to appear. He collects visual and auditory impressions and waits for them to form into metaphors while he is writing. He draws them from his close knowledge, intimate experience. He does not calculate or manufacture them. ” Ken Macrorie, Telling Writing 207 (1970).

2. Irony. A personal favorite. I love irony. I also, unfortunately, seem to have very limited patience for people with no sense or appreciation for irony. Are they not the dullest knives? Of irony, Garner writes:

“The use of words whose literal and figurative senses are opposites; that is, the difference between what seems to be said and what is meant. The chief weapon of satirists, irony subverts the reader’s expectations. (Garner, at 153.)

A couple of examples:

“I cannot say that I know much about the law, having been far more interested in justice.” – William Temple, the former Archbishop of Canterbury, speaking at the Inns of Court, as quoted in Lord Denning’s The Road to Justice 1 (1955).

“The only thing about the appeals which we can commend is the hardihood in supposing that they could possibly succeed.” – L. Hand, J., in US v. Minneci, 142 F.2d 428, 429 (2d Cir. 1944).

3. Anastrophe. (Also known as hyperbaton.) “The inversion of the customary or logical order of words or phrases, especially for the sake of emphasis.” (Garner, at 157-58.) Here are three examples:

“Rules we must have.” – Jerome Frank, Courts on Trial 411 (1949).

“On the words you use, your client’s future may depend.” – Lord Denning, The Discipline of Law 5 (1979).

“Constitutional choices must be made; to all of us belongs the challenge of making them wisely.” – Laurence H. Tribe, Constitutional Choices vii (1985).

4. Alliteration.  Another personal favorite. Frankly, I probably overuse it. Alliteration is “[T]he noticeable or effective repetition of similar sounds, either in the vowels (assonance) or in the consonants (consonance).” (Garner, at 165.)

Here are a couple of good examples:

“The life of the law has not been logic; it has been experience.” – Oliver Wendell Holmes, The Common Law 5 (1881).

“A quarter century has wrought no revolution among the professional purveyors of pretentious poppycock . . .” Fred Rodell, Goodbye to Law Reviews–Revisited, 48 Va. L. Rev. 279, 286 (1962).

Should you attempt to incorporate alliteration, anastrophe, irony or metaphor into letters or briefs? That is more than a rhetorical question. The answer depends on whether you’re comfortable and confident that a particular figure works. Only use a figure if it seems to fit naturally. If you have to “shoe horn” it, it’s probably better left out.

I last wrote, rather flippantly I thought, about why, when given the choice, I generally shun arbitration in favor of mediation. One of the comments I received, from über-neutral Deborah Rothman, suggested that I owed it to my readers to check out the set of Protocols developed by the College of Commercial Arbitrators to address the kinds of issues I raised in my post. Well, I did. And it turns out this user-friendly, publicly available monograph, Protocols For Expeditious, Cost-Effective Commercial Arbitration, has a fair amount to offer on the subject of . . . well . . . making commercial arbitration more expeditious and cost-effective. Thank you, Deborah.†

By way of introduction to the Protocols, I thought it made sense to highlight just a few of the suggestions contained in the Protocols aimed specifically at outside counsel. (There are also separate Protocols for business users and arbitrators.) Here you go:

1.  Know What You’re Doing.

I spent so much of my post bashing arbitrators, that I managed to overlook a very important point: it helps if the lawyer advocates have a clue what they’re doing. We generally assume this means having a grasp of the body of law governing the subject of the dispute. While that’s surely crucial, the Protocols point out that it is equally important that counsel understand the unique rules of arbitration advocacy. As the authors comment:

“Counsel who agree to represent parties in commercial arbitrations need to have a solid understanding of the arbitration rules that will apply, the practices of the provider that is administering the arbitration, and the growing body of state and federal arbitration law. They should know how to navigate the arbitration process in an economical yet effective way.” (Id. at 61.)

2. Select Arbitrators With Proven Management Ability.

I would argue that careful selection of the neutral is the single most important step when engaging in any form of alternative dispute resolution (ADR). This Protocol recommends going even farther. It suggests:

“Counsel should do a thorough ‘due diligence’ of all potential arbitrators under consideration and should, consistent with the Code of Ethics for Arbitrators in Commercial Disputes, interview them concerning their experience, case management practices, availability and amenability to compensation arrangements that would incentivize them to conduct the arbitration efficiently and expeditiously.” (Id. at 62.)

3. Seek to Limit Discovery In A Manner Consistent With Client Goals.

I have mixed feelings about this Protocol. One of the problems I’ve historically had with arbitration involves limitations on scope of discovery. It’s fine for the parties to have a goal at the outset to limit discovery to only what is necessary. But it can become a problem if the parties (or one of them) are too optimistic, leading to an overly restrictive scope of discovery. This is what the drafters of the Protocols have to say:

“Discovery is far and away the greatest driver of cost and delay in litigation and in arbitration. . . Outside  counsel have an obligation to make sure the client understands the limitations inherent in arbitration discovery, to assess how much (if any) discovery is truly needed in the case, and to ascertain how much time and money the client is willing to expend in turning over stones.” (Id. at 64.)

See, it’s this “how much (if any) discovery” nonsense that troubles me. In my experience, a client’s case rarely gets worse by conducting discovery, and generally it gets an awful lot better with sufficient discovery. I do recognize that, at some point–generally earlier than later–discovery begins to yield diminishing returns. But the only time I’ve had a bad outcome at an arbitration was when I inherited a case on the eve of the arbitration hearing from a rather dim-witted colleague and the only discovery permitted and conducted was a set of document demands. It was the very worst experience. I say this: if don’t want to conduct discovery then forget arbitration and forget hiring a lawyer and bring your dispute in small claims court. Seriously.

4.  Periodically Discuss Settlement Opportunities With Your Client.

Being an effective, client-centric litigator, whether in trial court or arbitration, requires us to think simultaneously in two different directions. It can be challenging. Even as our client’s case improves, we need to continue questioning whether their interests would truly be better served by negotiating a settlement. This is one of the reasons I think we should strive to adopt the Mr. Spock way of purely rational, objective thinking.

The Protocols authors say this:

“[P]ropitious opportunities for settlement often appear at multiple points during arbitration, including during discussions with opposing counsel in preparation for the preliminary conference, after briefing or rulings on significant threshold matters, on completion of all or particular discovery, after submission of dispositive motions, during the hearing, and after submissions of post-hearing briefs. At all of these stages, outside counsel should re-evaluate their initial case assessment and discuss with the client the pros and cons of pursuing settlement.” (Id. at 65.)

5. Recognize and Exploit The Differences Between Arbitration And Litigation.

Pretty much consistent with my post, the Protocols dispel any lingering hope we may have for success at summary judgment or rigid adherence to the rules of evidence. The drafters say:

“Counsel should . . . keep in mind that dispositive motions are rarely granted in arbitration, and should employ such motions only where there will be a clear net benefit in terms of time and cost savings. Counsel should be aware that arbitrators tend to employ more relaxed evidentiary standards, and should therefore avoid littering the record with repeated objections to form and hearsay.” (Id.)

Yes, your otherwise valid evidentiary objections in an arbitration hearing may not be worth the cost of your breath. They are, both literally and metaphorically, “litter,” or useless trash. They could actually irritate the arbitrator (not to mention your opponent). While the Protocols topically suggest we should “exploit” these differences between arbitration and litigation, neither the Protocol nor the accompanying comment offer much advice about how to turn the lack of available dispositive motions or rules of evidence to our advantage. I’m unconvinced.

While it’s unlikely to provide any immediate relief, one of the Protocols urges lawyers to “work with providers to improve arbitration processes.” (Id. at 67.) I suspect (but have not yet confirmed) that there may be a corresponding Protocol aimed at arbitrators which suggests they give serious consideration to advocates’ comments and suggestions. At least for now, I will continue to prefer mediation to arbitration as an effective form of ADR. However, the Protocols seem to invite a dialogue, which would seem like a step in the right direction

†Ms. Rothman, along with Curtis von Kann, are Associate Editors of the Protocols. Thomas Stipanowich is the Editor-in-Chief.

But when I do, I vastly prefer mediation to arbitration. Here are five reasons why:

1. The Split-The-Baby Problem.

I’ve had retired judges and other neutrals tell me they don’t like presiding over arbitrations because they invariably lose a future potential client: the lawyer for the losing side. There is one thing arbitrators will try to do to temper this inevitability: they may issue a “split the baby” award, giving an allegedly aggrieved plaintiff something even if he failed to prove his case or suffered no damages. While many will argue that a small “split the baby” award is far better than a runaway jury verdict, in cases involving fee-shifting statutes, such as employment discrimination litigation, the employer who might have won outright in front of a jury is forced to pay the “prevailing” plaintiff’s attorney’s fees (in addition to the arbitrator’s fees and costs).

2. Informality Is Not Necessarily A Good Thing.

It is often thought that arbitration is preferable to a bench or jury trial because the proceedings tend to be more informal. Informality might sound good, but it can be a problem if your arbitrator decides to relax the rules of evidence (which is typically within her discretion) and your opponent’s case hinges on an item of otherwise inadmissible evidence, such as a hearsay statement.

3. No Appellate Review.

What do you do if you lose the arbitration due to a clearly erroneous ruling by the arbitrator? Don’t look to any appellate court for relief. While it is true that the Federal Arbitration Act (FAA) and other schemes may create a situation in which some appellate review is available, the circumstances and scope of review is inevitably limited compared with a state or federal appellate court.

4. Good Luck With That Summary Judgment Motion.

While it can be argued that certain courts are more or less likely to grant meritorious summary judgment motions, many will agree that obtaining summary judgment in a case pending before a private arbitrator may be the toughest sell of all. Without naming names, I suspect there are two reasons for this. First, an arbitrator who grants summary judgment is foregoing a significant income opportunity. While many first-rate neutrals are so fully booked they have no trouble filling time gaps created by a vacated arbitration hearing, this is not always the case. Second, a party who is deprived its right to a full evidentiary hearing because of a summary judgment will almost certainly feel shorted. Her lawyer is unlikely to hire the neutral again.

5. It’s Damn Costly.

Many practitioners feel as I do that arbitration is just too costly to be seriously considered as an alternative to resolving a dispute in state or federal court. In addition to the arbitrator’s hourly rate, which equals or exceeds that of most lawyers, many ADR providers tack on large administrative charges. Those of us that represent employers in employment litigation are stuck trying to explain to our clients why they must deposit, in advance, all of the arbitrator’s fees and costs.

I recognize these are pretty broad strokes. But in most instances, given the choice between a bench or jury trial and a binding arbitration, I’d prefer to stay in court and try to resolve the case through mediation.

Again and again the message I hear from accomplished trial lawyers is that preparation is the absolute key to success in the courtroom. I previously wrote a post endorsing what I will term a “guerrilla” mock trial exercise as a valuable component of this preparation.

Why “guerrilla”? While firms across the country will gladly perform Cadillac-quality jury research, using state-of-the-art facilities and carefully selected mock jurors, this requires a level of investment that is far outside the budget for most parties facing a trial. A “guerrilla” mock trial, in which  you invite office staff, friends or even relatives to act as jurors, and use whatever space is available, can provide a reasonably priced alternative to a full-blown mock trial, rendering the unquestionably useful exercise available to parties that aren’t Fortune 500 companies. Just be sure to validate the jurors’ parking and buy them lunch.

In a perfect world, we would have the opportunity to present every aspect of the case to multiple sets of mock jurors before the big day. Since we live in the real world, however, I’ll focus on one aspect of mock trial presentation that I’ve personally found useful: preparation of one or two key witnesses for their cross-examination. In fact, doing direct and mock cross-examinations, in front of mock jurors, can be an excellent way to prepare a witness who is nervous, inexperienced at testifying or otherwise expected to struggle on the stand.

What is involved? First, I recommend running through several mock direct and/or cross-examination sessions alone, with no jurors present. It is hoped these preliminary exercises will smooth out and/or help identify particularly rough areas of examination. When the jurors are present, both counsel and the witness should treat the exercise as a dress rehearsal, taken seriously, without interruption.

It can be useful to provide the mock jurors with questionnaires following the examination, asking specific questions. For example, if the witness is expected to be presented with potentially damaging impeachment evidence during her cross-examination, it could make sense to ask in the questionnaire something like: “Did the evidence that _________ make you question the witness’s credibility?”Alternatively, if you are presenting a direct examination of a witness, and there is concern about the witness’s ability to provide a clear explanation, the questionnaire could ask: “Was the witness’s explanation of ______________ completely clear? Was it confusing? If so, what made it confusing?”

Another idea is to combine a mock opening statement presentation with examination of one or two witnesses. Jury consultants often present mock juries with “staged” questionnaires, to see how jurors receive and process new information. For example, jurors can be asked to complete a questionnaire following the mock opening statement. Then, they can be asked to complete an additional questionnaire following the mock direct and/or cross-examinations. Learning how the mock jurors process new information in the context of the case can help counsel develop a strategy for dealing with potentially damaging evidence–one of the great benefits of jury research.

It is a good idea to videotape the examination. This makes it possible to spend time after the mock trial reviewing the witness’s posture, demeanor or other issues both alone and, if necessary, with the witness.

A couple of additional thoughts. First, it is a good idea to reinforce the notion that the mock trial and any of the information discussed during the mock trial, should be treated as confidential. Remember, too, that there is no attorney-client privilege covering information conveyed to mock jurors, so take care not to inadvertently waive the privilege. Second, if the budget allows for a jury consultant to participate in the mock trial, this can be hugely helpful. Consultants have extensive training, and have typically participated in many, many mock trials and/or other focus group work and will bring an entirely different dimension to the analysis.

So, next time you’re getting ready for trial, think about incorporating a “guerrilla” mock trial as part of your preparation.