So much in our lives, both professional and personal, lies outside our control. Focusing on the professional, most lawyers will never be fortunate enough to be able to limit our practice to only perfect clients who march into our office carrying a perfect set of facts which, when presented to a judge and jury, are virtually guaranteed to yield an excellent outcome.

A less pessimistic view is to recognize that what makes our practice so interesting and challenging (on those occasions when it is interesting and challenging) is the fact that we are forced to take a set of imperfect facts, involving a group of imperfect actors, and turn water into wine, capitalize on the positive, downplay the negative and procure the very best result for our clients. Sometimes this means pulling a rabbit out of a hat.

Given that so much is beyond our control, it would seem to me to make all the sense in the world, at least professionally, to take steps wherever we can, flex our muscles, to influence an outcome to the greatest extent possible. In the interest of progressing beyond the general to the particular, I’m referring once again to the issue of preparation.

This time, though, my focus is on preparation for settlement discussions. I’m thinking specifically about a recent settlement conference I attended in an employment discrimination case. The case was nearing trial and this settlement conference was the parties’ one last chance to talk turkey. Because this case was pending in federal district court, there had been a pretty decent interval of time, a few months, between completion of discovery and the settlement conference (in state court, by contrast, at least in California, the parties may not complete discovery until a month or less before trial). I made the assumption that because I was immersed waist-deep in writing motions in limine and formulating trial strategy, that my opponent–an older, more seasoned lawyer–was surely equally immersed and conversant in the facts and theories of the case.

Eh . . . Not so much. While we were sequestered during the first part of the conference, the judge ultimately decided to bring all the lawyers together because he figured we might make more progress debating the merits mano a mano. It then became abundantly clear that my opponent didn’t know his case. (In hindsight, I might have been tipped off to this by the fact that he had just days before served 17 motions in limine, several of which had nothing to do–literally nothing at all to do–with the facts of our case.) Worse, not only did he not know his case, he was haughty, bombastic and steadfastly indignant about the absolute, unquestionably unquestionable merit of his client’s discrimination claims, only he had no evidentiary basis to back them up. It was kind of ridiculous, really.*

What kind of message does it send for a lawyer to be out of touch with the key facts of his client’s case so close to trial? I can tell you what kind of message it doesn’t send. It doesn’t inspire fear or grave concern. It doesn’t, and didn’t, make us rush to write a check. The case did ultimately settle, but it was a “cost of defense” settlement in the purest sense. Actually, it was a-little-less-than-half-the-cost-of-defense settlement. In other words, great outcome for my client, not such a good outcome for my opponent.

In fairness, the plaintiff didn’t have a kick ass case to start with. In fact her case sucked. And we knew it. So this story might not be the most potent example of how preparation can make a difference in settlement negotiations. But it is a cautionary tale, because counsel was so out of touch with the facts that, even if his client had had a really good case, we still wouldn’t have paid much. His lack of preparedness made his client’s case weak, regardless of the facts or evidence.

*For example: the plaintiff’s employment was governed by a collective bargaining agreement. This was no secret. The agreement had been produced and referenced repeatedly in discovery, and the fact that plaintiff’s employment was so governed constituted a major component of our defense. When given his turn during the joint session of the settlement conference to articulate his client’s position, however, almost the first words out of my opponent’s mouth was a suggestion that “this was the first he’d ever heard” about any collective bargaining agreement. Just ridiculous.

I recently participated in a conference about negotiation. I left with a list of negotiation “pointers,” short strategies to help keep your eyes on the prize when negotiating. I’ll share five good ones here.

1. Set your goals ahead of time and come prepared with alternatives. You (should) know you will be making concessions in the negotiation process; try to think of what concessions are acceptable and where you’ll need to draw the line. In this planning, also anticipate your opponent’s points and develop responses.

2. Make sure the other side feels heard and understood. Then make sure they hear and understand you. If either party to a negotiation is not being heard, it’s not really a negotiation.

3. Don’t be dragged into an emotional response. Condescension, rudeness or bullying should be firmly met. Don’t back down–remind them that you came prepared to make a deal and that you thought they did too, then transition back to the points you want to discuss. Once your opponent realizes their tactics are not intimidating you, they will likely stop.

4. “Horse trade” when making concessions. Try to make concessions conditional on an equal or greater concession by them. Also, before making a concession, try to find out what additional concessions they will ask for before signing an agreement.

5. Don’t be afraid to invoke a “cooling off period.” If you reach an impasse, or are not sure what move to make next, consider asking your opponent to give you 24 hours to consider their last move. A corollary is not to be so eager to make a deal that you make concessions you will later regret.

And, remember, we’re all counting on you.

It is no exaggeration to say that I learn something (or many things) from every mediation or settlement conference I attend. I recently traveled to Fresno to attend a settlement conference before a talented and hard-working USDC magistrate judge. During the conference he made a point that had escaped me before, but hopefully never will again.

First some background. This was an employment discrimination case in which the plaintiff alleged harassment, retaliation and constructive discharge, which would require her to prove that her working conditions were so intolerable that a reasonable person in the plaintiff’s position would literally have had no choice but to quit.

Early in the settlement conference, the judge met briefly with the lawyers and parties altogether. He employed an interesting, but effective approach. He spent a bit of time talking about the parties’ respective cases, focusing on each side’s weaknesses. After a few minutes of this, he said “here’s where I see the range,” and proceeded to give us a bracket.* The bottom of the bracket was well above where my client, the defendant, was prepared to negotiate so early in the settlement conference. However, the top of the bracket was well below where we knew (from prior discussions with her counsel) plaintiff was interested in beginning negotiations. Thus, both sides were equally unhappy. The judge concluded this introductory session by excusing us to meet separately with our clients. If both parties were interested in negotiating within the judge’s bracket, we should return after lunch and continue the settlement conference. If either party was not willing to begin in the bracket, we were instructed to so advise the judge’s clerk and we would be excused for the day.

What I liked about this approach was how it cut through a lot of preliminary posturing. While I would not recommend it for a paid mediator, it was effective coming from a USDC magistrate judge. Both parties reluctantly agreed to negotiate within the bracket and, several hours later, we settled the case.

One of the things the judge pointed out when he was apprising plaintiff and her lawyer of weaknesses he perceived in her case related to where the jury venire would be drawn from if we did not settle. Had the case been pending in state court, jurors would have been drawn solely from Fresno county, which apparently enjoys a healthy mixture of middle and lower middle class jurors owing to a university and, if not thriving, at least sustaining local agriculture-based economy.

But, because we were in the Eastern District federal court, our jurors would be drawn, not only from Fresno county, but also from several surrounding counties. The judge pointed out that jurors from many of these surrounding counties will have been struggling financially since before the recession. Jobs are scarce. Many of these jurors, the judge said, will not be particularly sympathetic to the notion that any person who was lucky enough to have a job would voluntarily chose to leave, regardless how bad the conditions were.

Whether this hit home for plaintiff or her lawyer I don’t know. But I thought it was a pretty powerful point. Forum shopping is nothing new and our opponent had unsuccessfully fought pretty hard against our removal of the case from state to federal court. But, if you find you’re in a venue in which the jurors are not going to easily receive your client’s theory or conduct, it’s important to factor this into your strategy and presentation.

How do you figure out if you’re up against this kind of “region bias” on any particular issue? I had spent some time looking at census statistics for Fresno, thinking I was gaining some understanding about our potential jurors, completely overlooking the fact that a district court draws from outside the county. There’s your answer, though. Find out definitively where jurors for your courthouse will be drawn from and analyze that entire region. A better approach, though, might be to retain local counsel (always a good idea, in my view, if the case warrants the cost and you can find reliable local counsel).

Whatever you do, it’s critical to find out where your jurors will hail from, and be perceptive to possible “region bias” issues that could impact your client’s success at trial.

*Of his “throw out a bracket” approach the judge said he would normally never “just put a number out there,” but he was pressed for time that day, as he had meetings and a hearing he had to fit in around our settlement conference. Ironically, throwing out the bracket was probably the most intelligent thing the judge did all day.

Every one of us carries a measure of optimism whenever we decide to undertake something. Undoubtedly owing to a cluster of deep-seated personality defects, I find I often see a glass as half empty. I don’t begrudge this aspect of my personality; it tends to make me a conservative investor and a boring gambler.

Most successful plaintiff lawyers I’ve worked with, however, seem more often than not to be glass half-full types. Let me clarify what I mean for the benefit of any readers who aren’t familiar with the American system of jurisprudence. I’m referring specifically to lawyers who agree to take on clients and cases on a contingency basis. Under these circumstances, a lawyer agrees to represent a client or clients in a lawsuit without any fees unless and until there is some recovery, by settlement or judgment. There is always an investment of the lawyer’s time and often the lawyer also agrees to advance the costs of litigation against the chance of recovery. If the case or claim is successful, the lawyer is reimbursed the costs she advanced and she also receives an agreed upon percentage of the recovery.

It’s not difficult to see how one would have to be something of an optimist to take any case on contingency, though a better quality case against a deeper-pocketed defendant tends to reduce the risk. In fact, some of the wealthiest practicing lawyers earned their fortunes through contingency fee litigation.

Not long ago, I handled a case against someone so optimistic about his client’s case that he was literally “drunk” on his own Kool Aid. So drunk, in fact, that he didn’t sober up until after he lost the trial and his client hired another lawyer to represent her in her appeal. It wasn’t that his client had a drop dead loser of a case. The case actually had some sexy facts; the kind of facts that can make jurors rock back and forth in their seats with interest. Things could have gone the other way, and he could have won. But it wasn’t that good of a case, and he could have and should have tried earnestly to settle before rolling the dice with the jury. He was just too buzzed to see the glaring weaknesses or put a realistic settlement value on the case. He never got within a range in which it made the remotest sense for my clients to make any serious offer–so they didn’t.

I recognize the counter-argument can seem compelling. After all, some of the biggest jury verdicts came out of situations in which David took on Goliath and prevailed against all odds. And I’ve already admitted I tend to see the glass a half empty. But what set my “drunkard” opponent apart from another, wiser lawyer was his steadfast refusal to give any weight to the opinions of two separate neutrals (a mediator he had selected and a USDC Magistrate Judge sitting as a settlement officer), who both told him he was being ridiculous in his expectations and wrong on a pretty important issue of the law.

Is it possible to be a “sober” optimist? Sure. One way is to pay attention if multiple neutrals (including one you selected) suggest you’re off the mark. Of course, neutrals may not always be truly neutral, even when you’re paying them to (i.e., when they’re leaning on you in a mediation). Another approach is to submit your facts and arguments, including what you expect the other side will say, to a mock jury–even a cheap one like I described here. I’ve also known lots of lawyers (even really skilled ones) who will ask every colleague they know what they think about a set of facts, just to see if they’re missing something. There’s nothing wrong with this, as long as you don’t inadvertently waive the attorney-client privilege.

One final thought: being a “drunk” optimist is fine: (1) as long as you’re gambling only with your own time or money; or (2) just like elective surgery, if you fully inform the client of all circumstances, including the risks (or likelihood) of walking away with nothing, and the client understands and is just as eager to roll the dice, then by all means roll the dice.

I asked several top Southern California mediators I know personally or by reputation to share their best “tip” for success at mediation. In exchange for their labors, I promised the prestige and notoriety of being featured on this humble but aspiring blog. Several neutrals cheerfully responded and provided some great tips. The following are the best 6 responses I received:

Jeff Kichaven (www.jeffkichaven.com): “Prepare, prepare, prepare.  Get your brief to the mediator a week before the mediation.  Give the mediator time to read it, think about it, read it again, and call you to discuss it.  That phone call – 10 to 20 minutes at most – can be the most important time in the whole mediation process.   Be sure to discuss:  (1) What are your biggest challenges in the mediation?  (2)  What are your expectations of the mediator?  (3)  What should the mediator know about the personalities of the participants?  (4)  Is an Opening Joint Session a good idea?  And, (5), What should happen if you or the mediator think that the other has a “blind spot” or just doesn’t get something?  The answers can vary widely from case to case!  Once the mediator knows your thinking on these subjects, he can prepare for the “people issues” as thoroughly as he can prepare for the legal and factual issues.  The mediation will be specially designed to meet your needs, and the needs of your client, in this particular case.   This kind of preparation will help get the mediation off on the right foot, and almost always lead to greater client satisfaction with the result, with the process, and with your performance as counsel.”

Mark Loeterman (www.mlmediation.com): “Information translates into power, both in litigation and at mediation. The careful use of information is an integral part of your bargaining strategy. At the outset, it is important to plan what information you need to obtain from, and provide to, the other side so the parties can have a meaningful negotiation. Lawyers are guarded about the information they reveal. They fear giving up some advantage or losing the opportunity to surprise an unsuspecting witness. Here are some practical steps for handling information most effectively. First, solve the information gap. Ask the other side questions that are designed to buttress your position or better evaluate risks. Next, consider offering discreet information which shows strength and confidence in your case, such as an analysis of damages or a case citation that supports a decisive legal principle. On the other hand, negotiators must understand how they can protect their most important and sensitive information. If you want to learn how to perfect these “blocking” skills, simply watch a politician being interviewed. Adroit politicians use a range of techniques to avoid answering even probing questions. Information is a valuable commodity. Thoughtfully timing and presenting select pieces can yield significant concessions from your adversary. The mediator can arrange an exchange of information that is orderly and reciprocal, and can clarify the positions being taken, assuring that no party feels vulnerable and manipulated by a one-way disclosure.”

Michelle A. Reinglass (www.reinglassadr.com): “Some parties have difficulty giving up their lawsuit. If asked, “Are you ready to settle and put it behind you?” they may answer “yes”, but their actions belie that. The plaintiff may have difficult letting go of the one thing that has kept him/her going-the chance to get redemption, or revenge. The defendant may not want to let go because of the fear of looking weak, or setting precedent (despite promises of strict confidentiality with “teeth” for a breach). Fortunately most cases do settle, but for those that can’t, I follow them until the “end”, which is too often predictable. So, how can a party going to mediation wean themselves away from the lawsuit? First is getting reality checks about the merit, value & risks of their position. For most that will require “processing” to reach that understanding. Second, is seeing the positive picture of their life without the lawsuit as a major part of it, draining (more like “sucking out”) their energy and good health. It helps to focus on their positive goals beyond “revenge”, giving themselves their own redemption, not relying on someone else such as a judge or jury, to give it to them, which will often be disappointing; or focusing on getting a job, or performing better in their personal and business lives, or putting their energy back into running their business without employees distracted by depositions , “gossip”, or their own fears. I have often said that litigation is negative energy. I enjoy mediating for the opportunity to bring people and businesses back into the positive energy of life, rather than the drain of a lawsuit.”

Jan Frankel Schau (www.schaumediation.com): “Be prepared to be flexible. You can’t map out your strategy until you know what or who is driving the conflict, what path will work best for an exchange of communication and until the necessary emotion and anger and disappointment is expressed–to somebody–even if indirectly to the other side of the dispute.”

Mike O’Callahan (www.mocadr.com): “My single best tip for a successful mediation is for counsel to budget and make time and properly prepare for a pre-mediation call with the mediator. The call is independent for each party involved in the litigation and lets them know you have read their brief and you can question specific areas without the posturing that some lawyers feel they must do in front of their clients. Too many times counsel submit their briefs less than 5 days before and throw something together at the last-minute or they send a 160 page brief the night before the mediation. Either way the brief is not very useful. An opportunity missed to educate the mediator by counsel. The mediator has to be proactive and make sure the parties know there is a deadline for the briefs to be submitted that will allow the mediator time to review before the pre-mediation call. The call can then be used to determine what, if any, settlement discussions have taken place and the potential range of exposure for the parties before they walk in the door for the mediation. Also, it allows the mediator to ask for supplemental information before the mediation and focus on common ground to form a global resolution at the mediation.”

Hon. Michael A. Latin (ret.) ([email protected]): “The mediation, though designed to bring the parties together, is still part of an adversarial process. Therefore, appear fully armed and loaded with all of your ammunition. Bring all of your critical reports, documents, deposition transcripts, and even a critical witness if necessary. Remember, that while you have been living with this case for a year or more, the mediator has very little concrete information when the mediation begins. Often, the two sides give completely opposite versions of the state of the evidence on the same issue. One side may be more truthful than the other or there may be information gaps that prevent one or more parties from making a fair evaluation of their case. If the mediator doesn’t have anything tangible in front of him or her to evaluate the relative strengths of the parties’ positions or representations, resolution becomes problematic – particularly where one side is either incorrect or misrepresenting facts. Give the mediator the tools to flush out those issues during the mediation by bringing everything you have in your possession that may refute misrepresented or contested facts. This includes documents and information that has not yet been turned over. Your opponent cannot evaluate those things about which he or she is unaware. I have had several cases that have settled because one side, which had information about which the opponent was unaware, decided to share the information at mediation. Appear with all your ammunition!”

Even though you tuned in to hear from experienced mediators, I’ll add my own three cents. First, I completely agree with the suggestions that counsel take advantage of the opportunity to have a meaningful pre-mediation call with the neutral. This can be HUGE. Second, if there is a way to create and communicate to the opposition the illusion that you are fully prepared to start trial tomorrow, this can create leverage. (Obviously this is not possible in a pre-suit mediation, and difficult if there’s no joint session.) Third, unless and until you really know and trust the mediator (or settlement conference judge/magistrate), I would resist requests to prematurely share your final, bottom line offer or demand. The neutral’s top priority is to reach a compromise, not to act in your client’s best interests (that’s your job); unless you know from experience you can trust his or her promise to keep your final number confidential, I wouldn’t risk sharing it.

Perhaps this is unique to California, but I just received another announcement from our attorney service of a courthouse closure. In addition, the notice mentioned yet another court that, although not closing altogether, was being reduced by several newly darkened courtrooms.

As a lawyer who makes his living doing things court-related, I’m both saddened and alarmed to learn that entire courthouses are closing. It’s not that I’m sad or afraid because there are fewer lawsuits being filed (that appears to remain on the rise), but rather that there’s a rapidly shrinking number of venues available to resolve those disputes. It will take longer for cases to get to trial, resulting in fewer trials and less access to justice. It will also make it harder for newer generations of lawyers to get trial experience. (This is obviously a secondary concern, but it is a legitimate concern for many of us.) It’s . . . a . . . disappointing to live in such a perpetually mismanaged state. But I’ve been thinking about ways the judiciary and our profession can cope with this situation and I’ve come up with a couple of ideas.

First, I recently co-authored an article for the ACC Docket which talked about the notion of a “compressed” trial, in which the judge forced the parties to present a case that would normally consume 3 weeks in just 4 days. Much of the article discussed tips and suggestions how to better prepare for this kind of compressed trial format, but I also argued that lawyers and their clients should not just accept such a drastically condensed trial, but actually embrace the concept. After all, if a trial that would normally consume 3 weeks could be reasonably condensed down to 4 days,* that would free up 2 weeks in which two more highly compressed trials could be completed. Imagine completing 3 trials in the time if used to take to do just one.

There was a program introduced in some parts of California for the 1 day jury trial. I don’t know if that was successful or is still being practiced. But that’s not what I’m advocating. If the lawyers can shape a case to be tried in a day or less they will almost always do so on their own. But it takes a pretty heavy-handed judge to force the lawyers and parties to condense a 3 week presentation to something like 4 days. Perhaps more judges should do this. Just a thought.

Another idea involves ADR. If budget cuts are effectively privatizing access to justice in some places, it ought to at least be done right. A major concern centers around the cost of ADR, and I’m not talking about the hourly fees of neutrals. In my experience, the rates of most neutrals are commensurate, or even slightly less, than those of the attorneys appearing before them. But there are costs associated with working with an “institutional” ADR provider that tend to give our clients pause, and with good reason. If law firms are going to be squeezed and forced to do more for less, shouldn’t ADR providers do the same? What about more “solo” ADR providers?

My personal beef with ADR, at least arbitrations, is the inconsistent application of the rules of evidence. Appellate courts keep judges honest, but some arbitrators can and do dispense with evidence rules rather freely, which makes the hearing something of a chaotic free-for-all.

There’s no real silver lining to the issue of darkened courtrooms and closed courthouses. Wherever it occurs, there is reduced access to justice. Perhaps, though, we can collectively brainstorm and come up with constructive ways to manage the problem.

*Whether it was in fact “reasonable” for the judge to compress the trial this aggressively was a subject of some debate, particularly by counsel for the losing side which, fortunately, was not me.

Having the time and inclination to prepare as much as necessary–even over-prepare–really is a great equalizer when it comes to the trial lawyer’s craft. I had the good fortune to practice for a brief time with a distinguished aviation trial lawyer, Lee Horton, who gifted to me a primer he wrote years ago to help young associates learn how to try a case. In the Preface to this primer, he wrote:

“Whatever success I have had as a trial lawyer has been based on the following very simple rules.  These are: 1. Recognizing that there are a lot of people smarter than I am, but only a few that can outwork me.”

I am saving the remaining 3 rules from his primer for future posts. But when I read this first rule I found it to be a comforting revelation. I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.

It can be difficult to know precisely how much preparation is necessary. I find that the first time I do anything I tend to heavily over-prepare. For example, I do not frequently argue before appellate courts. However, a few years back an opponent appealed a favorable ruling I obtained on an anti-SLAPP motion. Fully briefed, it came time for oral argument of the case. I knew that I would want to over-prepare because only then would I feel ready for my first appellate court oral argument. I also knew I didn’t want my client to bear the financial brunt of this need to over-prepare, so I queried a few of my partners who had more appellate experience about how long they would typically spending preparing for such an oral argument. While I ultimately spent about three times as much as my partners suggested, I only billed the client for a third of my time.

We can learn from other disciplines about how much preparation is enough. I studied piano as an adult, and my teacher had attended the Moscow Conservatory and often shared stories from his time learning from one great master or another. He once described how hard he would work to prepare for a solo performance: when he thought he had memorized every nuance of a piece he would set his alarm to go off in the middle of the night. He would wake from a deep sleep, go immediately to the piano and play the piece. Only when he could literally play the piece, including every nuance, while still half asleep did he know he was really ready to perform.

There are multiple ways in which excessive preparation can be a weapon. I have learned from judges and mediators that the party whose counsel is better prepared is always at a distinct advantage in a pretrial mediation or settlement conference. On the other hand, there is no rule that says you have to make your opponent aware how prepared you are. I am a great believer in treating opposing counsel as a mushroom (i.e., keeping them completely in the dark) when it suits my strategy. Sometimes I want the element of surprise that comes from not revealing how prepared I am until it’s too late for them to catch up.

Is there such a thing as over-preparation to the point of diminishing returns? Undoubtedly. The key is to have enough lead time to accommodate the preparation you need without sacrificing your health, including mental health. Like most everyone, I pulled the occasional all-nighter in college and law school. But it was exhausting then, and it would be really exhausting now. Definitely not a good way to start a trial.

 

Should our trial preparation and presentation be appreciably different when trying a bench trial or arbitration before a single arbitrator? If so, how?

As in most instances, McElhaney offers spectacular guidance on this topic.  Instead of framing the situation as simply a bench or nonjury trial, he reminds us we are still trying a jury trial, it’s just that there is only one juror.  While some of the drama may be diminished, we’re still in the business of seeking a unanimous verdict.  That said, his chapter on Judge Trials from Litigation offers the following advice:

1.  Understand your jury.  “[K]nowing to whom you are talking makes a difference in what you say and how you say it.”  Instead of a half-hour voir dire session, you may have months and months to learn about your judge, including her biases and prejudices.  Make good use of this time.

2.  Win the case before you say anything.  Write a bench brief that really sings, focusing particular attention on the first three pages.  McElhaney quotes Houston lawyer William Pannill: “The first one to explain what the case is really about has a tremendous advantage. The bench brief is an opportunity to do that.”

3.  Don’t relax your presentation just because there’s only one juror.  Use the same care in the order of presentation of witnesses, be concise and concentrate on telling a story.

4.  Preserve objections.  Just because the judge hears evidence before ruling on its admissibility, it remains imperative to preserve the record for appeal.  In fact, objecting isn’t as potentially harmful in bench trials because the judge knows you have to do it.

5.  Finally, even if parts of evidence have been stipulated to, don’t leave these out when arguing the case to the judge or arbitrator.  McElhaney points out that it is sometimes the stipulated facts that “are the best proof of what the case is all about.”

I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases.  They can also be useful in trying to estimate a potential adverse verdict range.  I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients.  It was only because my firm represented such clients that I was able to get this first-hand experience.

Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets.  Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.

The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend.  I’m most familiar with the mock trial exercise, so we’ll use that format.  This requires, at a minimum, a suitable space and mock jurors.  “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes.  If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate.  Suitable also means private.  While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place.  Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.

Mock jurors–where to find them?  If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury.  This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap.  I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like.  Be prepared, not only to compensate the mock jurors for their time, but also to provide parking.  Thought should be given to providing food, assuming the exercise is going to last more than 3 hours.  It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.

If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise.  However, you still must find jurors from somewhere, which means employees, family and friends.  This might mean biases will come into play.  While unavoidable, this biases must be “factored into” the results of the research.

If the budget makes it possible, I highly recommend involving a jury consultant.  While some research can be done without one, it will be far less focused and productive.  The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing.  Crucially, a good jury consultant will help synthesize the information gleaned from the exercise.  After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.

To provide a concrete example of how this might work, my last mock trial  lasted one full day.  The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m.  They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire.  My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement.  Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.”  Each side then presented about one-half hour of “evidence.”  This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence.  Some evidence was presented simply as “facts to be assumed.”  Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session.  Somewhere in there we excused the mock jurors for a brief lunch break.

Most interesting and informative was the post-trial debriefing session.  Certain important facts had been purposely withheld from presentation during the mock trial.  These were then revealed incrementally.  This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations.  We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.

There are countless variations on this approach.  You can eschew the evidence presentation and simply read facts the jurors should assume.  You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received.  There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations.  The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise.  In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.