Jury consultants foster success in mediation
Help settle case before it ever goes to a jury
By Edward P. Schwartz
           
            I frequently get calls from lawyers after mediation fails, and they’re almost always incredulous that their opponent couldn’t see the overwhelming strength of their client’s case.
            Although it’s understandable for a lawyer to call a jury expert only when it’s clear the case will, indeed, go to a jury, it often proves to be a missed opportunity. As experts in the strategies of persuasion, trial consultants can use many of the same techniques they would use to prepare for trial to increase the power of an attorney’s presentation during settlement negotiations.
            Focus groups can help an attorney understand which arguments are going to resonate best with the opposing side. They can help determine which exhibits are most effective and help lawyers determine why some exhibits fail to convey the intended message.
            It is also important to enter mediation with a clear idea what your case is worth, and have research at hand to back up your assertions. Every lawyer needs to go into mediation with a strong sense of what she is willing to accept as settlement terms. Confidence in this assessment can be improved by running jury research before mediation.
            There is also the question of how much of your hand to show. Which cards do you play in trying to reach a settlement and which do you hold back as your ace-in-the-hole in case the dispute goes to trial?
            The following are some of the ways that hiring a consultant before mediation can help an attorney’s case:

• Shadow of a jury trial.
            Game theorists have long recognized that the result of bargaining depends on the “default outcome” – what happens if no agreement is reached.
            Since the failure of mediation means the matter will go to a jury, the parties spend a great deal of time during mediation arguing about what will happen at trial.  Each attorney tries to convince the other that her case will play well to a jury. This makes the default outcome look bad to the other side. The mediator also spends much of her time explaining to the parties what she thinks a jury will do with the case.
            Conducting pre-mediation jury research addresses these concerns in a few ways.  First, it improves your confidence in what the result of a jury trial is likely to be. Second, by identifying effective trial strategies in advance, you are better able to convince the other side that going to trial will be good for you and bad for them. Finally, your jury research will serve as a credible signal to the other side that you are prepared to go forward. You want the other side to conclude, “Wow, these guys already have a trial strategy laid out. They’re ready to go to trial and seem confident about how things will turn out. Maybe we should reconsider their last offer.”

• Clients are people, too.
            In a trial, you have a very limited opportunity to speak directly to the party on the other side. Cross-examination is hardly a conversational form conducive to the give-and-take of ideas. At mediation, however, you can convey information directly to that party. While opposing counsel may be largely immune to the issues that are likely to sway a jury, the same is not true of her client. Mediation is a prime opportunity to drive a wedge between a lawyer and her client.
            A client of mine was about to mediate a case that involved an elderly woman who was badly injured by a motorist. He wondered whether he should assemble his accident and medical photographs into a PowerPoint presentation. I advised him to make poster boards instead, making sure to leave the most emotionally effective image for last. I told him to place his easel just over his shoulder and make sure to leave that last image showing at the end of his presentation. While opposing counsel might have been able to block out the image, I rather doubted that the client would remain unaffected by having to stare at his victim’s picture.

• Know what your case is worth.
            It is important for a lawyer to know in advance of mediation which theories of liability are likely to resonate with a jury. The last thing you want to do is raise a legal theory that the other side anticipates will be a loser for you.
            Proper preparation can be as simple as running a small focus group to identify case themes. I sometimes run these as brainstorming sessions, where I give the panel very limited information at first and see which issues they wish to explore further.
            Jury deliberations about damages tend to be all over the map. Juries use dozens of strategies for calculating damages and there are huge variations across juries in similar cases. The better handle you have on damages for your case, the better a bargaining advantage you will enjoy.
            While actual damage awards are very hard to predict, it is possible to get a good sense of the dimensions of damages. That is, by running the proper study, you can find out the reasons why a jury will want to compensate the plaintiff. Are only the monetary losses compelling? Is loss of consortium considered a major issue? Is the jury likely to want to punish the defendant or send a message with its verdict? Will the jury likely blame the plaintiff, too, and award minimal compensation?
            The biggest mistake I see in the design of focus groups or mock trials is insufficient attention paid to damages. Typically, the mock jury is asked to deliberate about liability issues and then, as everyone is begging to go home and the janitor is shutting off the lights, the lawyers hurriedly hand out slips of paper and ask the jurors to write down damage awards. Perhaps a half-hour will be allotted for deliberations on damages, but this arrangement is doomed to failure. One cannot have much confidence in an award generated under these conditions.
            I often encourage my clients to run jury studies focused on only damages. The mock jury is given a brief description of the facts of the case and then is asked to deliberate on what would be proper compensation for the plaintiff. Exhibits and excerpts of testimony can be added to the treatment where appropriate. The key is to give the jury ample opportunity to really flesh out its deliberation of the damages issue.

• How much should you reveal during mediation?
            Not long ago, attorneys would go to great lengths to keep secret that they had even hired trial consultants. Recently, litigators have started exploiting their jury research during settlement discussions. This raises the question of what you should tell the other side about your jury research.
            This is largely a question of professional style, I think. I worked for one attorney who would not depose the other side’s expert witnesses because he didn’t want them to know what questions would be coming during cross-examination at trial. He was very experienced and figured that he was better at thinking on his feet than virtually anyone he would oppose at trial. Such a philosophy, however, is not conducive to settlement, which is presumably the whole point of going to mediation.
            I generally recommend using the results of jury research judiciously during mediation, to rebut assertions by the other side about the strength of their case. So, if opposing counsel says, “I don’t really think a jury is going to blame my client because a patient developed an allergic reaction two weeks later,” you can reply with, “Well, according to our focus group research, all seventeen mock jurors were willing to hold your client responsible, and all but two thought your client had an affirmative obligation to check up on his patient about possible allergic reactions for at least a month.”
            Such information can be equally useful when you’re representing the defendant. When opposing counsel presses for a reason why you are unwilling to offer anything higher than $50,000, you can respond that, “Our focus group research shows that people are unwilling to give any compensation for the victim’s husband, since he didn’t seem remotely interested in his wife’s welfare before this lawsuit was filed. So, without any lost consortium, $50,000 seems more than fair.”
            The idea is to take what has been a fair fight throughout the mediation and heave a giant boulder of scientific evidence on your side of the scales. Your jury research is likely to make an impression on the mediator, too.