LawyersUSA

What is a case worth?

The answer to that complex question is usually determined by three factors: the calculation of actual and economic damages, the cost of litigation and appeal and how jurors will actually value the case.

To Thomas Tune, an attorney and mediator in Phoenix who has conducted more than 1,700 mediations in the last 20 years, this third category is the linchpin in mediation strategy.

"To me, that is the paramount issue: to convince the other side that this is the amount that the jury will award," he said.

However, in mediation and settlement talks, "what the jury will award" is usually pure speculation. The parties talk about how sympathetic the plaintiff will appear, how persuasive the sparkling oration of the defense lawyer will be, how angry the jury will be about a certain memo or e-mail and how the nationality of the defendant will have a negative impact on the jurors. Most of these projections will be dismissed by the other side as partisan wishful thinking and countered with their own reasons why the jury will award the amounts they are demanding or offering.

In a growing number of cases, jury research, in the form of focus groups and mock trials, is being used in mediations and settlement discussions to show the parties how a jury will actually decide and value the case.

Using jury research in negotiations

Once the focus groups or mock trials are completed, the trial consultant will usually prepare a report, including charts detailing the juries' verdicts, the damages they awarded (both collectively and individually) and how they apportioned fault. The report may also include charts of some of the jurors' key life experiences related to the litigation and their general attitudes about the main issues in the case.

Then the consultant prepares, with counsel, selected clips of jury discussions or deliberations on the main issues in the case and the reasoning behind their verdicts and award amounts.

Although there are a variety of ways to use jury research to settle cases, I will discuss four common ways in which this research is used.

1) The least effective use of jury research is when the attorney walks into the mediation with a series of talking points, summarizing the main findings of the research as well as arguments as to why the research informs and validates his or her view of the case. Because there is nothing more concrete than the attorney's word, this can be dismissed as merely an advocate's view of the case, perhaps backed by a few people paid to give the lawyer the result he wants.

2) Another way is to present the mediator with the findings in the form of charts and DVD clips. For example, in a contract case involving the sale of a computer company, the plaintiff was offered the insurer's $100,000 policy limits. After seeing a first set of focus groups, which showed juror confusion about the contract and criticism of the plaintiff, the attorney was close to accepting the defense offer.

But a second set of focus groups allowed the plaintiff's attorney to refine his approach and focus on the misconduct of the purchasing company. This reframing of the case, along with charts and clips of the research results, allowed the plaintiff to persuade the mediator to negotiate a $2.3 million dollar settlement instead of settling for the $100,000 policy limits.

Jay Welsh, Executive Vice President and General Counsel of JAMS, a judicial arbitration and mediation companies based in Irvine, Calif., points out that it is common in mass torts for both sides to reveal to the mediator, under promise of confidentiality, that they have done mock trials or focus groups that have come back in a certain dollar range. However, when the parties do not let the mediator reveal these results to the other side, it minimizes the effectiveness of this tool.

"This research can tell you, 'This [part of the case] looks good but you may have problems in that area.' I would think this is something the general counsel of a company would want to know," said Welsh.

3) Jury research can also be used to minimize damages in a case that is clearly going to be decided in the plaintiff's favor.

In a race and gender discrimination case against a Japanese multinational corporation, the defense conducted focus groups that revealed some surprising reactions. While jurors were extremely critical of the behavior of one of the executives in the company, they were not nearly as outraged as the attorneys expected. They were also judgmental and disapproving of the conduct of the plaintiffs.

Liability and damages findings were given to opposing counsel along with a selection of clips of the focus groups discussions. While plaintiff's counsel was initially dismissive of the research, the defendant company was extremely happy about the final settlement in the case.

4) A technique that is being used more and more frequently is to have the consultant who conducted the research present the jury findings at the mediation, preferably to both the mediator and the other side.

In this process, the consultant would describe his background and credentials, how he or she designed the research and why the mock jurors were truly representative of jurors who would sit on this case. Most importantly, the consultant would describe how he or she presented the best possible opposing case to make sure that jurors received an accurate and full account of both sides. This component is critical in overcoming the natural skepticism that the other side will have about whether the research was skewed to achieve a specific result. After describing the design of the research, the consultant can review the results and show selected DVD clips.

Why bother?

Why would you go the expense and trouble of presenting your jury research at mediation or settlement discussions? There are number of reasons:

• It provides the mediator and opposing side with your strongest evidence and arguments articulated by jurors rather than by you. While they can try to dismiss you as an advocate, they cannot ignore the inherent credibility of a group of postal workers, engineers, teachers or other representative jurors discussing and deciding the case.

"The plaintiffs have their expert, the defense has its expert, the jury is going to use their common sense," said Mark Modlin, a trial consultant in Edgewood, Kentucky who has appeared at more than 2,000 mediations.

• It telegraphs to the other side that you are serious about the case and have done your research. It shows that you know your vulnerabilities and have studied how to address them.

• It shows that you know the community where your case will be tried – culturally, socially and demographically – and that you know how to speak persuasively to a jury in that venue.

• Jury research can address the concerns of multiple parties in mediation or settlement discussions. Not only can it can favorably position the case in the mediator's mind, it can also help move entrenched parties, whether it be opposing counsel, in-house counsel, an insurer or even the client. It is often gratifying to clients to hear their own feelings echoed by jurors. While this may strengthen their resolve, it also may allow them to feel heard and move off a fixed position.

• Mock jurors often come up with alternative settlement strategies. We often hear them talking about awarding $375,000 and an apology or wishing to set up a college fund for the children of parents who died in an accident, or a small settlement with the assurance that company policies will be revised. While actual jurors do not have the ability to come up with creative settlement resolutions, suggestions made during deliberations in a mock trial can be considered in a mediation or settlement discussion.

There are two key issues that need to be addressed before presenting jury research in a mediation setting. First, check the confidentiality of the disclosure. Most states have a mediation privilege that protects anything that is discussed. However, this should be researched before proceeding.

Second, it is important to make some strategic decisions about what you reveal. Hopefully, you will discover some new strategies and arguments through your research. Obviously, you would want to protect these so that you can use them at trial if the case does not settle.

Some cases should be tried and some should settle. In looking at settlement options, jury research takes 'What would a jury do?" out of the realm of speculation by using the voices, experiences, opinions, and decisions of real people to persuade the mediator and the opposing side of the value of your case.

Richard Gabriel is president and founder of Decision Analysis, a national trial consulting firm. He is a past president of the American Society of Trial Consultants and co-author of the book, Jury Selection: Strategy and Science.