Jury Prognostication

Experienced trial attorneys, in advancing their clients’ interests during mediation of tort cases, usually profess to having some ability to estimate what their cases are worth; i.e., figuring what a jury is likely to award and factoring in the cost of trying the case. Unfortunately, making such estimates usually involves trying to predict what twelve strangers — whose identities are not yet known, and whose innermost thoughts, attitudes and life experiences will never be fully known — will react as a group to the evidence that is likely to be presented at trial. In my state, all we know for sure at the time of mediation about the future members of the jury is that they will be at least 18 years old and will either have a driver’s license or be registered to vote.*

When I act as a mediator, I always remind the participants that there is no such thing as an "average jury." Even when a jury is made up of average citizens (whatever those might be), I maintain that it is impossible to accurately predict the group dynamics that will result from the mix of different personalities when they start their deliberations. Even on the eve of trial, when you know who is going to be on the jury, determining in advance who will be the leaders in the jury room, for example, is a pretty imprecise exercise.

The science of statistics, its practitioners will argue, does help to give some predictability to the art of jury divination. But statistics, as I have said before, favors litigants who have lots of cases — insurance companies, e.g. The science has little to offer someone who has only one bite at the apple — the plaintiff, i.e. Every poker player knows that someone who can go all night has the edge over the gambler who has only enough money to sit in for one hand!

The situation faced by litigants is complicated further by the advance of technology. I believe that in the Internet age — Google, Twitter, Facebook, etc. — the unpredictability of juries has increased significantly. Are jurors going to be persuaded by the evidence and arguments they hear in court, or by something one of them read on a blog that morning? Most jurors with whom I have had experience take their role seriously and try to do the right thing. Unfortunately, however, what a lay person may think is the right thing to do can differ significantly from what the judge and the lawyers think is the right thing to do.

The problem arises, in my view, not only from the vast increase in the availability and accessibility of information online, but from the empowering effect all of it has had on the general population. Take a recent example from a criminal trial in my state. One juror did an Internet search of the defendant’s name and learned of a past criminal record. He then shared the information with the rest of the jury "because he thought jurors deserved to know."† His foray into hyperspace was discovered, and he was found in contempt and punished. His attitude of "empowerment" is, I’m afraid, more prevalent than many might suppose, and his example, rather than discouraging such vigilante justice, may instead simply cause others to be more careful about discussing it afterward.

So, getting back to the original point, how are we to assess the probabilities of a favorable jury verdict? Maybe, when all is said and done, we can’t. But I think we can do pretty well in assessing how the other side is likely to approach the risks involved with such unpredictability. People settle cases, after all, to avoid risk. I suspect that, more often than not, a case’s "value" to either litigant depends less on what the parties guess a jury is likely to do, and more on how far each believes it can push the other because of what the jury might do.


* RSA 500-A:1, IV; RSA 500-A:7-a, I.

† Annmarie Timmons, "Juror Becomes a Defendant," Concord Monitor, March 26, 2009. For an analysis of the dangers we face from a newly empowered citizenry, but one which is becoming more and more ignorant of the structure of our legal system, see Retired Justice Souter’s remarks to the ABA on August 1, 2009. The video is worth watching.

The Heart is a Piece of Plumbing

Grant you, it’s a very sophisticated and marvelous piece of plumbing, but, at bottom, its function is to pump liquid, not to serve as a substitute for the brain or for due diligence! Making decisions on important issues "because my heart tells me to" — i.e., based on the emotion of the moment instead of on thoughtful analysis — is a recipe for disappointment at best, and disaster at worst.

Most attorneys and mediators involved in personal injury work recognize that emotion is a fact of life. It is something we’ll have to deal with as long as our business involves helping to pick up the pieces littering peoples’ lives after serious accidents or other traumatic events.

Conventional wisdom has it that venting can help to dispel emotion that may cloud an injured plaintiff’s judgment concerning settlement. There is a lot of truth in this. However, there is a danger that venting may be too cathartic, and cause the parties to relax too much, after having gotten it all off of their chests. Unvented anger may cause people to over value a case, thereby lessening the chances for a fair settlement. But too much relief at having vented may also have the opposite effect. Just because the parties may have started to feel warm and fuzzy doesn’t mean that the case ought to be settled for more or less than it is worth.

It is the lawyer’s job to see that the client gets a fair deal. As I said in an article I wrote a couple of years ago:

In the midst of all the emotion and feeling good about oneself promoted by much of the mediation literature, lawyers must protect their clients. A lawyer cannot allow the client’s emotions of the moment to override his or her good sense. The lawyer absolutely cannot recommend an unfair settlement just because the client is temporarily relieved by venting, or induced into a feeling of euphoria by having had a good cry with the other side. The lawyer must protect the client from the perception of value, if reality lies elsewhere.*

The job of the lawyer is not to accommodate the client’s emotion and use it as an excuse to recommend a settlement that the client may temporarily go along with at the mediation, but regret later on. Instead, the lawyer’s job is to objectively advise the client based on the latter’s long-term interests. A lawyer who believes that the client is being overly influenced by his or her "heart," should try to talk the client out of moving too precipitously and, if that approach fails, should suggest strongly that negotiations be suspended and resumed at a later time after some further reflection and analysis.

The object of mediation is not settlement at all cost, but settlement that fairly addresses the long range interests of the parties.

* See "Of Potted Plants and Personal Injury: a Contrarian View of Mediation," published in the Fall 2007 issue of New Hampshire Trial Bar News (Vol. 29, p. 169), published by the New Hampshire Trial Lawyers Association (now The New Hampshire Association for Justice).

Uncomfortable Truths

Applied to the right cases, there is no doubt that the mediation process can do a lot at a relatively early stage to resolve what would otherwise be protracted and expensive litigation. Having said that, I also believe that there are many cases where a mediator would be superfluous. This proposition may sound like heresy, coming as it does from someone who makes a good part of his living mediating cases, but I think it is borne out by my experience since 1992 as a volunteer neutral for the New Hampshire Court system’s mandatory ADR program.

In my state, civil cases that used to settle "on the court house steps" are now scheduled for mediation or other ADR at a point in the discovery process when the parties expect to have a reasonably good handle on the facts, but have not yet spent the time and money necessary to get their cases completely ready for trial. The program’s statistics show that cases are settling earlier than they used to, but do not appear to indicate a substantial increase in the settlement rate overall.

I have long had a sneaking suspicion that the pre-1992 delays in settlement — at least for the mostly-about-money cases — were primarily due to inertia, rather than to the lack of intervention by mediators, and that improvements since have had more to do with timing and party readiness than with the process of mediation itself. My experience with mediating fairly routine soft-tissue injury cases, for example, suggests that when parties are ready to settle, and come into mediation with a fairly good idea of the reasonable range of values, their cases usually settle. But they settle because the parties and their attorneys are ready and on roughly the same page, rather than because they got a lot of help from the mediator. In many other cases I have mediated, the parties were not ready and needed further discovery before they could begin serious negotiations. Most of those cases went on to settle without outside assistance after further information was obtained and exchanged.

When ADR is scheduled by the courts, lawyers, parties and insurers are (a) required to look at their files at the same time, (b) get together at the same time, and (c) work on resolving their case at the same time. Guess what, folks; with a little extra effort and planning, you don’t always need a mediator when you have that going for you.

In fairly routine cases, instead of reflexively scheduling a mediation, if you have a reasonable level of comfort with your opposing lawyer, sit down for lunch with him or her and see whether direct negotiations might be a better way to go. Kick the case around frankly "off the record," discussing in general terms how you will play your strengths and how you will deal with your weaknesses. Forget all that stuff you may have read about appearing to be weak when you talk about settlement. Hardly anybody thinks like that anymore.

You don’t have to start talking about a specific range of values at this juncture.* There are other ways to get a feel for how your opposite number sees the ballpark. Statements like, "My client isn’t looking to retire on this," or, "my company knows it’s going to be on the hook for something," for example, may be enough. If you think that further negotiations are likely to be fruitful, schedule a face to face settlement conference attended by everybody who would normally attend a mediation — except the mediator. Have separate rooms for private attorney-client discussions, and then just negotiate as you probably would with a mediator — the plaintiff starting high; the defendant starting low; and both meeting somewhere in between.

If this approach doesn’t work, at least you have a pretty good idea what the problem is, and can then hire a mediator — or not.


* In fact, that would probably be a bad idea. If you come right out and suggest a range of values, say, between $25,000 and $40,000, your opponent will regard that as a $25,000 demand if you represent the plaintiff, or a $40,000 offer if you represent the defendant!

The Great Compromise*

What is it about the word "compromise" that tends to raise the hackles of those who hear or read it? To many, any compromise is regarded as the shameful abandonment of principle. Perhaps the best example of the negative visions that the word conjures is the Munich debacle in the fall of 1938. Neville Chamberlain, trying desperately to avoid another catastrophic war with Germany, sold the fledgling Republic of Czechoslovakia down the river, thus, making another catastrophic war with Germany inevitable.

Against such a backdrop, it is well to remember that the word "compromise" was not always considered epithetical. In any society, interests — even principled interests — will inevitably clash. For a society to survive, means must be found to resolve those differences peacefully. And not all conflicts are susceptible to win-win resolutions. The great British statesman, Edmund Burke, for one, regarded compromise as an essential and beneficial part of the human condition. See my post of May 26, 2008, "The Best Compromise That Never Was?."

In order to counter the prejudice against all compromise, it is useful from time to time to discuss historical examples of some that proved to be fortunate. The first that springs to my mind was reached in July of 1787 at Independence Hall in Philadelphia (pictured above). As I have stated before, the drafting of the United States Constitution involved "a high-stakes negotiation among many distinct interest groups." See "Yes, Virginia, There Is a Plan," May 25, 2008. Potentially the most crippling dispute facing the delegates dealt with the question of how the national legislature would be constituted. Delegates from larger states like Virginia favored election of representatives based on population. This, its adherents believed, would assure a legislative body truly national in character. Opponents of this concept, chiefly from the less populous states, believed that each state should have equal representation, else the smaller states would lose all power in the national government.

More than mere self-interest was involved in the debate; both sides supported their positions with principled arguments. The question occupied the delegates for a month, with almost no progress toward resolution being made. The issue was so divisive that many despaired of overcoming it and feared that the Convention would dissolve in failure as a result. Fortunately, most delegates were committed to the success of the endeavor, and ultimately took the larger view that without some compromise of principle, the entire American experiment would miscarry. Thus, they recognized that the larger principle of national unity was on the line, without which all other principles would be irrelevant. A so-called "Grand Committee," with members from each state, was formed to study the issue over the Fourth of July recess. One of its members was Benjamin Franklin, who proposed the concept of proportional representation in the lower house (House of Representatives) — which was to be given the exclusive power to generate revenue bills — but equal representation for each state in the upper house (Senate).†

It took almost two more weeks, but ultimately the delegates approved the compromise by a narrow margin. Eventually even James Madison, one of the most strident of those opposed to anything but 100% proportional representation, put the issue behind him.

And the rest, as they say, is history.


* For background on this post, I am indebted to William L. Shirer’s classic The Rise and Fall of the Third Reich (New York: Simon and Schuster, 1960), Catherine Drinker Bowen’s Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston: Little Brown and Co., 1966), and Richard Beeman’s more recent Plain, Honest Men: The Making of the American Constitution (New York: Random House, 2009).

† The concept of mixed representation — the people represented in the lower house and the states represented in the upper house — was based on a proposal floated the previous month by Roger Sherman of Connecticut, which is why the result is sometimes called the "Connecticut Compromise." But the idea didn’t get a lot of traction until Franklin wined and dined the members of the Grand Committee, tweaked it a bit, and lent it his support.

The Dick Francis Solution

Long before I ever heard about Fisher and Ury’s Getting to Yes, I started reading Dick Francis’ mysteries. For those not familiar with his books, Francis, formerly a steeplechase jockey, develops his novels around British horse racing. His protagonists, rather than being super sleuths, are usually fairly normal, civilized people who are forced to deal with extraordinarily uncivilized situations; his villains are some of the most evil and malevolent specimens in literature. What struck me when I first started reading his books, was that their focus was primarily on how situations could be resolved to best serve the interests of the protagonists — even if the solutions did not always result in all the villains getting satisfactorily crunched.*

With this background, when I was first exposed to Getting to Yes, it was relatively easy for me to understand what the authors were getting at when they discussed the superiority of focusing on interests rather than positions.

When a person is injured due to another’s fault, often the first reaction is a desire to punish the offender. If I have been hurt because someone else was careless, I want the other guy to suffer as much as, or more than, I have. It is difficult for the lizard part of my brain to accept that the aim of the civil justice system is not punishment. Sometimes this initial reaction will fade with the passage of time, but not always and usually not completely. A plaintiff’s lawyer who expects a case to settle must work with his or her client to overcome this natural reaction.

"Revenge," the proverb says, "is a dish best served cold." But, in truth, it isn’t a dish at all. Revenge doesn’t put food on the table, replace lost income, or pay medical bills. Revenge doesn’t put your kids through college or provide for your retirement. And, largely because of liability insurance, the defendant will never feel the financial pain he or she has inflicted on you.

The sooner a plaintiff accepts the reality of the situation and is ready to make decisions based on what is best for him or her, as opposed to what is bad for the other guy — to accept the Dick Francis solution, in other words — the sooner a case is likely to settle and the plaintiff can move on with his or her life.


* Some examples are Risk (1978), Reflex (1981), Straight (1989) and To the Hilt (1996).

Deus ex Machina Mediation

Deus ex machina literally means "God from a machine," and refers to the practice in ancient Greek drama* of bringing in a god (lowered to the stage toward the end of the last act by a crane or on a piece of scaffolding) to magically solve all the problems created during the course of the play. Merriam-Webster Online defines the term in context as "a person or thing (as in fiction or drama) that appears or is introduced suddenly and unexpectedly and provides a contrived solution to an apparently insoluble difficulty."†

Some litigants approach mediation with little or no preparation, no clear vision of the result they want to achieve, and no plan as to how to proceed. The idea on each side seems to be that it is the mediator’s job to somehow convince the others to accept their position, without having to present a clear reason for them to do so beyond saying something like: "We are confident that a jury in this county will go along with us." The mediator is then expected, by means indiscernible to mere mortals, to get everyone to agree to a solution somewhere in between the parties’ positions. In reality, the mediator is reduced to shuttling back and forth like Henry Kissinger, unable to say anything more illuminating than "[d]o you realize you might lose this case?" Although such mediations do sometimes lead to settlement, I suspect that the same results could have been achieved by exchanging a series of e-mails, without the need for a mediator.

For a mediator to help parties settle a case, the parties and their lawyers normally have to work as hard as, or harder than, the mediator. They must: (a) know their cases thoroughly; (b) be imaginative and flexible; (c) know roughly where they want to go; (d) have a plan as to how to get there; and (e) be prepared to give plausible reasons for each step taken. If the participants have done their homework, then mediators have many tools to smooth the process and help the parties arrive at a mutually satisfying solution.

As is the case with most human endeavors, hard work, sweat and preparation are necessary to get the job done. Sorry, but as Vernon Dursley put it: "There’s no such thing as magic!"‡


* I have no idea why it’s a Latin phrase, rather than Greek.

† Merriam Webster’s Online Dictionary (10th ed).

‡ Harry Potter and the Sorcerer’s Stone, Chris Columbus, Director (Warner Bros. 2001).

Little Blank Spaces

When a liability insurance claims office gets a report that one of its insureds has been in an accident, it immediately sets up a file, gives it a claim number, and assigns it to a claims representative. Typically, the company’s guidelines require that certain information about the claim be obtained before it will consider making a substantial offer. The required information includes basic documents about the accident (police report, witness statements, e.g.), plaintiff’s lost time and earnings from work, medical bills, medical records, whether the plaintiff has reached a medical end point, etc. I tell plaintiffs that the claims rep has lots of little blank spaces on his or her computer screen and, until those spaces are filled in, the money faucet will remain closed.

It follows that if you represent an injured plaintiff, you will want to find out what those blank spaces are and help the claims rep fill them in as soon as possible. If you don’t know what they are, ask. By thus accommodating the company’s protocol, you won’t turn a doggy case into a winner, but you should enhance your credibility with the insurance company in meritorious cases and help set the stage for a successful mediation.

For more on the same subject, see my article entitled, "Dealing with Insurance Company Claims Representatives," written in 2006.