Getting the Deal Done
description
Transcript of Getting the Deal Done
Upchurch Watson White & Max
Mediation Group
and the University of Florida
Levin College of Law
Institute for Dispute Resolution
Getting the Deal Done:Using Mock Trials, Focus Groups, Private Trialsand Early Neutral Evaluation to Settle Cases
are proud to cosponsor today’s Webinar:
Our guest,Betty Dunkum
President,Victory Trial Consulting
victorytrial.com
Brandon S. PetersMediation CounselUpchurch Watson White & [email protected]
uww-adr.com2
A. Michelle JerniganShareholderUpchurch Watson White & [email protected]
uww-adr.com
Our presenters
Getting the Deal DoneUsing Mock Trials, Focus Groups, Private Trials and Early Neutral Evaluation to Settle Cases
Importance of accurate case evaluation
• BATNA – Best Alternative To a Negotiated Agreement is a
jury trial, bench trial or arbitration
• So you can make an intelligent decision about whether to
settle or try the case
Getting the Deal Done ©UWWM
4
Importance of accurate case evaluation
• Risk Analysis
▫ Likelihood of success
▫ Range of Potential Damages
• Litigation Costs
• Risk Aversion
• Consequential effects
Getting the Deal Done ©UWWM
5
Jury verdict reporter
• Pros
• Cons
Getting the Deal Done ©UWWM
6
Trial Settlement
Getting the Deal Done ©UWWM
7
Different types of jury research
Getting the Deal Done ©UWWM
8
Private mock trials• A typical day-long simulation involves opening and closing
presentations for all parties with full explanation of summary testimony, exhibits, video depositions, and rebuttal
• At least 20 jurors
▫ Provides better estimates of the size of verdict and likelihood of an outcome and a more comprehensive understanding of the themes that emerge during jury deliberations
▫ Can develop jury selection criteria
• Can incorporate witness evaluation
▫ Witness evaluated by jurors on a 20-point scale
• Usually done after substantial discovery
Getting the Deal Done ©UWWM
9
Example of jury selection criteria
• In a mock trial of a traumatic brain injury case, all of the jurors who were very familiar with traumatic brain injury (as opposed to those who were not familiar or only somewhat familiar) gave above-median verdicts.
Getting the Deal Done ©UWWM
10
Focus groups • Normally, focus groups are used as an exploratory tool
early in litigation to determine the key issues in the conflict and, thereby, inform discovery and early settlement negotiations
• The predictive value of a focus group can be skewed because of the smaller sample size (usually 8-10 jurors) and the fact that one dominant personality can sometimes overtake jury deliberations
• Too small for jury selection criteria
• Presentation by a neutral
Getting the Deal Done ©UWWM
11
Court-sponsored summary jury trials
• Typically, a one-day presentation done at the courthouse before a judge and 1-2 panels of jurors.
• One side may hide key evidence/exhibits they don’t want to disclose before trial.
Getting the Deal Done ©UWWM
12
Joint mock trials
• Similar to private mock trial, except all sides present their case.
• Privately recruited jury.
Getting the Deal Done ©UWWM
13
Private trials
• Often done as part of a settlement agreement.▫ Settlement agreement may contain a high-low
with amount to be determined by the private trial.
• Use a retired judge and a jury recruited from the community.
• Summary presentation of testimony and evidence over 1-2 weeks.▫ Helpful if one side does not want the evidence
publicized.
Getting the Deal Done ©UWWM
14
Early neutral evaluation
• Outside Florida
• Florida
• Judicial Immunity
Getting the Deal Done ©UWWM
15
• To predict the outcome for trial purposes
• To establish a negotiation range for mediation purposes
• To test case themes• Legal arguments versus compelling story
• Jurors often latch on to seemingly insignificant issues
• Help jurors understand complex issues
• To evaluate witnesses and exhibits
Getting the Deal Done ©UWWM
16
How can I trust jury research?• Jury panel mimics population in terms of age, race,
gender and political orientation.• Extensive screening excludes people who are ineligible
jurors or who have familiarity with the case, parties or witnesses.
• Recruiting is done via two methods (depending on client’s budget): ▫ Random-digit dialing (outbound recruiting; more
expensive)▫ Responses to ads placed in the community (inbound
recruiting; less expensive)
Getting the Deal Done ©UWWM
17
Using jury research to …
• Help mediate multi-defendant cases
▫ Who is liable?
▫ Share of proportionate fault
▫ Amount of damages
• Persuade a “difficult” client, adjuster or attorney▫ Define "difficult
people"
▫ Hostage Takers
▫ FBI's Behavioral Change Stairway Model
Getting the Deal Done ©UWWM
18
Behavioral Change Stairway
Active Listening
Empathy
Rapport
Influence
Behavioral Change
Getting the Deal Done ©UWWM
19
Time
Source: FBI Crisis Negotiation Unit
• Prior to filing the case
• Early in discovery
• Before/after mediation
Getting the Deal Done ©UWWM
20
Options:
• Say nothing
• Disclose overall results
• Video presentation of jurors discussing verdict and rationale
Getting the Deal Done ©UWWM
21
Getting the Deal Done ©UWWM
22
• Number of jurors
• Method of jury recruiting
• Location of research
• Length of case presentations
can each be adjusted to fit budgets.
Getting the Deal Done ©UWWM
23
• Factual issues
• Legal issues
• Big dollars
• Difficult personalities
Getting the Deal Done ©UWWM
24
Two ways to follow up• Working with a mediator after
mediation
▫ By phone, attorneys only or with parties
▫ In person
▫ When
Discovery closed
Before summary judgment motions
After summary judgment motions
• Conducting jury research after mediation – retesting case
▫ Use what you learn about your case
▫ See how case changes if you settle with one or more of the defendants/plaintiffs
Getting the Deal Done ©UWWM
25
O.O.D.ALoop
Getting the Deal Done ©UWWM
26
Observe. Orient. Decide. Act.
Observations
CulturalTraditions
Analyses &Synthesis
PreviousExperience
NewInformation
GeneticHeritage
Feedforward
Feedforward
Decision ActionFeedforward
Unfolding circumstances
Implicit Guidance & Control
OutsideInformation
Implicit Guidance & Control
Feedback
Feedback
Unfolding Interaction with Environment
Getting the Deal Done ©UWWM
27
Thanks to our guest contributorBetty L. Dunkum, Esq.PresidentPhone: (561) 793-3703E-mail: [email protected]
28
“Getting the Deal Done”
Florida Bar Course #
1406735N
CLE CreditsGeneral: 1.5
Upchurch Watson White & Max Mediation Group
Daytona Beach Maitland/Orlando Jacksonville Miami Fort Lauderdale/Plantation West Palm Beach
Please email [email protected] with questions about course number, Webinar recording, etc.
Please contact Brandon or Michelle at [email protected] or [email protected] with questions or comments regarding content.
29