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The Summary Jury Trial: An ADR Innovation

Thu, 08/24/2017 - 16:01 -- admin25

by Robert Gordon

Purpose

The Summary Jury Trial (SJT) is a creative approach designed to help clients settle their litigation in a fair and informed manner. It allows the lawyers and clients to make settlement decisions by considering information about the likely outcome of the case. This includes answers to liability and damage questions.  It can address assorted topical questions as well, such as those pertaining to family law issues.

The technique is applied to litigation which is or may be scheduled for a jury trial. It is a cost effective and time efficient procedure to provide valuable information for making pragmatic settlement decisions. It empowers clients to make prudent decisions and helps their lawyers to provide them wise choices. Usually SJT is a one-day proceeding. It includes a condensed simulated jury trial, deliberation, and a post-deliberation mediation session.

Abbreviated discovery and the rules of evidence are agreed upon in advance. The appellate process is avoided. SJT may be used in state and federal cases.

Results guide the lawyer-mediator to help resolve the client’s case amicably by considering actual risks and benefits. They pose a simple, cogent question: “Why try the time consuming, expensive case with uncertain outcome if you know how the verdict is likely to turn out?”

Legal Authority

SJT is voluntary. It is authorized by the Texas ADR Statute and by the Federal Rules of Civil Procedure. Originally, it was designed by Ohio Judge Tom Lambros, past president of the Federal Retired Judges Association. In its infancy, the procedure was recommended and directed by the court with jurisdiction over the case. Recently, SJT is simply agreed upon by the parties, their lawyers, and the mediator.

How Does It Work?

In a judge-directed SJT, a jury panel is brought to the courtroom on an agreed upon date. In a party-directed SJT, the litigants hire a project manager to recruit typical and representative jurors from the venue and arrange for the use of a conference room at one of the law firms or at an ADR facility. The mediator serves as the judge.

The essential arguments and evidence in the case are presented during attorney delivered opening statements. This can include slides, video excerpts of depositions and demonstrative evidence. With the participants’ permission, the parties, their attorneys, and the mediator observe, listen to and analyze the deliberation. The jurors are debriefed to discover the rationale for the verdict and how and why the jury questions were decided as they were.

After deliberation, the mediator guides the process and the parties to the goal of successfully resolving the case. The mediator may adopt a facilitative, evaluative, transformative, or eclectic style.

For maximum effectiveness in a private SJT, care is taken to avoid false positive or negative results. This is best accomplished by choosing a “representative” jury characteristic of the venire rather than a “random” jury based on driver’s licenses or voter registration. A project manager experienced in recruiting participants for private mock trials should be consulted.

Advantages and Disadvantages

A major advantage of SJT is parsimony. A one day trial including mediation is time and cost efficient. Best of all, the parties are empowered to resolve their case based on objective information and insight.

Another advantage of SJT is that there is no sacrifice of ethical standards. The ADR ethical and judicial rules adopted by the Supreme Court of Texas and the State Bar of Texas are followed, including those regarding privilege and confidentiality. Disadvantages: The procedure alerts the opposing side to a party’s best arguments and evidence. Therefore opportunities for trial strategy can be compromised if the procedure is not successful. Also, the protocol may afford a “foot dragging party” an opportunity for additional stalling and delay tactics.

Opportunities for Lawyers

Dallas lawyers interested in providing this service may seek additional recognition by joining the Texas Association of Credentialed Mediators (TACM) and the Association of Attorney- Mediators. Membership in the Alternative Dispute Resolution Section of the Dallas Bar is available for lawyers who wish to learn more about non-acrimonious settlements of cases, enhance their professional skills, and network with like-minded colleagues.

Robert Gordon is an attorney, psychologist, and mediator. He can be reached at drbob@drbob.com.

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