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

bld@victorytrial.com

victorytrial.com

Brandon S. PetersMediation CounselUpchurch Watson White & Maxbpeters@uww-adr.com

uww-adr.com2

A. Michelle JerniganShareholderUpchurch Watson White & Maxmjernigan@uww-adr.com

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: bld@victorytrial.comwww.victorytrial.com

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 cklasne@uww-adr.com with questions about course number, Webinar recording, etc.

Please contact Brandon or Michelle at bpeters@uww-adr.com or mjernigan@uww-adr.com with questions or comments regarding content.

29