Voir dire, which was a way to control against the pure luck of the draw in the past, is an impotent tool in most cases today. In many federal courts, lawyers are not even allowed to ask jurors voir dire questions. Judge’s conduct the entire voir dire. If you are in that situation voir dire is practically worthless.
When lawyers are allowed to participate in voir dire, the questions asked are a really tricky subject, It is nearly impossible to know in advance, or maybe to know at all, what questions asked will alienate jurors who will ultimately be seated. It is also nearly impossible to tell when jurors are actually honestly answering questions. Simply swearing in a jury in voir dire is not adequate to assure honest and complete answers. Jurors with any level of savvy know what to say to be struck for cause; they also know what to say to get on a jury. Even if either desire requires some bending of the truth – for what is the truth anyway, right?
What’s the solution?
I believe there are three potential solutions. Only one of which is truly usable and effective in nearly any case. They are:
(1) In cases that justify the expense and where the expense can be afforded by the client jury consultants have become absolutely critical. Both in the process of mock trials or mock jury selections and in the process of jury selection itself. The cost consultants and mock trials are extraordinarily high and while indicative of results, or illustrative of approaches, do not reliably predict results. A potential solution but of limited application.
(2) Trial to the court instead of trial to a jury. That is not always a good option given the judge who is assigned to a case. It is also not always an option as all parties are entitled to make a jury demand. For example, it is common practice in certain jurisdictions for plaintiff’s personal injury lawyer to never ask for a jury, in those same jurisdictions, the defendants always ask for juries. Another potential solution again with limited application.
(3) Effective mediation. That is the only solution that can be used and effective in any case. A solution where clients control results and avoid altogether the risk of jury unpredictability.
Effective mediation requires effective mediators. But how do lawyers and clients choose effective mediators? That is a difficult question to answer. Sometimes mediators are chosen by the judge – sometimes the lawyers make the choice. The choice of a mediator is hard. A mediator that is effective in personal injury cases may not be the mediator that will be effective in a family law or business litigation setting.
My formula successful mediator selection and effective mediation is simple. Choose someone who has received extensive training in mediation skills. In most circumstances, choose a mediator that is an experienced lawyer rather than a retired judge. Choose a mediator who has the skill and qualities to keep people talking and the creativity to find potential solutions that the parties and their lawyers had not considered.
Why is that my formula? Extensive and specific mediation training is very important. That is why before I ever offered services as a mediator I took intensive mediation training at Northwestern University. Simply stated, mediators need specific training. Just because someone has practiced law for a long period of time or has served as a judge is not enough. The skills employed by a mediator are learned tools that are enhanced by an individual mediator’s style. Not the other way around.
Why use lawyers instead of retired judges? Judges have extensive experience in deciding cases. A mediator does not decide issues. A mediator can evaluate the matter before them if that is something the parties seek but for the most part a mediator is a facilitator and the consummate devil’s advocate. Evaluation that comes too early will result in mediation failure. Inability to facilitate or be the devil’s advocate cuts off potential avenues for settlement too early in the mediation process. Lawyers who have tried many cases and argued many appeals are in the position to evaluate when that is necessary but they are – because they have to be to be successful – skilled at facilitation, playing the role of the devil’s advocate, and serving as a persuader rather than a decider.
Why choose someone who keeps that parties talking? There is often a substantial need for parties in the mediation to express their feelings and to air their grievances. Not through a lawyer necessarily but preferably directly. Once those feelings and grievances are heard and understood, it is fair more likely that the mediator can drive the parties through a combination of facilitation and evaluation toward a settlement that neither party will be likely to be happy with but one that both parties choose rather than continuing down the path toward the uncertain and unpredictable results at trial.
Today more than ever, it is critically important for lawyers and clients to engage in mediation, using effective mediators, to control risk. The alternative of trial, especially jury trials, lie in the realm of unacceptable unpredictability.