I have been a trial lawyer for more than thirty-three years. For the first twenty-seven of those years I trusted every jury I stood in front of to listen to the evidence, follow the judge’s instructions and reach results based upon what was presented at trial. Five years ago, I started to doubt that process. The doubt began when a jury was out for several hours with a simple, one question verdict. When the jury returned, in my client’s favor I was happy for my client. What I heard in the hallway I will never forget. As we walked down the hall toward the elevator the presiding juror approached me and asked to talk with me. She told me, our first vote was 9 to 3 in your favor. “I had to starve out one of the three holdouts to reach what I knew was a just result,” the presiding juror said. “The three would just not participate in deliberations, did not listen to the instructions or the evidence but rather wanted to decide the case without any rational basis.” I later told my client about that exchange. The client was shocked and said, “good thing we had that presiding juror!” That was my first experience with juror anger and discord that is prevalent today.With each trial that followed I could see more and more erosion. Unpredictable erosion. The chance of obtaining a jury that was willing to listen and decide cases based upon the law became a matter of luck. When you are unlucky you either get a jury that for a crazy reason rules entirely against your client or a jury that for an equally crazy reason awards ridiculous amounts of money to your client. Justice? Hardly. Today, twenty trials after my first concerns arouse, I am convinced that juries are dangerous dispute resolvers who reach unpredictable and inexplicably wrong decisions.My concern is not a conclusion reached from anecdote but one held by a broad cross-section of trial lawyers. See, e.g., “Jury Selection in the Shkreil Fraud Trial Follows Trend of Favoring the Uniformed,” American Bar Association Journal, July 20, 2017. In that article the author posited that “lawyers are seeking jurors who are uninformed as well as unbiased.” The basis for that theory of jury selection? In today’s polarized society, “opinions” or experience “mean inflexibility.” To put it simply, lawyers are concerned that jurors who have opinions or knowledge will not be open to hearing the evidence and deciding the case upon the evidence and instructions to reach their conclusion but rather will rely upon their bias and predetermined opinions to reach their conclusions.Our system of justice requires not only jurors that are truly unbiased but also jurors that are flexible enough to hear the actual evidence and trustworthy enough to follow instructions to reach a group decision regarding their verdict. The system was never designed to require jurors who were “uniformed.” In fact, it relied upon just the opposite. Jurors are instructed to use their common sense and life experience to resolve the issues they fact. If a juror is truly uniformed – what life experience and common sense will they have?Now imagine that you are the CEO or general counsel of a large company fighting another large company over a critical issue. Has the jury system devolved to the extent that companies cannot rely upon jurors to listen to the evidence and decide cases based upon instruction. Unfortunately, the answer is all too often “Yes.” That impacts not only large companies but small companies, families, and individuals who face the need for court intervention to resolve their disputes.Jury action in cases was always difficult to predict. Lawyers who claim to be able to give clients a percentage chance of winning a case were always fooling themselves and their clients. However, in the past, ranges of results were more predictable based upon jurisdiction and jury experience. That is not the case today.Today, whether a case is won or lost and the extent of a victory or loss is tied directly to what jury is seated – the luck of the draw.
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.