November 2017

 

What if I told you that it was possible to get a general feeling as to what a jury would do with your case in the space of a day or two prior to dedicating several weeks and lots of money to a trial?  You’d probably want to know more.  Lawyers use mock trials or focus groups to consider what a jury would do, but I’ve never had a judge make a summary jury trial a prerequisite to a trial – kind of like mediation in most cases here in Texas.

How’d it work?  This particular court requires that any case with a prospective trial that will take over 5 days submit to a summary trial.  Each side was given two hours each and we were able to work out the parameters of the presentation.  In our case we summarized the evidence, presented key exhibits, expert reports, and some testimony.  The plaintiff opened followed by the defendant and there was a brief rebuttal by the plaintiff.  No evidence went back with the jury members.  The parties paid a former judge to preside over the trial – that judge then mediated the case the next day.

This all took place at the courthouse and the judge brought in about 2o jurors.  We didn’t have to pay the jurors – this was their jury duty.  We struck two of them by agreement.  The judge then informed them they would participate in a shortened trial and they would be finished by the end of the day.  The lawyers proceeded with summations.  Then we broke up the jury into two panels of 9 that deliberated separately.  The panels were presented with a straightforward jury charge and went to work.  The juries deliberated for about an hour or so each and even had some questions.  They eventually concluded their deliberations and we were able to talk with them about their findings.  They were pretty consistent with one another and generally had the same rationale in their decision making process.   Both panels were candid with their evaluations of the case.

The following day we mediated with the judge that presided and we eventually reached a resolution.

Was it perfect? No.  It is very difficult to present a case in that amount of time but both parties face the same time constraints.  That said an hour is a pretty good amount of time to get through a lot of information.

Using two panels is key.  That way you avoid the argument of a runaway jury – especially if their findings are consistent.

The other key is having a lawyer on the other side that you can work with.  If you’re playing games over evidence or using evidence that won’t come in at trial it won’t work.  The objective has to be to get a sense from the jury on how they would rule.  Luckily I had a lawyer on the other side I could work with.

From an outcome perspective the summary jury trial worked.  We resolved the case.  The judge was able to avoid giving up a week of court time for a trial and the parties were able to talk to a jury for a fraction of the cost.