By Don Keenan
We recently unveiled the new mediation course at the Keenan Ball College (www.keenanballcollege.com) and the faculty was truly outstanding. The students were over the top with praise for the new template and tools offered during the course.
I was surprised to learn that none of the students were familiar with the summary jury trial, which I have used for the past 15 or 20 years with great success. So I wanted to take that thought down the road for a minute and ask how many of y’all have been at mediation where it breaks down into the Black Hat contending that the jury would do such and such, and you contend the exact opposite. This is an absolute deadlock stalemate; nothing can move through that impasse.
My first encounter with the summary jury trial came during a mediation monitored by a federal judge in Tennessee, where he properly observed the factual impasse and directed us to appear the following morning to do a non-binding summary jury trial. He advised that we may have 15, we may have 12, we may have eight – but regardless, we will sure have a jury. We proceeded with the mini-trial and I was thankful to be on the winning side, from which we returned to the mediation table and things moved rather quickly to a conclusion.
Simply stated, the summary jury trial takes the leverage away from the Black Hats.
Through the years, every time I have encountered a similar factual obstacle I have recommended to the mediator that we do the summary jury trial and do it quickly—within the next day or two. What I found, however, is that it’s often different than the time in Tennessee. The Black Hats balk. They run from a summary judgment trial like the Wicked Witch of the West runs from a bucket of water. Why? They know they can’t win the summary judgment trial and that you have just exposed their puffery.
So the second reason to propose having the summary judgment trial is simply to smoke them out and get them to stop using whatever they’re using as leverage, which they know not to be true. In my experience, maybe 20 percent of the time when I propose it we actually go to a summary judgment trial. I am thankful not to have lost a single one of them. Obviously the other 80 percent of proposals were just to call their bluff. The good news is, after the bluff is exposed we then have a breakthrough in negotiations that will sooner or later conclude the case on my terms.
The first summary judgment trial I mentioned in Tennessee was conducted in front of actual jurors summoned to the courthouse for regular jury duty. The judge had 10 of them come to his courtroom and explained to them what the procedure would be: He would give an overview of the case, I would get to do a 20-minute opening statement followed by a 20-minute opening from the Black Hats, and then I would get a three-minute rebuttal. Even though it was the first time I’d done this, it felt natural, particularly after the jurors deliberated for a short period of time and brought back a liability verdict. Subsequent summary judgment trials have been a hodgepodge of different procedures worked out by the lawyers. Sometimes they cover opening statement, a couple witnesses, and then the closing. Some will have some videotaped testimony.
Of course, when two opposing lawyers get together there’s likely to be disagreements, and that’s what can occur at any turn. The judge in that first case in Tennessee didn’t give us any choice in the jurors. Thereafter, the actual makeup of the jury was subject to some degree of disagreement, compromise, etc.
There really isn’t any set procedure for the summary judgment trial; it’s simply whatever works for that particular case.
Bottom line: When you do a summary judgment trial, it busts the logjam and gets you back to the mediation table with a lot of leverage. Use this new tool of the summary judgment trial to bust through any logjams at mediation concerning over what a jury will do with a particular issue. Furthermore, in a high percentage of cases, you’ll find the conflict over the liability is nothing more than a bluff, which you can call out by challenging them to a summary judgment trial. If they chicken out then you know it was a bluff – but, regardless, they’re stripped of any leverage.