The following is a summary of a discussion that occurred on December 20, 2005.  The lawyers involved were Chuck Wasilefski, Ed Zych, and Paul Dellasega.  The lawyers reflected on their experiences with mediation.  

Summary Jury Trials

Alternative Dispute Resolution

Summary jury trials get people used to the idea of alternative ways to resolve a dispute and can often lead to mediation.  Once the parties have experienced a summary jury trial, the main issues of the case are often illuminated and the parties can identify where discussion needs to occur in the case.   

Impact on Clients

Summary jury trials can have a significant impact on the clients in the case.  “Summary jury trials are a very useful tool to get clients to recognize risk.” (Paul Dellasega)  The trial may provide a realistic perspective on the likelihood of success in the case.  It is an education tool.  Feeling a loss, even a nonbonding one, may give a party, especially in an emotional case, the idea of what one would feel like at the trial.  The possibility of losing becomes real and can encourage settlement of the case.  “A client’s perceived invincibility may be rapidly replaced with the reality of trial.” (Ed Zych)  “One drawback to a summary jury trial is that it may have a polarizing effect, entrenching a party further in his or her position.” (Chuck Wasilefski) 

Timing

A major problem occurs when summary jury trials take place on the eve of trial and trial is set to resume almost immediately after the summary jury trial.  People not at the table need time to reflect on the finding and reassess their positions.  Thirty days is an ideal time for most cases.  “Thirty days is a short enough time to provide the pressure necessary to keep the discussions moving, but long enough to allow sufficient reaction time for the parties involved.” (Chuck Wasilefski)

Trial Preparation 

The summary jury trial can be very helpful to counsel.  “It makes you more comfortable with the main legal and factual issues in the case.” (Ed Zych)  It provides the opportunity to put your witnesses on the stand and test their sincerity.  The summary jury trial illuminates intangible aspects of a case that cannot be discerned from the documents traded between the parties.  Small points in a case may become extremely significant after they are tested in a summary jury trial.

Jury

“The summary jury trial process makes it easier to pick juries for trial.” (Paul Dellasega)  However, the process would be more valuable if counsel were able to ask specific questions of specific jurors to further probe their reactions to the case presented.  “The ability to speak with individual jurors would have made the process extremely valuable.” (Chuck Wasilefski)  When counsel is limited to asking yes and no questions to the jurors, the summary jury trial provides less insight into jury reaction to the case.  It is also frustrated if communication occurs through the foreman, and the insights of individual jurors cannot be distinguished.    

Risk

A concern with summary jury trials is that it exposes the major arguments of the case to the other parties involved.  One party may be hesitant to put their full case before the summary jury for fear of exposing certain elements of the case.  Similarly, if the summary jury trial testimony is recorded, counsel may choose to keep certain witnesses from testifying.