Summary Jury Trial and Accompanying Expenditure.

Question

Description

Are resources such as those expended on a Summary Jury Trial worth the expenditure? Does a monied party such as an insurance carrier have an unfair advantage in this area?

In our last lecture we examined the use of Early Neutral Evaluation as an ADR method. We viewed the usefulness of having a Neutral Evaluator who can intervene at an early stage of litigation and bring about a resolution many aspects of pending litigation and sometimes a full resolution of the litigation and dispute which may be pending between adversarial parties.

We will now examine another methodology where a third party may come in to evaluate a dispute and assist in the resolution of a pending dispute. This methodology is known as the Summary Jury Trial. The Summary Jury Trial is method where there is an existing dispute between two or more parties. There generally has been ongoing litigation between the parties. As we have have previously discussed before a civil action such as a commercial dispute comes to trial there is a significant amount of pre-trial discovery which takes place. Some of the pre-trial discovery involves the production of documents related to the dispute. Another major aspect of pre-trial discovery involves what are known as oral examinations before trial sometimes referred to as depositions. Where there is significant litigation which may involve large sums of money and significant damages the attorneys who represent one of the parties whether the attorneys represent the plaintiff, the party seeking to recover damages or the defendant, the party seeking to defend the lawsuit may decide to create a mock trial and present the respective cases to a test jury to determine where the respective parties strengths and weaknesses may lie. This is somewhat analogous to focus groups which are used in the public relations and advertising industry to determnehow public opinions might exist or be swayed with regard to promoting certain products or presenting certain matters to the public.

In a Summary Jury Trial the attorneys for one of the parties will create a mock trial of the pending litigation. A retired judge or magistrate will preside of the trial. Mock jurors will be chosen. Thereafter there will be a presentation to mock jury by attorneys who will present the plaintiff's case. This will be followed by a presentation made by the defendant of the defense to the plaintiff's case. The major differences between this format and an actual trial is that there are mock witnesses who read from the deposition testimony given by the the actual witness. The mock jury will after hearing all of the evidence will render their verdict. Bear in mind that the Summary Jury Trial will take place after virtually all pre-trial discovery has been completed. As such all of the evidence is now known to both parties, thus a presentation much as that which would be made at trial will take place in a Summary Jury Trial. After the Summary Jury Trial has been completed the mock jury will render its verdict. This type of third party evaluation can be very useful to a litigating party on a number of levels. Firstly it provides a dress rehearsal to any actual jury trial which may ultimately take place. Trial strategy can be tweaked and perfected. In terms of any ADR which may take place the use of the Summary Jury Trial can be applied to perfect a negotiating position for the use in settlement negotiations. The plaintiff will be  better able to understand the strengths of it case in terms of any recovery that may be had from the defendant. The defendant in turn can use the Summary Jury Trial to determine the strengths and weaknesses of any defenses it wishes to present to the plaintiff's case. When a party has a good understanding of the strengths and weaknesses of their particular case this can set the stage for a final resolution of pending litigation.

There is a variation of the foregoing that may be employed. In cases where the parties have already agreed to a judge only, non jury trial, a mock trial observed by a retired judge or other respected attorney may be equally valuable for insight and trial preparation.

An additional possibility that may be employed by both parties is a private Summary Jury Trial. In this situation the parties may agree to work extra judicially and present their cases to a private jury and agree to having neutral individual preside over the trial. The parties will agree in advance to be bound by the verdict that is achieved by the private jury. The parties will also agree as to the extent that the rules of evidence will apply at the private trial.This type of private trial is very much like arbitration, an ADR methodology which we will discuss in a future lecture. The concept in this situation is that the verdict of the private jury will be final. There is no appeal from this verdict or any other aspect of a private trial. In an arbitration as we shall ultimately see there is also no appeal from the determination of the arbitrator whose determination is considered final.

The advantage of the Summary Jury Trial in terms of being an ADR methodology is that it can be very helpful in creating an atmosphere for settlement negotiations. The ultimate benefit is removal of complex litigated case from a crowded court calendar of litigation which might occupy a judges time for many months. This in turn will permit the judge to preside and resolve many other matters. The use of a private Summary Jury Trial is equally advantageous in removing a complex highly litigated matter from the court calendars and resolving this type of case extra judicially in and ADR setting.

The major disadvantage of the Summary Jury Trialmethodology of ADR is the extreme expense involved in the implementation of the Summary Jury Trial. The party or parties involved in this form of ADR will have to bear the expense of compensating all of the individuals including the private jurors, the presiding judge and of course the law firms which represent the parties in the ongoing litigation.