By Robert Swafford, Michelle Simpson Tuegel, James Wren and Jeff Jury
As coronavirus has upended routines and shuttered courtrooms across the globe, online meetings have abruptly become standard workplace procedures. After a sudden and sometimes awkward adjustment phase, the virtual meeting is now for many a familiar tool -- as well as a potentially valuable one for attorneys looking for a new route to closing cases in an efficient and cost-effective manner.
By combining court-assisted mock jury testing with online mediation, parties can open another wing to the “multi-door courthouse” first described by Harvard Law Professor Frank Sander.
Sander also wrote of the importance of “fitting the forum to the fuss” -- selecting among available processes the one which offers the most prompt and economical conclusion to the dispute. At the present pandemic moment, there are few processes to select from. But online dispute resolution with the assistance of a virtual mock jury is still available, and is in fact an efficient and attractive option for parties who want to continue moving toward resolution while saving the expense of a full trial, even beyond the age of coronavirus.
Some may be reluctant to move to an online process, and it’s true that a computer screen is no substitute for face-to-face human interaction. That is especially the case when it comes to conveying the emotions that come with a traumatic injury, or the understanding that arises during a sotto voce conference with a client in the midst of a proceeding. There may be concerns that a mock jury will not be a true representation of the potential jury pool due to the accessibility of technology and time, and of course, the possibility of technical glitches.
Though a virtual process may not be the right fit for every dispute, its drawbacks may be outweighed by its significant advantages. No time and expense is devoted to travel. In traumatic cases, opposing parties need not even enter the same building. Eliminating travel means eliminating a hardship for an injured party, and eliminating the risk of exposure to COVID-19. Most significantly, it means continuing to move the case closer to conclusion.
If parties agree to consider moving dispute resolution online, the first step is to work with opposing counsel to establish objectives, terms, and what the outcome of a virtual mock trial will mean for a real-life dispute. Parties may opt to consider the mock jury’s verdict binding or simply advisory, with or without a high-low agreement. Three options parties might consider:
Regardless which of these three routes counsel and parties choose, involving the trial judge in at least the preliminary steps leading to the mock proceeding by jointly seeking preliminary rulings on disputed admissibility issues and the jury charge enhances trust in the results. It helps parties and counsel believe the outcome reasonably tracks with what would be considered in an ultimate courtroom proceeding. The court is simply informed after the virtual mediation whether or not the case settled. If mediation is unsuccessful, the court still retains the power to amend its preliminary rulings if additional evidence, argument or authority is presented in a court proceeding.
While in a traditional mock trial someone from the defense team plays the part of the “plaintiff’s lawyer” and the other attorney is actually the defense lawyer, in this model you would have the actual defense lawyer and actual plaintiff’s lawyer each doing their presentations of the case, within the confines of agreed time limits and preliminary evidentiary rulings by the court.
It’s crucial to hire a technically adept professional recruiter to fill out your mock jury. Make sure the recruiter will screen out people without access to your chosen video conferencing platform and can have participants digitally sign nondisclosure agreements. The recruiter or someone hired by both sides should be able to handle the technical setup for the mock jury and conduct a pre-flight technology check with each participant.
Parties might also opt to include a virtual jury selection with 12 additional participants, and each side given an opportunity to strike 6 participants. To provide information for peremptory strikes, the parties can draft a mutually agreed-upon supplemental written questionnaire to be filled out by participants ahead of time online.
Especially in large cases, if the mock jury results are non-binding and intended to guide mediation, it’s worth considering the use of three mock jury panels instead of one. The three- panel approach will be moderately more expensive, but increases will only apply to the costs of juror recruitment and payment. This approach can yield benefits: if all three panels come up with similar verdicts, it will eliminate the temptation to dismiss the verdict as an outlier. If the panels come up with widely varied results, it will help both sides understand that trial will have a
Proceedings by computer are still relatively new, so advance preparation is key. Do a test video meeting with your client on a day without time pressures. This is a good time to address any concerns the client may have about the case or about taking the matter online. Also, talk to your client about what they should wear, and check the lighting, sound, and background. A dress rehearsal with counsel and the judge before trial day will give everyone an opportunity to become comfortable with the format.
Attorneys must also get their technological house in order. If your team prefers pre-recorded clips of testimony or depositions to live presentation, test playback of those recorded clips
through your online platform. Planning a method to display documents will avoid delays before the jury and smooth transitions. Depending on the type of case, parties may have security concerns. Investigate your chosen platform and make sure both sides take all reasonable measures to protect their devices and information. Unforeseen cybersecurity issues may be something worth communicating in writing and signing off on for both sides.
On the day of the virtual mock jury, attorneys should be giving presentations, facilitating discussion, and observing deliberations, not scrambling to make the technology work. Hiring an IT coordinator to manage the technical side of things will help the day run more smoothly.
Once everyone is logged on, the matter proceeds much as a courtroom trial would, with jury instructions, opening statements, depositions, and so forth. At the conclusion of all the evidence, the panelists are moved to virtual rooms, given a simplified jury charge, and instructed to select a foreperson and deliberate. All parties will be able to observe the deliberations. At the end of deliberations, the panelists will be dismissed, paid electronically, and reminded of the nondisclosure agreement.
The parties now move from the evaluative part of the process to decision-making. If the parties have agreed that the jury’s decision would be binding—either with or without a high-low agreement—this is the end of the process. If the parties had decided that the jury’s decision would be advisory, they would move on to mediation.
Several process models may follow the virtual jury process:
Mediation. After virtual mock jury has reached a verdict, mediation can be free of the need for speculation about what a judge or jury might do. The least happy party may criticize the outcome, but the virtual jury’s verdict will be a helpful focal point for facilitated discussions.
Neutral Evaluation. Traditionally, a subject matter or process expert receives and considers information from the parties, then provides a neutral evaluation of the strengths and weaknesses of a case. In this model, there would be no need for prediction of an outcome, so the neutral could proceed to debriefing the outcome and assisting with negotiations.
Moderated Settlement Conference. The traditional moderated settlement conference has an impartial panel deliver its opinion on liability, damages, or both issues. A virtual jury verdict would replace the advisory opinion as a basis for further informal discussions, delivered in the structured format of a jury verdict.
Times that force rapid change on us are tough. But historically, such times leave in their wake lasting adaptations borne of the flexibility and ingenuity of the most creative minds. Often, those crisis-driven adaptations illuminate benefits and advantages that long outlast the crisis itself.
This may be such a moment, which leaves parties and counsel in permanent possession of fuller toolkit with which to keep resolution of disputes moving forward.