Preparing to Try Your Case…at Mediation

I think of myself as a trial attorney. Someone who can look at the facts of your case and figure out the best way to win in front of a jury. What evidence do we need to look favorable to a jury? How can we make the other side look bad? What evidentiary issues will we face? These are the types of questions I ask throughout a case. But the reality is that most cases do not go to trial. In fact, the average litigator rarely tries cases. And many younger attorneys never get the chance to appear before a jury. Avoiding trial makes sense. Trials, in particular jury trials, are unpredictable. Having both tried cases in front of juries, and sat on a jury, I know this firsthand. I often tell my clients of one of my first jury trials as an example of this unpredictability. I had just finished clerking and was second-chairing a trial with a more experienced attorney. While the jury was deliberating they asked a question. Convinced that the question meant we would likely lose, we quickly tried to settle. Plaintiff’s counsel, bolstered by the question, refused to even consider a settlement offer. The jury came back in our favor, awarding the plaintiff nothing. Given the rarity of actual trials you might think that preparing each case as if it will eventually be tried would be a waste of resources. You would be wrong.

Cases resolve because of the doubts each litigant has regarding the merits of their positions. A looming trial date causes litigants to face these doubts in light of the unpredictability of trial. But an effective attorney can force the opposing side to deal with weaknesses in their case much earlier. At Konowitz & Greenberg, we do this by maintaining a trial attorney’s mindset from the start of a case. All the evidence we review in a case, from the initial client file, to responses to written discovery, to deposition testimony, is reviewed with an eye towards what can be used at trial. What weaknesses of the opposing party can we expose? What evidence would we love a jury to hear? This is the information that we then use to implant doubt in the opposing party and their counsel.

We want to make the other side face the uncertainties in their position as early in a case as possible. We do this through a variety of methods, including comments made during phone calls with opposing counsel, early demand letters, and carefully crafted mediation strategies. In fact, I recently was able to successfully resolve a protracted personal injury case at mediation, at least in part, because of these methods. The case involved an elderly client who slipped and fell at a shopping center causing extensive injuries. Leading up to mediation, I sent a strong demand letter to opposing counsel, laying out all of the evidence in our favor.

While a settlement offer in response to this letter would have been great, the real purpose of the letter was to put a spotlight on the many ways the other side could potentially lose. At the mediation, I used all this evidence to craft an argument focused on the triability of the case. Any time the mediator focused on a perceived weakness in the case, I shifted the conversation to why the case would be successfully tried. From the start of the mediation the opposing side and mediator knew what our theme would be at trial, and what evidence we would use to bolster that theme. Again, this forced the other side to deal with how the weaknesses of their case would be viewed by a jury. The opposing party chose to settle, rather than proceed to trial and face uncertainty. More importantly, we also avoided the uncertainty of a jury trial, achieving an excellent result for our client. Without focusing on how we would try the case, such a result would have been difficult, if not impossible, to accomplish.

At Konowitz & Greenberg we view every piece of litigation as if we are going to take it to trial. This allows us, more often than not, to achieve positive outcomes for our litigation clients well before trial. Most times this result is obtained through mediation and settlement. And if, by chance, we are not able to settle your case, we will be ready for trial.

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