Consider Involving Both Sides in the Moot Court | Holland & Hart – Your Message at Trial

Mediation is often driven by predictions made by each party, as well as by the mediator: if this case were tried before a jury, what would he or she do with the case? Naturally, each of these three actors will have an opinion about this, and these opinions may be well-founded on past experience and an objective assessment of the case. Yet these perceptions are often far apart. When there is a case that should be resolved but is not, or at least not for a long time—and this is quite common—I think the reason for the lack of agreement is that both parties, and potentially the neutral mediator as well, lack a credible and common reference point for what a jury outcome might be.

Last month, Persuasion Strategies hosted a mock trial involving both The Parties Involved. This is a radical departure from the typical mock trial that is sponsored by a single party, with opposing arguments simulated by a cooperating attorney. In this case, in a customized process we call “Research-Assisted Alternative Dispute Resolution” (or RA-ADR, pronounced “radar”), both sides of a police excessive force case—the city and the injured party—met with us to plan and execute a mock trial where each side presented and each side witnessed the deliberations and closing interviews of three representative mock juries. While it remains to be seen whether the project will help the parties reach a resolution, what is clear is that each side came away from the exercise able to confirm some aspect of their prior assessments of the case while learning something new about the case that they had not anticipated. Both sides came away with a more reliable reference point on the strengths, weaknesses, and potential outcomes of a jury. While we’re likely to explore this experience in more than one article, for this first look, we’ll share some lessons learned about the benefits, possibilities, and wisdom of a two-party mock trial.

What are the advantages?

When a solvable case resists resolution, it’s often because one of the parties, or their clients, or both, has trouble understanding the likely outcome. A mock trial won’t involve the same scope of evidence and won’t be able to replicate every decision a judge makes. But a mock trial will provide the basic step of showing your jurors how they respond to the broad story of your case. And if you can take the time to delve into some of the details of each side’s proposed damages, as we did, you’ll get a response to that, too. As you might expect, both sides felt some discomfort as they watched the jurors render their verdicts (the parties watched from separate closed-circuit viewing rooms). But we think both sides left the project feeling a better understanding of what they were up against in getting the case to a jury and what it would take to resolve the case.

Is it possible?

Before and during the planning of the mock trial, this is where the biggest questions arose for us: Would both sides be willing and able to temporarily step out of their roles as adversaries and advocates in order to agree on and plan for a reasonable and representative test that would benefit both sides? We are pleased to say that in this case, they did. Both sides demonstrated a commitment to the end result and a willingness to compromise along the way, and their shared interest in a project outweighed their disagreements. As we anticipated, there were disagreements about almost everything: What is the statement of the case? Should the parties share their outline in advance? What video of the incident should we show the jurors? What issues are outstanding and what are not? Where can we use testimony? What instructions should we read? How should the verdict form be worded? At the outset, we developed a road map for how to address all of these issues, and without falling into a “judge” role, the facilitating consultants – my colleagues and I – played a serious and substantive role in recommending solutions at each stage. I don’t believe this would work in every case, perhaps not in most cases. But in this case, where both parties shared a common motivation to have a better frame of reference to resolve the case, we are pleased to say that it worked.

Is this wise?

The fundamental question that litigants must ask themselves is whether it makes sense to consider such a process. There are many ways to tailor discovery. It can focus on a single issue or witness if that is where the controversy lies. It can focus in much greater detail on damages. It can extend over several days in order to capture all angles of a more complex case. It can even involve a mediator playing the role of the judge before and during the trial. But the question is whether this makes sense. Some might worry that “putting the cards on the table” in front of the other side will spoil some kind of “surprise” that is intended for trial. Others might be annoyed at the idea of ​​working cooperatively with the other side in the case. Some might simply doubt that a mock trial can ever fully represent all the uncertainties and unknowns of trial. While some of these concerns may be well-founded in some cases, I think that, overall, the reasons for caution are overstated. YOU don’t do it have a secret weapon that the other side hasn’t thought of. You can Work sensibly with the other side, and in any case, it’s a good thing you’re trying. And, no, the mock trial won’t be the real trial, but it could provide a much better basis for evaluating the case than you currently have.

While Persuasion Strategies has organized and planned bilateral mock trials before, this experience last month was the first time we were able to fully execute a mock trial involving both parties. The results, we believe, demonstrate the potential of this method as a new tool to help litigants resolve cases sooner, with less time, expense, and uncertainty.

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