Jury Trial Crisis — Why So Few Cases are Going to Trial

Jury Trial Crisis -- Why So Few Cases are Going to TrialThe Florida Bar recently released the results (pdf warning) of its research into the declining number of jury trials in America. It is a phenomenon which is affecting both civil and criminal jury trials, for somewhat different reasons. I’m only going to discuss the findings as to civil trials, as that is more relevant to this site. While the causes cited in the study for this decline in jury trials are mostly based on assumption and speculation, my own experience leads me to believe that they are probably accurate. The danger presented, especially in civil cases, is that the number of jury trials will continue to shrink unless some type of corrective action is taken. The threat of the jury trial is only viable as long as there are lawyers both able and willing to carry it out. As this threat diminishes, so too does a plaintiff’s ability to achieve any sort of justice.

The Shrinking Number of Jury Trials

The bar’s study used data gathered regarding the percentage of civil cases which proceeded to trial in both federal and state court over a number of decades. In federal court, they examined nationwide data from 1960 through 2002. It revealed the following:

Settlement tip

In 1962, there were 50,320 civil dispositions and 11.5% (5,802) of those dispositions were by trial. In 2002, there were 258,876 civil dispositions, but only 1.8% (4,569) of those dispositions were by trial.

In state courts, the numbers were not much better:

As to civil cases, in 1976 there were a total of 528,567 trials out of 1,464,258 total dispositions. This number represents 36.1% of the total dispositions. By 2002, there were 487,200 trials out of 3,087,857 total civil dispositions. This number represents 15.8% of the total dispositions. These numbers include both bench and jury trials, with the majority of trials in state courts being bench trials rather than jury trials.

So what happened over this time period that would cause such a drastic reduction in trials?

Likely Causes for Fewer Jury Trials

The study cited several possible reasons for the reduced number of civil cases going to trial:

  • The rise of alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration, which is, for the most part, a good thing.
  • The increase in the cost of going to trial, including the costs immediately leading up to trial. These include expert witness fees and discovery costs. I can personally vouch for this, as I was once held hostage by my own expert witness (a GI doctor), who wanted a non-refundable $5,000.00 retainer to be available for a 3 hour period on the first day of trial.
  • The increased delays in bringing a case to trial, due mostly to underfunded and overburdened court systems. When a plaintiff has to wait years for a trial date, the incentive to settle increases substantially.

One alarming fact noted by the study (though not identified by them as a cause of fewer trials currently) is that as the number of jury trials declines, so, too, does the number of lawyers who have trial experience. Therefore, we face a snowballing problem, as the current and next generation of lawyers avoid trials because they don’t know how to conduct them, and thereby create fewer trials and fewer “trial-ready” lawyers over time. I guess the only comforting fact for plaintiffs is that equal numbers of plaintiff and defense lawyers will be scared to death to go to trial because they will all be equally inexperienced.

Claimsguide Promo

Possible Solutions to the Growing Jury Trial Crisis

To combat the “trial experience gap” new lawyers now face, the bar suggests implementing and expanding mentoring programs, trial clinics in law school, and internships. I don’t know how much this will help, as any trial training given in law school will likely be forgotten by the time most new lawyers are ready to try their first cases. Also, having a mentor assigned by the bar so you can watch him try a case is a far cry from preparing for and trying a case yourself. Also, combating the rise of inexperienced trial lawyers without increasing the availability and affordability of trials won’t do much good for real life plaintiffs. Even if your lawyer is ready, willing and able to try your case, it may be far too expensive and take far too long to get a trial date to make it a reasonable possibility.

The best suggestion made by this study is “full funding” of our trial courts. As court budgets get slashed, dockets get backed up. Courts which have a reasonable number of judges and support staff relative to their caseloads could make a world of difference. Imagine how nice it would be if you could be assured of getting a trial date within a year of filing your complaint. Imagine discovery disputes and motions being handled in a timely and efficient manner, instead of taking months to resolve. Slow cases work to the advantage of the defense (they get to hold on to their money longer), as the plaintiff may not be able to pay her bills or get needed medical treatment without settling her case. Fast cases work to the advantage of the plaintiff, as nothing motivates a defendant to settle more than a looming trial date (and the enormous number of hours its attorneys will bill as a result of that).

Without something being done to reverse this decline in the number of jury trials, I have a feeling that it is going to become increasingly more difficult for personal injury plaintiffs to get any kind of justice. I’m open to any suggestions. . .

This entry was posted in General and tagged , , , , . Bookmark the permalink.

30 Responses to Jury Trial Crisis — Why So Few Cases are Going to Trial

  1. kim says:

    Looks like I’ll be doing my part to help keep attorneys in trial-condition. Mediation went nowhere, no surprise in a case against a municipality. Five weeks to go. And given how little they asked at my depo, I’m pretty clueless as to how to prepare. I’ll be glad when it’s over. Five years is a big chunk out of a life

    • fl_litig8r says:

      I’m sorry your case didn’t settle, but this is pretty typical in employment discrimination cases. At least you picked a lawyer who is willing to take it to trial.

      As far as trial prep is concerned, remember that your own lawyer will be the first to question you this time around. So, at least you will be comfortable for the longest part of your testimony. See this article to see if my trial “script” method might be something you want to try.

      As far as cross-examination goes, I wouldn’t expect any huge surprises. Because employment discrimination cases lose on summary judgment more frequently that personal injury cases, most defense lawyers don’t hold back anything when questioning you in your deposition. They’d rather get the damaging testimony early, and possibly win on summary judgment, than save some surprise questions for trial. Of course, they could always find something new to ask you about during their trial prep, but for most cases like yours they shoot their whole wad during the depo.

      At least the end is in sight. Try to support your lawyer leading up to trial. He’s going to be nervous, but that’s only natural — it’s not really a bad thing.

  2. beatrice says:

    I am not sure, based upon my limited knowledge (or rather my unlimited ignorance), but I think you would be a good person to introduce and explain jury nullification. It might make more people realize the extraordinary power of being a juror.

    • fl_litig8r says:

      While I find jury nullification to be an interesting topic, it doesn’t really fit the purpose of the site — to help personal injury plaintiffs. Aside from warning them that this can occur in general — though it’s far more likely in a criminal case than a civil case, which makes it incredibly unlikely in a civil case — I don’t see how a jury nullification article would serve the purpose of the site. I also really don’t feel comfortable planting the thought of nullification willy nilly in the heads of people I don’t know. Not to be a snob, but I don’t trust the average person to be smart enough to know how to use it responsibility (at least what I consider to be responsibly). While I’m not opposed to the practice in principle, like I’m not opposed to gun ownership in principle, I don’t want to be viewed as encouraging it as something for everyone.

  3. Fern says:

    Hi,

    Given that you have been so generous with your advice in the past, I wanted to ask you another question…

    After 6 Motions to Compel Production, Defendant still has not provided certain contracts. They claim they don’t have them, but that makes no sense given the size of the corporation. Either way, the judge was fed up and sanctioned them to pay for the depositions of those people whose contracts they “cannot” find (who still work for them) and assigned a special master because he feels that they will intimidate us. They also sanctioned them to pay for the special master’s fees. The judge said that he would give the special master discretion to revisit the payment in case something happens during the depositions, and it’s clear that they will do anything NOT to pay. These are my questions:
    1. What could possibly happen that would make the special master order that costs be shared when they initially were the result of a sanction against defendants? In other words, what do we have to be careful about doing/not doing?
    2. In their latest court-ordered supplemental production, they’re still missing said contracts, for example, while sending other irrelevant documents. In their supplemental response, they say that they will soon move for summary judgment (we haven’t even done the first depositions yet!). My question here is: Would it be better to wait and reply to their summary judgment OR should we beat them to filing for summary judgment ourselves first? Are there pros/cons to who files first? As plaintiffs what would be better? Would having scheduled depositions delay their opportunity to file for summary judgment taking into consideration that Florida Rules say that they can file 20 days after discovery ends?
    3. Can you suggest any good sources (online or books) to prepare said summary judgment (or answer it)?
    On top of it all, the judge is leaving the bench in December, so we’re nervous about what can happen and/or if they’re trying to confuse the judge before he leaves…Is there a way to know ahead of time who will inherit the case?
    Thank you so much for any help/direction you may give me 🙂

    • fl_litig8r says:

      1. Honestly, I’m not sure why the judge left an opening to allow for the possibility of the special master’s fees to be split. I doubt that it will depend on your conduct, though. It’s more likely that the judge will consider how much actual intervention by the special master is required to get the defendants to comply with the discovery as they should — the more the master needs to get after them, the more likely they will have to pay on their own. If this is the case, then I have a problem with this approach. If the defendant becomes fully compliant with discovery now that the special master is involved, I don’t think that this should get them off the hook for his fees, as it is likely the very presence of the master that makes them compliant. To answer your question, though, I doubt that your conduct, unless you do something pretty outrageous, will have any impact on the decision regarding the special master’s fees.

      2. Whether or not you should file for summary judgment has nothing to do with whether the defendant files for it. It’s pretty rare for plaintiffs to file for summary judgment, except perhaps as to one or two distinct issues (a partial summary judgment), and even then it’s rare. You should only file such a motion if you truly believe that you can meet the standard — that the undisputed facts show that you are entitled to judgment as a matter of law on a particular issue. As long as there is any dispute in the facts supported by evidence, even if the evidence is overwhelmingly in favor of one side, summary judgment can’t be granted and the issue needs to be decided by the finder of fact (a jury in a jury trial, a judge in a bench trial). There’s no advantage in filing first when it comes to summary judgment. You’ll each get to file responses and each motion will be decided on its own merits. There is a huge potential downside to you filing your own motion at all, however, and that is you inadvertently conceding that the facts are undisputed on an issue when you really shouldn’t — opening the door for the defendant to get summary judgment on that issue. From a tactical standpoint, it is almost always better for the plaintiff to merely oppose a defendant’s motion for summary judgment, and insist that there are enough disputed facts to force the case to go to trial. While this is something that needs to be decided on a case-by-case basis, it is wrong to think that you are strategically forced to file for summary judgment just because the defendant will. In most cases where such a motion is filed, it’s only the defendant filing while the plaintiff merely opposes the motion and pushes for the issues to go to a jury.

      You’re misreading the rule with respect to the 20 day provisions. A summary judgment motion can be, and usually is, filed well before discovery closes. The first 20 day provision requires that a plaintiff wait at least 20 days from the commencement of the action before filing (you can’t file for summary judgment at the same time you file your complaint). The second 20 day provision states that a hearing on a summary judgment motion must be scheduled no sooner than 20 days after the motion is filed, to give time to the opponent to file a response (which actually needs to be filed at least 5 days before the hearing). From a practical standpoint, the court would likely delay or continue a scheduled hearing on a motion for summary judgment if the opponent needs more time to conduct relevant discovery — so if they file their motion while you have depositions pending and they try to set a hearing for a time before the depositions can be taken (and transcribed), you’d just file a motion with the court letting it know why you need the hearing delayed and it will reschedule the hearing.

      3. Summary judgment motions are usually fairly case-specific, as they require both sides to pore over the discovery and find support for their contentions that the facts either are or aren’t in dispute. You’ll be citing to discovery documents (and affidavits) quite frequently, and those documents are unique to your case. The only things that will be boilerplate about the motion and response will be the part where each side gives a perfunctory explanation of the summary judgment standard, which by now I think most judges ignore anyway (every attorney and judge already knows this backwards and forwards). So while I can’t really recommend any form books to help you (though the Trawick procedure form book, which you can find at most county law libraries might have something very generic — it’s way too expensive to buy on Amazon for just one case), I can say that your focus really needs to be on either finding or creating (via affidavit) support in the record evidence for your contention that the facts the defendant claims are undisputed are in fact, disputed. Remember, in opposing a motion for summary judgment, you don’t need to convince the judge that you should win the case. You only need to show that there are facts which the jury needs to decide that prevent the defendant from having judgment entered in its favor as a matter of law.

  4. Fern says:

    Thank you so very much! You’ve been incredibly helpful!

    You mention affidavits, and I have a question regarding this: Instead of deposing (and asking subpoenas from) non-party witnesses (which is more costly and, being official, we would have to let defendants know, etc.), could we ask them to file affidavits instead (they’re friendly witnesses)? In our research, we found that being pro se, we can approach witnesses directly (unlike if we had a lawyer), so we have approached some and they’re willing to help, so we were thinking about asking them for affidavits for the specific facts they know about the case. What would be your opinion and guidance on this?

    Also, in case that these non-party witnesses don’t want to do affidavits, could we serve them subpoenas without deposing them? This would be especially helpful for non-party witnesses who live out of state. Can this be done?

    Last question (a bit off-topic)…if we have a telephonic hearing, can we record it? Mostly because the law firm is huge and they have court reporting in-house, but obviously, won’t share the transcripts with us, so since it’s telephonic, could we record the hearing without telling the Judge or Deponent’s lawyer?

    Thank you!! 🙂

    • fl_litig8r says:

      1. Yes, you can get affidavits instead of deposing these witnesses for use in your opposition to the defendant’s motion for summary judgment. You don’t ask the witnesses to file the affidavits, though, if that’s what you thought. You file them yourself. I assume that the defendant sent you interrogatories at some point which asked for the names of everyone who has knowledge about the case. If you didn’t include the names of the people from whom you will obtain affidavits, I strongly suggest sending the defendant a supplemental answer to that interrogatory listing these people’s names (along with whatever other information about them is required by the interrogatory). This should be done as soon as possible. If you don’t, you run the risk of the court striking the affidavits of these witnesses due to your failure to identify them in your discovery responses.

      2. I have no idea what you are trying to do when you ask if you can serve the witnesses with subpoenas without deposing them. If you mean that you just need records from them, you can try to obtain them through a subpoena duces tecum, but if the witness objects to the subpoena, the only way to force them to produce the records would be to actually depose them. If you just want an affidavit from the witness, there’s no need to subpoena them. You just ask for it informally. In fact, you can’t compel a witness to create an affidavit through use of a subpoena. With respect to to out-of-state witnesses, the subpoena process becomes more complicated. Subpoenas issued by a Florida state court are not enforceable outside the state. That’s not to say that some attorneys don’t send them out anyway (and often get responses), but if the witness ignores the subpoena, you have no recourse. To get an enforceable out-of-state subpoena, you’d need to request a court in the relevant state to issue what’s known as letters rogatory, which is kind of like a mini lawsuit filed just for purposes of the court issuing a subpoena on your behalf. Honestly, it’s a huge pain in the ass and I’m not going give detailed instructions on how to do it because it would take too long and my intent here isn’t to teach people how to be lawyers. I’ve given you the name of the thing you need to look up if you choose to go that route — the rest is up to you.

      3. Because Florida’s wiretap laws require the knowledge of all parties to the conversation, I would advise against recording a telephonic hearing without notifying everyone involved that you are doing so. While an argument could be made that there is no expectation of privacy among the participants to a court hearing, I wouldn’t risk criminal penalties (and the ire of the judge, at the very least) in the hopes that such an argument would work. I don’t think anyone would object to you recording the hearing as long as you let them know ahead of time (you could do this in your Notice of Hearing or by cross-noticing a hearing set by the defense or the court and stating in your notice that you will be electronically recording the hearing). This recording would be useful only for your personal use — it wouldn’t be an official transcript acknowledged by the court (or an appellate court).

      • Fern says:

        Thank you! That is quite helpful!

        Regarding the recording…What about them? They clearly said that they had a transcript, but they never said ahead of time (or at the time of the hearing) that they would be having a court reporter or that they would be recording the hearing in any way. Would the same apply to them in this case? I assumed that because they were a large law firm, that it would be “assumed” that they would “record” it somehow, and sure enough they did say they had a transcript although, naturally, they will not share that with us. They even filed said “transcript” with the Special Master that was appointed by the Judge…

        Also, two more things:
        1. What should I file to tell the court that they have spoliated evidence that should have been preserved? By now they absolutely swear that they don’t have certain information (such as employee contracts, although I don’t believe it), so my thinking is that if they “swear” in their production request that they have given “everything” and nothing else is in their possession, that would mean that it was spoliated. Can I file a Motion or should we file/do something else to let the court know?

        2. If in fact, they admit to not having “anything” more in their possession, could we file a Request for Admissions regarding the information that they said/gave/produced through discovery?

        Again, thank you for your invaluable generosity and kindness!

        • fl_litig8r says:

          Regarding their use of a court reporter, ideally that would contained in their notice of hearing as well (so you would know who to order a transcript from if you wanted to), but it’s not always done. Because the presence of a court reporter is obvious to people attending the hearing (you can see him or her — and their presence should be announce to people attending by phone), and because you’re allowed to have a court reporter present for purposes of creating a record for appeal purposes, I can see them drawing a distinction between this practice and covertly tape recording a hearing over the phone. In short, you’re not going to get them in trouble for use a court reporter without notice, but you may get in trouble for secretly recording the hearing on your own — why risk it, when you can just tell them what you’re doing?

          1. You don’t need to notify the court about the potential spoliation until you’re ready to ask for a remedy, which is usually asking for a jury instruction that directs the jury to draw a negative inference against the defendant due to the destruction of evidence. In more severe cases, where you can actually prove that the destruction was intentionally done to hamper your litigation efforts, you may be able to get a more severe sanction, such as the striking of their pleadings or entry of a default judgment. Notifying the court about the spoliation without requesting a specific form of relief is pointless, so the means by which you bring the spoliation to the court’s attention should be via a motion for the remedy you want based on the spoliation.

          2. This question is too vague. What specifically would you ask in a Request for Admissions?

  5. Fern says:

    Thank you! For number 2, what I mean is that if they say, for example, we state that so and so could not be found and effectively is not in our custody or possession (for example, a contract) OR in their production they offer an official document that shows someone’s specific title, could you do a Request for Admissions that makes them admit that in fact this person worked in that position appearing in official documents as well making them admit that they do not have X document?

    • fl_litig8r says:

      Yes, you could, but if you already have them admitting these things via deposition or interrogatory answers, I don’t see any added benefit to also having them admitting it through a request for admissions.

      • Fern says:

        Well, they haven’t actually admitted to it through interrogatories or depositions, just through produced documents where those titles appear, for example, or in their Response to Production where they affirm that no additional documents are in their possession. The thing is that they always say that, but after we file an additional Motion to Compel, more documents “seem” to appear…so we thought that if we “forced” them to admit what they have been “saying” through a Request for Admission, they would stop the nonsense…

        • fl_litig8r says:

          If that’s the case, then go for it. Of course, it’s much easier to pin someone who’s being evasive down through a deposition than it is through Requests for Admissions — but it’s also more expensive.

          • Fern says:

            Here I am again asking another question…we just received a notice from defendants announcing that they want to depose our current employer as well as our previous one. I have 10 days to oppose it, and I really would like to, especially my current employer, who doesn’t need to know that I am involved in litigation. Deposing my current employer has nothing to do with the case, even if it is an employment case, especially because it is not the first job that I had after being terminated. Could I oppose that? How or under what argument could I do it? I don’t mind if they depose my previous job, but I really don’t want them to depose my current one…I appreciate your help and guidance more than you know…you are like a guardian angel!

          • fl_litig8r says:

            I’m sorry to say that I don’t see you successfully challenging their right to conduct such a deposition. The scope of allowable discovery is so broad that courts almost never accept “this witness is irrelevant” as valid grounds for prohibiting discovery. The defendant can claim many reasons why your current employer may have information that might reasonably lead to admissible evidence in your case — at the very least, it can ask your current employer whether you’ve ever discussed the facts of your case with him/her. It doesn’t have to take your word for it that you haven’t. I really can’t envision an argument that would convince the court to prohibit this deposition. Sorry.

  6. Fern says:

    Thank you 🙂 Maybe we’ll try the cheaper way first, and if that doesn’t work, we’ll try the deposition!

    You’re amazing!! 😀

    • Fern says:

      Is there any type of document I can file with the Court for me to bring/show the Court that the opposing party violated a law that would support the claims in my complaint? In other words, If I have the regulations and the laws that say that they cannot do something they did, how can I let the judge in the case know about it? I don’t see doing it through Motion (what kind of Motion would I need to file for that?), and the complaint only shows the cause of action, in this case fraud, but not the actual law they violated, so I’m not sure how I can make it known. The opposing side said that they will soon file a summary judgment, but they haven’t yet. Would I have to wait until they do so for me to refute it by showing the law and how they violated it, or is there another way to let the court know?

      I was thinking that they probably don’t know I know the existence of that regulation, so that once they do, it would help to settle the case. Even if it doesn’t help to settle, I really would like to see how they would defend “that” to also be prepared. Thank you 🙂

      • fl_litig8r says:

        There is generally no need to make the court aware of statutes and regulations unless you are using them in some form of argument. The court would likely ignore any such type of notice because you aren’t asking it to do anything with the information you’re conveying. Picture your filing of such an “FYI” notice going as follows:

        You: “Hey, judge, the defendant violated regulation x, which says blah blah blah. . .”

        Court: “And. . .?”

        The “and . . .?” part is what you need to answer to know how you should bring this matter to the court’s attention. If you believe that the alleged violation of the regulation you found creates liability for the defendant, you could raise it in your own Motion for Partial Summary Judgment, asking that summary judgment be entered on the issue of liability relevant to the violation of the regulation — you’d still need to prove causation and damages, but winning such a motion would certainly be nice. Otherwise, you would just use it to defend against the defendant’s Motion for Summary Judgment. If you think the defendant isn’t aware of the regulation, that would be something nice to surprise them with in your summary judgment response. While they may be allowed to file a reply to your response to address this issue, the court may negatively view their failure to mention an important regulation in their initial motion.

  7. Fern says:

    Thank you. Yes, I see your point, which means that it’s probably best to wait until they file summary judgment. Your answer also made me think that it’s probably best to also not bring it up during the deposition of one of their employees, since that would give them a clue about it or about me knowing. By the way, is there a way to ask the judge for mediation or is this something that the judge alone can order? The judge has hinted to wanting this to go to mediation, but so far it hasn’t happened…

    On another matter, why would opposing side send subpoenas without deposition to be presented at their office, and at the same time also send the representative a notice for deposition with a subpoena duces tecum for a different date? I plan on attending the deposition, but can I be present for the subpoena day too? Could I bring an affidavit from another person into a deposition to use if the deposition contradicts what really happened, or is it better to file it after/before the deposition?

    Have a wonderful day! 🙂

    • fl_litig8r says:

      Courts will usually order mediation on their own if they are going to do it all. Some order it automatically once the case has been filed. Others order it before granting a trial date. Some never order it at all (but those are rare unless the parties scheduled their own mediation). While you could file a motion asking the court to order the matter to mediation, I wouldn’t get my hopes up about it. If the court has already openly mused about it, but hasn’t done it, there’s probably a reason. It doesn’t want to waste the parties’ time if one side has no interest in settling — at least not until its own time may be wasted with a trial. Asking the court to order mediation may just signal to the other side that you’re desperate to settle, so I’d probably just wait for the court to do it on its own or for the other side to mention something that makes it seem like they’re open to mediating voluntarily.

      With respect to the subpoenas, are you saying that they subpoenaed records from people and also set the depositions of these same people for a date after the records are due? If so, it could be one of two things. First, it could be just to save time, because if anyone objects to the production of the documents the only way to get them is through an in-person deposition. They may intend to cancel the depositions if the records are produced. Second, it could just be that they want these people’s records in advance of their depositions for preparation purposes.

      The subpoenas for records don’t require you to show up anywhere, because odds are those records are just going to be mailed before the deadline set in the deposition. If you want the records that they are subpoenaing, just serve the defendant with a Request for Copies for each subpoena you’re interested in. You’ll have to pay for the copies, but the defendant will have to provide you with all of the records produced. You can serve such a request now and the defendant will provide you with copies once it gets the records.

      If you have an affidavit from the person being deposed, you could use it during that person’s deposition to impeach him or her if he or she tells a different story at the deposition. Someone else’s affidavit could, in theory, be used at a deposition, but how useful that would be that really depends on the person who wrote the affidavit and the one being deposed. I can’t speak in generalities about such things.

      • Fern says:

        Hello! I just wanted to let you know that after asking you about mediation, surprisingly, the other party asked me if I would be willing to go to mediation, and whether I would have issues with having the special master be the mediator. I said it was fine. However, I have a couple of questions: 1. Do both parties pay for the mediator’s fees?; 2. Can I have someone mediate on my behalf? What I mean here is: am I the only person that can talk or can my family intervene in the mediation?; 3. Are there any resources (books, sites, etc.) that I can look into to familiarize myself with the mediation process and what can/cannot be done?; 4. Can I bring additional evidence into mediation, and if not, how can I bring it into the Court’s and the other party’s attention?

        Thank you so much! 🙂

        • fl_litig8r says:

          Typically, the cost of mediation is split by both parties, though if your special master is acting as mediator, there may not be a charge. The only way to find out is to ask. You can’t have someone mediate on your behalf unless that person is your lawyer — otherwise it would be considered unlicensed practice of law. Sometimes a family member will be allowed to attend as emotional support (you need to get the approval of the other side before doing this), but that person cannot speak on your behalf. Maybe a little “whispering in your ear” would be tolerated, but even that would be pushing it. I don’t know of any good books offhand to teach you how to mediate. If you haven’t read my article on mediation yet, check it out. It describes the process as a typical plaintiff with a lawyer would experience it. Of course, you’d need to act as a lawyer as well, but the only thing you really need to prepare for is an opening statement. I say “only”, but I’m sure that this will be stressful because it’s your first time and you have no experience with other mediations to draw from. Basically, you’re giving a summary of your case (I wouldn’t go more than 20-30 minutes, if that — you’ll have time for rebuttals and further arguments you may have forgotten throughout the course of the mediation), so think of it like a verbal demand letter. Give a brief summary of the facts from your perspective, why these facts support you winning and a breakdown of your damages with whatever documentation you have to support your numbers. Usually, the plaintiff makes the first settlement offer during her opening statement(unless there is already a pending offer you made before the mediation which was never responded to, in which case I’d just reiterate it).

          You can bring whatever you want to the mediation as far as evidence is concerned. Don’t waste a lot of time with things you know the other side already has, though. You can show important documents as part of your opening, just don’t go page-by-page over things you’ve already given them. Focus on the highlights — smoking guns and things that really support your case.

          Nothing said or done in mediation will be brought to the court’s attention. Mediation is confidential and whatever is discussed there won’t be shared with the court. The very idea of “bringing something to the court’s attention” is a misplaced notion. The court only wants to know about things that are relevant to pending motions (or at trial if it’s a bench trial). You don’t file things as an “FYI”. The court doesn’t care about and won’t review things you file that aren’t in conjunction with some motion or other specific request for the court to do something with the information you filed.

          • Fern says:

            Yes, I had checked your article. Thank you so much for your detailed answer. The only reason why I had asked is because I remember attending a mediation with my parents and basically, we were all in one room and the other party in another room and the mediator would go from one to the other bringing amounts, so we could all talk because we were never in the same room with the other party. The way you describe it (being in front of the judge, etc.) is something I didn’t expect, but I understand. Maybe we will be separated afterwards? As for books, etc., I was asking mostly so that I would have a basis for calculating the amounts, since I understand that damages are kind of hard to calculate. Again, thank you so much for all your help! Have a great weekend!

          • fl_litig8r says:

            I assume when you said “being in front of the judge” you meant “being in front of the mediator”, because there’s no judge at mediation (although sometimes magistrates in federal court will be mediators). There are some mediators out there who don’t do “joint sessions” where the parties are together at the beginning of the mediation. I don’t use those mediators, because I think the joint session is one of the main parts of a good mediation — when else do you get the chance to speak directly to the other party without having it filtered through their attorney? If your special master suggests skipping the joint session, I’d reject that suggestion.

            You won’t find any (good) books on calculating damages. It’s very subjective, aside from the hard numbers such as medical bills (and even those might be challenged if causation or liability is an issue). The best resource is a jury verdict/settlement reporter for your area. These are periodicals (usually once a month) that give brief descriptions of some verdicts and settlements that occurred in your area, and they are indexed several ways, including by type of injury (shoulder, back, hand, etc.) so you can try to find “comps” like you do in real estate. Of course, like in real estate, no two cases will be exactly alike, but pointing to prior verdicts or settlements for similar injuries to support your numbers is better than pulling them out of thin air. Unfortunately, most law libraries don’t carry these reporters (you should still check, though) and they’re available only via paid subscription.

  8. Fern says:

    Thank you so much. Could I file a Request to Inspect Subpoenas as opposed to getting Copies of Subpoenas? I simply would like to see what they receive and, if anything, copy something I need. Is this something I need to file with the Court or can I simply ask opposing counsel for it?

    As for the Affidavit, they are deposing a representative from the organization, but the affidavit I have is from the actual person I worked with, so I was thinking that if they say anything that is not true, or if they don’t actually know much, I could show them the affidavit instead to clarify the facts.

    • fl_litig8r says:

      There really is no procedural mechanism in place for doing what you want to do with the subpoenaed documents. Fla.R.Civ.P. 1.351(e) only provides that you can get copies of the subpoenaed documents via a Request for Copies. It doesn’t say that you can review the documents and pick the ones you want copied, and I doubt that the court would order that, mainly because it would require defense counsel’s office to spend man hours sitting with you as you review their documents (they’re not going to let the documents out of their sight) and would require that they set aside space in their office for you to conduct the review. It’s a burden that I can’t see a judge imposing. You can ask defense counsel if he’ll let you, but if he says no, I doubt the court will force him.

      With respect to the affidavit, I don’t think that what you’re planning is a wise strategic move. While you could show the affidavit to the witness and ask if the contents of the affidavit refreshes his recollection (and maybe gets him to change some prior answers), just showing it to him for purposes of calling him a liar won’t accomplish anything. He doesn’t have to agree with the facts in the affidavit, and if he doesn’t, you’ve accomplished nothing by showing it to him other than educating the other side as to the contents of the affidavit. If I had an affidavit like that, I’d just keep it for purposes of opposing their summary judgment motion. If the witness being deposed says something contrary to what’s in the affidavit, your affidavit will create an issue of disputed fact which will preclude summary judgment from being entered on the basis of that witness’ conflicting testimony. Showing them the affidavit at the deposition will give the defense an opportunity to plan a way to work around it for purposes of their summary judgment motion, either by deposing the person who gave the affidavit or tailoring their own affidavits to make it appear that yours doesn’t create an issue of disputed fact. Strategically, I’d rather keep such an affidavit to myself until I need to use it to oppose the summary judgment motion.

  9. Shelice says:

    [post redacted by admin because it contained a privileged exchange between attorney and client]

Leave a Reply

Your email address will not be published. Required fields are marked *