How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials

UPDATE: U.S. Federal Court offers Expedited Trial option. Announcement (web page) and News Release (PDF) from United States District Court, Northern District of California. It appears this whole idea just got a major jump-start!

SAN FRANCISCO ─ The United States District Court for the Northern District of California is pleased to announce the adoption of an expedited trial program. Newly-adopted General Order No. 64 (“Expedited TrialProcedures”) offers parties the option of consenting to a binding one-day trial to occur six months after the parties agree to the process. Its purpose is to offer litigants access to justice in a more efficient and economical fashion. General Order No. 64 may be viewed on the court’s website at http://www.cand.uscourts.gov/generalorders. 

Now, back to our regularly-scheduled programming:

You may enjoy litigating but your clients don't. You see a chess game. They see bills. Expedited litigation offers a happy medium. Mediation and private trials conducted by retired judges have existed for a long time, but they're not always ideal. Led by California, states have begun exploring expedited one-day jury trials. According to complex litigation and class action trial support consultant Ted Brooks, the less time you have in court, the more time you need to prepare. In this TechnoFeature, Ted explains how to lay the necessary groundwork, technology and otherwise, for all forms of shortened litigation. Trial presentation aficionados take note. This article contains 1,075 words.

Introduction

In today's economic climate, law firms and their clients are looking for ways to litigate more cost-effectively. Saving money on litigation doesn't have to mean compromising on representation, but it requires a bit of creativity. Alternative fee arrangements are now common, as are various forms of alternative dispute resolution. In addition to mediation and various forms of settlement conferences, some states are even adding the option of an expedited civil jury trial. In this article, I'll share some thoughts on how to approach these techniques with tips for both sides of the bar.

High-Speed Trials Off to a Slow Start

One obvious way to reduce litigation costs is to eliminate, or at least shorten the trial itself, as a trial team can bill upwards of 12 hours per day per team member.

Several options exist other than just giving up the fight or settling for an undesirable figure. In addition to treating settlement conferences and mediations like a trial as opportunities for demonstrating that you're actually prepared to go the distance, many states are enacting legislation, such as California's Expedited Civil Jury Trial Act (AB 2284).

While there has been a great deal of interest in this new form of "high-speed litigation" from both sides of the bar, there also seems to be a healthy respect for the unknown so it's getting off to a slow start. With just one day for the entire trial — opening statements, presentation of evidence, and closing arguments — you'd better show up fully prepared and ready to go.

Tips for Both Parties

For Plaintiffs, in addition to thoroughly reviewing and organizing any relevant discovery, preparation may require having videotaped deposition clips ready to play, a rough cut of a Day-in-the-Life video prepared, a series of demonstratives, and perhaps even an animation.

Many of these projects can be tackled in such as a manner so that you can use them as the building blocks for full-blown trial exhibits if necessary, but without taking all of the final (and costly) steps to create a "finished" trial-ready product. If you are preparing a mediation or settlement presentation, you'll also have a bit more freedom with respect to the Rules of Evidence, so you don't necessarily need to have everything perfect.

For example, you might create a dozen or so demonstrative slides. Should the case proceed to trial, this original work might be the launch pad for upwards of a hundred or more slides, but there's no reason to create the whole batch too early. Of course, there's no excuse for thinking about it too late either. Any decent vendor will understand this concept. If yours does not, find another vendor.

Defendants should also gear up earlier to be prepared to refuse the "quick and easy" settlement offer. Because trial (or ADR) costs can be reduced to just 10% of a full trial (and they can), insurance carriers often insist on exploring expedited litigation in many cases. An over-under verdict agreement can also help limit the maximum damages.

One Bite at the Apple

So what about preparation? Shortening the length of a trial, or reaching a favorable settlement, will still require a considerable amount of prep work. In fact, if you're preparing for an expedited trial, you might actually have a bit more work on the prep side because of tight scripting and rehearsal. Did I just say "rehearsal"?

When you're on a strict time clock, you'd better know how much time to allocate for each phase of your presentation. The only way to stay within your time limit is to rehearse your entire presentation.

Litigators rehearse opening statements and closing arguments — particularly in complex matters. For an expedited trial, you need to conduct an entire mock trial beforehand from beginning to end to nail your timing. A malpractice claim could arise if you find yourself out of time, but you haven't yet covered the damages. Did I mention that there is no appeal in the California Expedited Trial?

Expect the Unexpected

Now that I've scared you, those of you who have tried cases using technology shouldn't have much difficulty in an expedited setting. The key is to make sure everything is loaded and ready to go, with the entire trial being presented as one three-part presentation.

You're going to want to limit live testimony to only a few minutes. You sure won't have the luxury of time to get an opposing expert on the stand for a grilling. A few slow answers, and you're out of time. Instead, you'll want to be very thorough in your videotaped depositions, making sure to cover every possible scenario and issue. Mama always said, "It's better to have, and not need than to need, and not have."

The same goes for your exhibits. Even though you'll want to have everything in order, you still must be flexible enough to quickly locate and present any exhibits or testimony that you didn't expect to use. It's still a trial, and if one thing is certain, it's that not everything is predictable. This also means that you're probably going to want someone there operating your trial presentation database who really knows what they're doing, as opposed to fumbling with the laptop when you should be wrapping up your closing argument, focusing on and speaking to the jury.

No More Excuses

Some might suggest that all of this preparation isn't really necessary, and that the jurors might penalize you for going over the top with high-tech wizardry. Well, take a moment to watch the video, Top 12 Reasons Attorneys Should Be Using Technology in Trial, and just know that it was filmed in rural Arkansas after a medical malpractice case. If ever there were a jury you'd expect to be "unsophisticated," this would be it. They were not, and in fact stated that they "expected" the use of technology and visual trial presentation. Jurors and the courts expect sophisticated trial presentations nowadays.

Conclusion

Many litigators lack of actual trial experience because litigation is so expensive. But being an effective trial lawyer requires practice and polish. Well folks, here's your golden opportunity to get more trial experience, while at the same time offering less expensive representation for your clients. Welcome to a new era in litigation.

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Ted Brooks, the founder of Litigation-Tech, is a well-known trial consultant. He's also an author and speaker who publishes the blog Court Technology and Trial Presentation. He often works on high-profile cases, including the Los Angeles Dodgers divorce trial (with David Boies), People v. Robert Blake (with M. Gerald Schwartzbach), Western MacArthur v. USF&G ($3 Billion), May-Carmen v. Wal-Mart (Defense Verdict), PG&E v. U.S., People v. Dr Hootan Roozrokh, Shropshire v. City of Walnut Creek ($27.5M), Liou v. Caltrans ($12.5M). Ted invites you to connect with him on LinkedIn, Facebook, and Twitter.

Contact Ted:
tbrooks@litigationtech.com
(888) 907-4434


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