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Mediation Opening Statement: A Required Consideration…Your Likely Verdict Form

August 9, 2011

Continuing my apparently popular series of suggestions for a more effective opening statement for those who wish to become more successful in mediation, I would be remiss if I did not expound further upon my strong belief that  there is one “exhibit” you simply must not forget to use in your mediation.

Plaintiff or Defendant, it is my strong recommendation that you present and actively use a draft of the likely verdict form that will be used by your trier of fact should your mediation fail.

I briefly mentioned mediation use of the likely verdict form in my blog regarding proper use of PowerPoint in mediation, Mediation Opening Statement:  More Considerations: PowerPoint,  May 16, 2011.  However, I find myself consistently pushing this prime exhibit, repeatedly, as one of my pre-trial suggestions to both sides of my mediating parties.  Worse, I find myself mentally noting the obvious problems caused or opportunities missed by one side or the other in failing to use this relatively simplistic, but powerful exhibit in explanation of their opening position or opening defense.

Having begun my nearly forty years of trial practice well before the common availability of Standard Jury Instructions, much less Standard Jury Verdicts, I quickly found (and later taught to those who followed) the critical importance of “working  backwards” in planning litigation and the preparation for trial.

In short, since I knew and understood the importance of every judge to any jury and the attention paid to his/her jury instructions and verdict form delivered to the jury as (inviolate) “directions” , I always began preparing my cases for trial by visualizing what the ultimate verdict form would look like.  The verdict form forced me to formulate the jury instructions to arrive at the verdict form.  And then, knowing where the case would thus end by law, it was only necessary to put together my “order of proof” of witnesses and exhibits needed to achieve the jury instructions and verdict form I visualized.

This same ending “visual” is equally important to your opening statement.  It will quickly organize your entire mediation presentation.  More importantly, it will give you your most powerful visual “explanation” of the reasonable position you are maintaining as you begin mediation.  Properly used, it will clearly demonstrate to your opposition how any future trier of fact will arrive at a verdict that is consistent with your opening position or better.

It is not uncommon to forget that the primary target of your mediation opening statement is your opposition, not their attorneys.

Most often your opposition are lay persons and unfamiliar with verdict forms.  Unlike their counsel, who may or may not be impressed with your proposed verdict form, it may be the first time that such lay persons, including even experienced insurance representatives, have truly contemplated the exact legal format that the trier of fact in your dispute will ultimately have to complete to reach their verdict in your cause.

The verdict form, alone, is a powerful exhibit.  After all, a verdict form is what concludes the dispute if mediation cannot.  Just seeing the verdict form, in print, for the first time brings reality (and a sign of coming finality) to many.

And, after all, isn’t mediation where you hope to reach a compromise from what your ultimate verdict may be?  What better way to start than demonstrating how your jury could find?

And the format is important.  For example, in a Florida personal injury case, Florida’s “interrogatory-type” verdict, is a form that simplistically requires a jury to answer multiple questions in series.  And, if applicable, then calculate multiple damage elements.  And, each element separately entered, is then totaled.  It thus becomes very easy for any lay person to easily relate to how any given jury may well answer each such question leading to their ultimate verdict in this cause.

In many, if not most, of other states (and certainly seen predominately on television), often the lay person jury is asked only to find for or against the Plaintiff and award a single amount of damages.  As many lay persons, and even experienced insurance counsel, come from other states, the relatively “directed” purposes of an interrogatory type verdict, compared to a “one liner verdict”,  can be quite an awakening experience.

But there is another reason for working upon your ultimate verdict, early.

Simply stated,contemplating your ultimate verdict gives you an immediate and pointed roadmap as to where you must go, factually and legally, to prove and reach your claim or defense.  And, thus, it becomes a handy index of your mediation order of proof that you will want to outline in your opening statement.

More than just occasionally, when I press a participant as to what their cause’s verdict will ultimately likely look like, I am met with  responses suggesting they have not fully considered their verdict format.  Sometimes, particularly where standard forms are not available, neither side has even a draft available.  Even more frequently, participants are equivocal on what jury instructions will ultimately guide to any verdict form.

But oftentimes when parties are submerged in complex claims or defenses that sound good, but actually have no legal significance to their likely verdict,  simply asking them to contemplate how their arguments fit their ultimate verdict, alone, usually brings reality back as quickly as anything else I might tactfully ask.

But, most of all, I believe simply using your likely verdict format as an exhibit in your opening, allows you the opportunity of instant credibility.

Simply put, either your mediation position can be supported by your likely future jury/judge verdict outcome or not!

The accusation you are “pulling a value out of your (hat)” is far less likely if you can “explain” your proposed outcome using your likely verdict form, point by point.  On the other hand, if you have difficulty formulating your own explanations or cannot rationally support your position, using your likely verdict form, you instantly have your own answer as to how reasonable your starting/opening position will be received.

Similarly, any Defendant will want to use their verdict form to point to each affirmative defenses pled that a jury must contemplate, accept or reject and other likely verdict “directions “that will permit  any jury to devalue or even avoid a Plaintiff’s claim.  However, again, similarly, if such defenses sound hollow as presented by the proposed verdict, obviously more thought must be given to the true validity of any such defense.

In summary, if your likely future verdict cannot justify your opening mediation position, your credibility will be lost before you even begin.

In other blogs I have mentioned my strong suggestion of the use of a timeline or other techniques or exhibits.  Notice that the title of this latest blog “suggestion” is that your likely verdict is a “requirement” to your opening statement and mediation presentation.

In other words, if you must leave something out in your opening, do not leave out some use of your likely verdict form. 

There is no downside to your effort on this important part of your opening and your exhibit presentation.  If your mediation fails, you will be miles ahead on your trial preparation.  After all, it is the ultimate prize you seek.

And, if you succeed at mediation because of it, it will be more than worth the effort and cost in the savings you achieve.

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