By Eric Gillett
Have you ever found yourself late in the afternoon sitting in a conference room when the mediator walks in only to tell you that your latest offer is getting no traction with the other side? You’re still so far apart it feels less and less likely the case will settle. Nothing you’ve communicated to the mediator has moved the needle to a point where you or your client are encouraged to make any big moves. According to the mediator, your opponent believes a jury will believe that your client has testified untruthfully, and his credibility is now a central issue. You respond that any misstatements are minor, inconsequential to liability or the alleged damages. You may even ask the mediator, “so what?” Maybe this is just that one in a hundred case that will go to trial. You’re confident a jury will see these misstatements as you do, a distraction. But to put a painful point on it, the mediator tells you she doesn’t like your chances with a jury. She warns there is risk ahead.
No matter how hard we prepare, no matter how well we execute our plan, no matter what we do, sometimes the result is not what we predict. And if we go to trial, it is no longer within our control. When we turn away from a mediated solution and turn the solution over to a jury of twelve people, we lose our best chance, maybe our only chance to control the result. Once you turn your case over to a jury, you are completely dependent on twelve people to find in our favor. It no longer matters what you think. If they think differently, you lose. In other words, when you hand over control to a jury, the jury decides your client’s fate, not you.
I speak of this with some authority from years of experience with mediations and jury trials. I’ll relate the story of one jury trial with which I have more than a passing familiarity. I believe it is a cautionary tale for those who might otherwise too quickly dismiss an opportunity to resolve a case before receiving that fateful message from the judge’s clerk, “The jury has reached a verdict.”
Plaintiff in this case was injured while visiting defendants’ premises. His injuries included broken bones, substantial abrasions and bruising over a large part of his body. He also alleged permanent pain, both physical and emotional. The first line of defense was that plaintiff’s injuries were the result of his own negligence; in other words, bad decisions on his part. Later, this first defense became secondary to a new defense, that being the plaintiff’s credibility.
As the case developed through written discovery, plaintiff’s deposition, production of records, and testimony from disinterested witnesses, the defense was presented with many opportunities to argue that plaintiff was not being candid. And this accusation was repeated enough times to send a message to the jury that the plaintiff’s testimony could not be trusted. Credibility then became the first line of defense. And with this lack of credibility, the evidence of plaintiff’s unreasonably poor decision making became virtually irrefutable, at least by the plaintiff or his attorney.
The case was tried to verdict and while it was not a “defense verdict” in the classic sense, the verdict was a smashing win for the defense and an equally smashing loss for the plaintiff. This result was not expected by the plaintiff or his attorney. It was, we are told, expected by the defense. So the question presented for purposes of mediation is how could two parties, both with competent, experienced, trial tested attorneys see the case so differently?
My articles on mediation have repeatedly centered on the idea that we have to be willing to consider the possibility that what we believe is wrong, or if not “wrong” at least not what a jury will conclude is right. It is not a new idea from this author to suggest that this starts with the requirement that we evaluate our case, as best we can, through the eyes of our opponent.
Mediation theory includes discussions on how participants can work together toward a resolution to find commonality upon which to build a resolution. One such discussion analogizes to solving a jigsaw puzzle. You can give each participant the same puzzle and see how they find commonality in the solution. The puzzle pieces are the same and do not change. There is one solution. The difference between that example and trial is that a trial has many puzzle pieces that are reshaped in the jury room, unbeknownst to the litigants. You cannot always predict how those pieces will be shaped and, therefore, you cannot always predict the outcome.
This reshaping was observed in this recent jury trial. The jury heard all the evidence, worked to reshape the puzzle pieces into a slightly different narrative than either side advocated and came to their own conclusion. As stated above, that conclusion was a verdict that so strongly supported the defense that it was, essentially, a vindication of the defense’s position, but it was not the same as the defendants’ position. It certainly wasn’t the plaintiff’s position. And it is an excellent example of what happens when you turn your case over to a jury rather than exercising the control you have at mediation.
Plaintiff’s special damages were between $100,000 and $200,000, nothing more. Any remaining damages were general pain and suffering. A jury’s assessment of pain and suffering requires a huge dose of plaintiff’s credibility because it is based almost entirely on how plaintiff displays himself to a jury and other witnesses who will testify on his behalf. If his credibility is not solid, neither is his ability to ask a jury for such an award.
At mediation, plaintiff and his attorney never considered settlement for less than the defendants’ policy limit of $1,000,000. The defense evaluated the outside risk at much less than that amount. The mediator was dumbfounded by plaintiff’s position. The case was also reviewed by the defendants’ personal counsel who agreed that the case did not have a potential for exceeding the policy limit. Nonetheless, plaintiff was stalwart in his demand and went to trial asking the jury for an award greater than $4,000,000. As predicted, plaintiff’s credibility was brought into question and the jury found it wanting. In the end, the jury awarded special and general damages of $114,000. Obviously, the jury did not give much for general damages despite plaintiff’s claims of permanent injury. After accounting for plaintiff’s substantial comparative fault, the net verdict was $25,000. As discussed above, what kept plaintiff and/or his attorney from considering the possibility they were wrong? What kept them from even discussing the possibility that a jury might rearrange the puzzle pieces?
It must be assumed that plaintiff was unwilling to consider the possibility a jury would disagree with his narrative, despite the fact that the plaintiff opened himself up to impeachment in several different parts of his testimony. Plaintiff’s credibility would become the link that disconnected the jury from his narrative and connected the jury to defendants’ narrative. Credibility became the linchpin for defendants’ success.
In mediation, it is imperative that you assess not only the credibility of the opposing party but also your client’s credibility. Take great care to look at your client’s credibility through the lens of your opponent. How will your opponent march your client through his or her credibility transgressions? How many times will your client be accused of not being honest, in fact transparent, with his or her sworn statements? If it is only once, it may be forgiven by a jury. But more than once it is less likely jurors see a case through your client’s eyes, through your eyes. If your client can be impeached multiple times, even on insignificant statements, the sheer volume of self-contradiction may be sufficient to take on a life of its own. It was reported in this recent case that in closing arguments, the plaintiff’s attorney responded to these impeached statements with “so what?” apparently to suggest that they did not impact the ultimate issues. But their sheer volume rendered “so what?” unhelpful. The jury was ready to rearrange the puzzle pieces.
By Eric Gillett
In litigation, nothing is more important that maintaining credibility. If your client suffers from a shortage, be very careful how you proceed and take that extra step to keep control of the result while you still can. Work with your client to help them understand how their case is at risk. Explain to your client how the other side will use these transgressions, however minor on their own, to change the tide and convince a jury that your client is not deserving of their credulity. Use your mediator to provide your client with his or her impartial view of this risk. Put the puzzle together while you still control the shape of the pieces.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at eric@gillettmediation.com While in person mediations can be arranged with all participants fully vaccinated, Zoom mediations are also available and encouraged.
