Using a “Legal Focus Group” to Break Deadlocks

The Summary Jury Trial: Using a “Legal Focus Group” to Break Deadlocks

Every trial lawyer has felt the “pre-verdict anxiety”—the uncertainty of how six or eight strangers will perceive a complex set of facts. When the “gap” between the parties’ settlement positions is rooted in a disagreement over how a jury will react, the Summary Jury Trial (SJT) is the ultimate reality check.

An SJT is essentially a legal “focus group.” It resembles a civil trial, but the jury’s decision is non-binding. It is a powerful educational process that provides the parties with a data-driven indication of what might happen if the case proceeds to a full trial.

How the “Practice Trial” Works

In an SJT, a judge presides over a mock jury. Lawyers present oral arguments and tangible evidence, but there is rarely live witness testimony or cross-examination. The jury deliberates and announces a decision.

The real value, however, occurs after the decision. The parties are permitted to question the jurors about their reasoning. Hearing a juror say, “We didn’t believe your expert,” or “We found the damages calculation confusing,” is often the exact “cold shower” a recalcitrant client needs to enter into serious settlement negotiations.

When to Invest in the Mock Run

An SJT is expensive. It requires almost all the pre-trial preparation of a real trial. Therefore, it is generally contra-indicated for small-value claims. However, it is an invaluable tool when the primary dispute is over damages rather than witness credibility. It provides a “safe” environment to test your themes and see which ones resonate.

Actionable Takeaway: Maximizing the SJT

• Test Your Narrative: Use the SJT to see if your “story of the case” actually makes sense to a layperson.
• The Juror Debrief: Prepare a list of specific questions for the jurors. Their feedback on your evidence is more valuable than the verdict itself.
• Use the “Cold Shower”: If the mock jury comes back with a number far lower (or higher) than your client expects, use that data to recalibrate your negotiation strategy immediately.

Don’t leave your client’s fate to a “real” jury without a practice run. I help litigators design and facilitate these complex evaluative processes to ensure you enter negotiations with the best data possible. Let’s discuss how an SJT could break your next deadlock.

This blog is adapted from my unpublished manuscript on Alternative Dispute Resolution (ADR).

About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA, past president of The Mediation Society. and Instructor (International Mediation Institute Coach and Assessor) at UC Law San Francisco.

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