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AMY LIEBERMAN | Mediation Post-Trial Mediation
Why would a plainti who just won a huge 7- gure verdict want to mediate post trial? A er all, she won big, and even a er attorney’s fees, the net amount is life- changing money.
Sometimes, less really is more. Less – meaning a modest victory -- is one that a defendant is going to be more likely to accept and pay. More – the big win – is one that a defendant will ght to eliminate.
e ght comes in the form of post- trial Motions for New Trial, Motions for Remittitur, and threats of appeals. e cost to le briefs is relatively nominal compared to the judgment. Post-trial brie ng prevents the defen- dant from having to pay the judgment and delays the day of reckoning. If a Motion for New Trial is successful, the next time around there will be a di erent jury. e entire win could disappear next time around.
If there are appeals, the reality is that the delay could go on for years. And, the verdict could be overturned.
Collection of a large verdict can also be an issue: e ght can come in the form of a threat of ling bankruptcy.
WHY MEDIATE THE WIN?
Because the “Win” Could Turn into a Loss.
You fought the good ght, and you won. But hanging onto that victory is a di erent question. You are only done if the defendant is willing to ac- cept the judgment and pay it. If not, even though you may have waited years to get to trial, it’s possible that two, three even ve years later you will still be waiting. In other words, in a huge case, the “win” can be just a step in the process.
For the plainti ’s lawyer who worked the case on a contingency
basis, settlement allows that lawyer to be paid for his or her hard work. e motion for new trial and or the appeal means that any payment is further delayed, potentially for years, and may not ever come if the verdict is overturned.
Of course, the challenge to post- trial settlement discussions is that the plainti with the big verdict has been validated. Parties and counsel are no longer talking about what might hap- pen – it’s happened, a jury of 8 or more people believed in the plainti , and that is a hard thing to give up. It will likely be di cult to persuade the prevailing party that a new jury would come to a di erent conclusion.
e mediator can help point out the reality that a “win” at trial is based not only on how the witnesses presented, but also on how the evidence came in or was precluded, and what legal arguments were precluded, and what jury instructions were given.
Whereas pre-trial mediations dis- cussions are focused on the facts, and whether they will likely support the claims asserted, post-trial mediation discussions are focused on the legal issues – more speci cally, legal errors made in the course of the trial. is is an entirely di erent focus.
Consider these arguments, which were only some of those made in a recent case I mediated, asserted in a Motion for Judgment as a Matter of Law or Alternative Motion for New Trial:
• e evidence supported only one reasonable conclusion and the ju- ry’s verdict was contrary to it;
• e verdict was against the clear weight of the evidence;
• e Court committed “plain error” in failing to strike a juror;
• e Court committed “plain error” in failing to give a jury instruction;
• e damages were excessive and should be remitted;
• e damages were duplicative;
• e damages were punitive, and punitive damages were not allowed
in this case;
• e plainti should not have been
allowed to assert a “private right of action” based on one of her statu- tory claims;
• Counsel made unfairly prejudicial statements in closing argument.
In addition to the above, defense
counsel was prepared to attack the reasonableness of plainti ’s counsel’s attorney’s fees and willing to take a di erent legal issue to the Court of Appeals as there was a recognized split of authority on that issue.
e trial lawyers have done their best. Post-trial, it is up to the judge, and the appellate lawyer, who may not be the same as the trial lawyer. It’s a whole new ball game.
Certainty Brings Peace and Allows you to get O the Roller-Coaster.
A trial is an emotionally drain- ing and time-consuming process. It takes a while for the adrenaline from the victory to subside. Once it does, though, if that success is at serious risk of being lost, there is value in the certainty of payment and in get- ting paid sooner rather than later. e plainti and her counsel will always have the positive feelings that come from going all the
way through the
process and com-
ing out with a win,
even if that win is
compromised in
the end.
Amy L. Lieberman is a full-time professional mediator of employment and business con ict. She has repeatedly been listed in the Best Lawyers in America, Southwest Super Lawyers, and Arizona’s Finest Lawyers in Alternative Dispute Resolution, and is the author of the book, “Mediation Success: Get It Out, Get It Over, Get Back to Busi- ness.” For more information, visit www.insightmediation.com or call Amy at (480) 248-3366.
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