Florida mediators Brandon S. Peters and A. Michelle Jernigan, along with trial consultant Betty Dunkum, take on the topics of mock trials, focus groups, private trials and early neutral evaluation for this complimentary-CLE Webinar delivered on Oct. 23, 2014.

1. Upchurch Watson White & Max
Mediation Group
and the University of Florida
Levin College of Law
Institute for Dispute Resolution
are proud to cosponsor today’s Webinar:
Getting the Deal Done:
Using Mock Trials, Focus Groups, Private Trials
and Early Neutral Evaluation to Settle Cases

2. Our guest,
Betty Dunkum
President,
Victory Trial
Consulting
bld@
victorytrial.com
victorytrial.com
Our presenters
Brandon S.
Peters
Mediation Counsel
Upchurch Watson
White & Max
bpeters@
uww-adr.com
uww-adr.com
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A. Michelle
Jernigan
Shareholder
Upchurch Watson
White & Max
mjernigan@
uww-adr.com
uww-adr.com

3. Getting the Deal Done
Using Mock Trials, Focus Groups,
Private Trials and Early Neutral
Evaluation to Settle Cases

4. Importance of accurate case evaluation
• BATNA – Best Alternative To a Negotiated Agreement is a
jury trial, bench trial or arbitration
• So you can make an intelligent decision about whether to
settle or try the case
Getting the Deal Done
©UWWM
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5. Importance of accurate case evaluation
• Risk Analysis
▫ Likelihood of success
▫ Range of Potential Damages
• Litigation Costs
• Risk Aversion
• Consequential effects
Getting the Deal Done
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6. Jury verdict reporter
• Pros
• Cons
Getting the Deal Done
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7. Getting the Deal Done
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Trial Settlement
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8. Different types of jury research
Getting the Deal Done
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9. Private mock trials
• A typical day-long simulation involves opening and closing
presentations for all parties with full explanation of summary
testimony, exhibits, video depositions, and rebuttal
• At least 20 jurors
▫ Provides better estimates of the size of verdict and likelihood of
an outcome and a more comprehensive understanding of the
themes that emerge during jury deliberations
▫ Can develop jury selection criteria
• Can incorporate witness evaluation
▫ Witness evaluated by jurors on a 20-point scale
• Usually done after substantial discovery
Getting the Deal Done
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10. Getting the Deal Done
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Example of jury selection criteria
• In a mock trial of a traumatic brain injury case,
all of the jurors who were very familiar with
traumatic brain injury (as opposed to those who
were not familiar or only somewhat familiar)
gave above-median verdicts.
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11. Getting the Deal Done
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Focus groups
• Normally, focus groups are used as an exploratory tool
early in litigation to determine the key issues in the
conflict and, thereby, inform discovery and early
settlement negotiations
• The predictive value of a focus group can be skewed
because of the smaller sample size (usually 8-10 jurors)
and the fact that one dominant personality can
sometimes overtake jury deliberations
• Too small for jury selection criteria
• Presentation by a neutral
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12. Getting the Deal Done
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Court-sponsored summary jury trials
• Typically, a one-day presentation done at the
courthouse before a judge and 1-2 panels of
jurors.
• One side may hide key evidence/exhibits they
don’t want to disclose before trial.
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13. Joint mock trials
• Similar to private mock trial, except all sides
present their case.
• Privately recruited jury.
Getting the Deal Done
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14. Private trials
• Often done as part of a settlement agreement.
▫ Settlement agreement may contain a high-low
with amount to be determined by the private trial.
• Use a retired judge and a jury recruited from the
community.
• Summary presentation of testimony and
evidence over 1-2 weeks.
▫ Helpful if one side does not want the evidence
publicized.
Getting the Deal Done
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15. Getting the Deal Done
Early neutral evaluation
• Outside Florida
• Florida
• Judicial Immunity
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16. • To predict the outcome for trial purposes
• To establish a negotiation range for mediation purposes
• To test case themes
• Legal arguments versus compelling story
• Jurors often latch on to seemingly insignificant issues
• Help jurors understand complex issues
• To evaluate witnesses and exhibits
Getting the Deal Done
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17. Getting the Deal Done
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How can I trust jury research?
• Jury panel mimics population in terms of age, race,
gender and political orientation.
• Extensive screening excludes people who are ineligible
jurors or who have familiarity with the case, parties or
witnesses.
• Recruiting is done via two methods (depending on
client’s budget):
▫ Random-digit dialing (outbound recruiting; more
expensive)
▫ Responses to ads placed in the community (inbound
recruiting; less expensive)
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18. Getting the Deal Done
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Using jury research to …
• Help mediate multi-defendant
cases
▫ Who is liable?
▫ Share of proportionate
fault
▫ Amount of damages
• Persuade a “difficult”
client, adjuster or
attorney
▫ Define "difficult
people"
▫ Hostage Takers
▫ FBI's Behavioral
Change Stairway Model
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19. Behavioral Change Stairway
Active
Listening
Empathy
Rapport
Influence
Behavioral
Change
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Time
Source: FBI Crisis Negotiation Unit

20. • Prior to filing the case
• Early in discovery
• Before/after mediation
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21. Getting the Deal Done
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Options:
• Say nothing
• Disclose overall results
• Video presentation of jurors discussing verdict and rationale
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22. Getting the Deal Done
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23. • Number of jurors
• Method of jury recruiting
• Location of research
• Length of case presentations
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can each be adjusted to fit budgets.
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24. • Factual issues
• Legal issues
• Big dollars
• Difficult personalities
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25. Getting the Deal Done
Two ways to follow up
• Working with a mediator after
mediation
▫ By phone, attorneys only or
with parties
▫ In person
▫ When
 Discovery closed
 Before summary judgment
motions
 After summary judgment
motions
©UWWM
• Conducting jury research after
mediation – retesting case
▫ Use what you learn about
your case
▫ See how case changes if you
settle with one or more of the
defendants/plaintiffs
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26. O.O.D.A
Loop
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27. Observe. Orient. Decide. Act.
Observations
Cultural
Traditions
Analyses &
Synthesis
Previous
Experience
New
Genetic
Heritage
Information
Feed
forward
Feed
forward
Decision Feed Action
forward
Unfolding
circumstances
Implicit
Guidance
& Control
Outside
Information
Implicit Guidance
& Control
Feedback
Feedback
Unfolding Interaction with Environment
Getting the Deal Done
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28. Thanks to our guest contributor
Betty L. Dunkum, Esq.
President
Phone: (561) 793-3703
E-mail: bld@victorytrial.com
www.victorytrial.com
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29. “Getting the
Deal Done”
Florida Bar
Course #
1406735N
CLE Credits
General: 1.5
Please contact Brandon or
Michelle at bpeters@uww-adr.
com or mjernigan@uww-adr.
com with questions or
comments regarding content.
Please email cklasne@uww-adr.comwith questions about course number, Webinar
recording, etc.
Upchurch Watson White & Max Mediation Group
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