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A playwright writes and rewrites a script many times, working to achieve an intriguing plot, good character development, and dramatic tension. Yet even with many drafts, a play never goes straight to opening night on Broadway. Usually there are workshop readings and walkthroughs followed by openings in small venues. At each, the story is tested and audience reaction assessed. Playwrights are fortunate — they can control the characters and the entire story. As litigation counsel, you only get half the story over which you have only modest control. Other than talking to co-counsel, what are your options for testing ideas and getting some feedback? They are numerous and vary in complexity and cost. You can decide which one to use based on the magnitude of the case, the cooperation of the other party, and the status of the litigation process. Options include: early neutral evaluation, mini-trials and summary jury trials. Each of these offer differing types of opportunities to hear more objective, disinterested feedback about the strengths, weakness and merits of various aspects of the dispute. Such feedback is particularly useful where the parties are locked in positional bargaining, or there are serious differences over the settlement value or legal merits in a dispute. Outside of some court contexts, the options are voluntary, confidential, and unless agreed otherwise non-binding. In early neutral evaluation, an objective person with expertise in the core areas of disagreement (e.g., case value, law, technical matter) is selected. The person may simply read submitted materials or may hear brief presentations and arguments by counsel and sometimes the parties. The evaluator then offers their opinion about the settlement of the matter and the most likely outcome if the matter were to proceed to trial. This aids the parties in reassessing their conclusions and assumptions and encourages them to consider alternatives to a negotiated agreement. Neutral evaluation as well as the other processes described below then offers the parties more information for continuation of direct negotiations. The mini-trial process works well where the parties recognize they have serious differences but wish to find a means of testing ideas and reactions in a way that will help them resolve differences before expending significant sums at trial. The audience for the trial is the client decision makers with settlement authority for the parties. A neutral with expertise in the subject matter presides in the role of “judge.” Counsel, sometimes with assistance of experts, make presentations of their case most favorable to the clients and neutral. Usually there is limited question and rebuttal about various aspects. At the close of presentations, the neutral may opine about the strengths and weaknesses of what has been presented. Presentations may last from several hours to several days. The clients reflect on what they have heard and attempt to negotiate a settlement either directly or with the assistance of the neutral. The summary jury trial is often sponsored by a court but may be conducted privately. In this process, a jury of six hears brief presentations by counsel and limited introduction of evidence. Usually no witnesses are called. The presentations generally last a half day, and clients with settlement authority attend. The judge (or private judge if it is not court sponsored) delivers a short jury charge on the controlling law and the jury deliberates for several hours. Unless agreed otherwise, the verdict is non-binding. If the verdict is not unanimous, jurors are polled for individual opinions. Like the opinions in neutral evaluation and mini-trials, the jury’s verdict is a tool to stimulate settlement discussions. Like the playwright, you have opportunities to shape and test your stories, but your goal is different. The playwright wants to go to the big show. You presumably don’t (but if you do, you will be much more informed about what works and what doesn’t). These methods can achieve earlier resolutions. For clients desperate for their “hearing,” they also provide a useful, and safe, tool for clients to have a semi-formal, low-risk and lower cost process than a day in court. William DeVane Logue, J.D., is a mediator and consultant based in West Hartford.

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