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Several years ago, an accomplished mediator told me the following story. He was mediating a complicated case between two rival companies that had been dragging on for years. The defendant faced significant exposure. Although he pleaded with the attorneys on both sides to share their briefs in advance of the mediation, each side stubbornly refused. Undeterred, he figured he could persuade the attorneys to give him permission to share the portions of their brief that best encapsulated their cases. The plaintiff agreed, provided the exchange would be mutual. The defendant refused on the grounds that they were concerned about “showing their hand” to the other side. Suffice it to say, the case did not settle. A year later it went to trial and the jury hit the defendant with an outsized damages award. The defendant’s General Counsel later told the mediator that the jury did not find his company’s theory of the case credible.  In response, the mediator told the GC that had the company taken his advice at mediation, they would have either discovered the flaws in their story and adapted their case before trial, or settled for much less than what the jury awarded. The key takeaway: it is foolish and irresponsible to save your litigation story for trial.

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