David B. Haber, left, of Haber Law and Thomas E. Ice, right, of Ice Legal. Courtesy photos

If a mock trial and a private mediation session had a baby, it would be a summary jury trial. These nonbinding trials feature real juries, help decide real cases, and are popping up in South Florida courtrooms at the behest of judges hoping to expedite proceedings.

But how helpful are they?

Thomas E. Ice of Ice Legal in Lake Worth recalled being “dragged kicking and screaming” into one and now represents juror Venus Claman, who’s petitioned the court over claims West Palm Beach Circuit Judge Edward L. Artau misled her into thinking a trial was real.

According to Ice, the jurors in his case didn’t realize the trial wasn’t binding and that they didn’t have to participate.

“The jurors are being hijacked,” he said. “The judge actively deceives the jurors by letting them believe that they’re in a real trial.”

But David B. Haber of Haber Law had a radically different experience, one that illuminated his case and brought both parties closer to resolution. Haber swears by summary jury trials and encourages anyone with a complex case to give them a shot.

If the term “summary jury trial” isn’t ringing any bells, that’s no shocker, according to Ice. When Artau mandated one in his case, both parties were flummoxed.

“Everyone looked at each other and said, ‘Huh? What’s that?’ ” Ice said.

What happens in a summary jury trial?

Attorneys present evidence to the jury using pictures, charts and graphs, but there’s no live testimony, just summarized statements read aloud. As many as two or three separate juries deliberate and return with verdicts.

And then the floor opens for questions — this time by attorneys seeking feedback from jurors. Attorneys from either side can ask about what worked, what didn’t and why.

“It was a question-and-answer session,” Haber recalled. “We as the plaintiffs got to ask questions as to what they found most important, and the defense got to ask, ‘Would this have changed your mind?’ ”

Both parties then have a settlement conference to see where they stand, and voila, maybe there’s a resolution based on what each side believes a jury might find during a trial. This time, the results would be binding.

Origins

 

Jury in the courtroom. Photo: sirtravelalot/Shutterstock.com

The summary jury trial first emerged in the 1980s, borne out of U.S. District Judge Thomas Lambros’ desire to resolve a seemingly never-ending personal injury case in the Northern District of Ohio. Neither party would agree to settle, but the judge thought they might, if they saw how a jury would rule.

Summary jury trials soon became controversial, as federal courts questioned whether judges were authorized to mandate them, and they fizzled out. But the seed of the idea remains in some Florida courtrooms.

At its best, these proceedings could turn two-week trials into dayslong affairs, saving time, money and aggravation.

That’s precisely how it went for Haber, who represented the plaintiff in a complex construction case with 40 defendants before former West Palm Beach Circuit Judge Jack S. Cox.

“The settlement negotiations hit a fever pitch after the mock trial, because at that point the defendants saw the writing on the wall,” Haber said. “It gave everybody extra information.”

But that’s not always how it goes.

At their worst, according to Ice, summary jury trials can be bad for clients, bad for jurors and bad for a case, particularly when mediation comes on the heels of a trial against parties “still stinging” from jurors rejecting their argument.

 

‘The case would be over’

Photo: Amanda Bronstad/ALM.

Ice represents defendant Susan A. Thompson, accused of misrepresenting the value of her house to a real estate company in a West Palm Beach lawsuit brought by the buyers, Carolyn and Richard Roehm. His client emerged victorious from the summary jury trial, owing no damages.

“Had we won a real trial, the case would be over,” Ice said. “Instead, our client paid for a process that was nearly as expensive as a real trial and is no closer to actual resolution.”

Ice objected to the summary jury trial before it began, but said Artau insisted. In Ice’s mind, the case was never going to settle, so a fake trial was an unnecessary expense for his client.

“This particular case cries out, ‘Get it to a jury, get a decision, get it done with,’ because the parties are not going to agree on anything,” Ice said.

According to Ice, jury member Claman happened to work in a law office and was confused after sitting through a trial with no cross-examination, two juries and a Q&A session.

“Once I explained to her what happened she was very upset,” Ice said. “These are people who thought they were jurors but they were not.”

Claman joined Thompson in a petition for writ of prohibition, which argued that Artau didn’t have the authority to force the parties into a summary jury trial. According to the writ, Claman believed she was deciding “a case of real consequence” and was aggrieved to learn otherwise.

When the writ reached the Fourth District Court of Appeal, Artau reversed his order mandating the summary jury trial and mediation. It’s a move Ice alleged was done to make his writ moot, avoiding a reversal by the Fourth DCA, which Monday dismissed the writ.

“It is disappointing that they didn’t take the opportunity to clarify the scope of the judge’s powers in this regard and put parameters in place that would guide judges in the future and prevent the further hijacking of jurors for a private process,” Ice said.

 

‘It forces you to streamline’

Haber’s case went the opposite way. Jurors were well aware the trial wasn’t binding, and their time was saved, not wasted.

“You’re disrupting the private lives of citizens,” Haber said. “If you can interrupt it for two days instead of 45 days, that’s better for them and it’s better for the judicial system.”

Credit: Rrraum/Shutterstock.com

His client won three verdicts — $35 million, $35.5 million and $17.5 million — and unlike in a real trial, Haber could ask the jurors about their decision. He learned that middle-aged homeowners were likely to award more money in a construction defect case, compared with recent college grads.

“It forces you to streamline your case and really focus on what’s the most important part of your case,” Haber said. “By virtue of having to do it in about three and a half hours each, you can’t go through your whole trial. You have to pick the most important pieces.”

The trial was also useful for the defendants’ insurance carriers, many of whom sent adjusters to the courtroom to observe.

The case still went to trial, but settled on the third day of jury selection, something Haber attributes to the summary jury trial.

“It brought the parties close together, so that by the time we started trial we were not eons apart,” Haber said. “Think about how much time and public money we saved by not having an eight-week jury trial.”