By Scott J. Silverman
I witnessed it. Truly.
I saw an attorney win his case in a mediation against the opposing side in a highly contested dispute primarily on the strength, style, and presentation of his opening statement. It can be done, and here are some tips to help guide you towards that goal:
1. Do Not Waive your Mediation Opening Statement
A trend is developing on the west coast of the U.S. to waive mediation opening statements and go directly into caucus. In my opinion, this is a mistake.
An opening statement gives you the rare opportunity to speak directly to the other party and present your position without the filter of the other attorney or the mediator. Further, it gives you the chance to present your case in the best light possible, demonstrate that you are a worthy adversary who would likely have great sway before a judge and/or jury, and sow doubts in the mind of the opposing party.
In most cases, these enormous benefits should significantly outweigh any fleeting thoughts of waiver.
2. Be Conciliatory
If I kicked you in the shin and poked you in the eye, and then a minute later I asked you for your help, would you give it to me? Probably not.
Always remember, you are in a mediation to try to settle your dispute. There is nothing wrong with presenting your position with vigor and emphasizing its strength, but be careful how you address an opponent's position. You can disagree with an opposing side, but you should be careful to do so without denigrating the party or their position.
It is generally effective to acknowledge the other sides "strengths" and then explain them away with law or evidence. No one likes to be told they are categorically "wrong" or that a "judge or jury will never accept" their position. Most attorneys who frequently try cases are aware they are only handicapping cases before they are adjudicated. Lawyers, no matter how perceptive they may be, are not clairvoyant.
In my experience, lawyers lose credibility with the opposing side when they inject categorical statements about judges and juries. Doing so demonstrates a lack of trial experience and suggests hubris.
3. Direct your Comments to the Opposing Party Not the Lawyer
How frequently has an opposing attorney convinced you that your case is a loser and that your client should just throw in the proverbial towel? Probably not very often, if ever.
When making an opening statement during a mediation, your primary audience should be the party and not the party's lawyer. The odds of you convincing the other lawyer (who has likely been telling the client for over the past three years that their case is highly prosecutable/defensible) that your side will prevail and they will lose is probably slim to none.
You may not convince the opposing lawyer, but you may cause their client to question their own case. It is common for clients to hear things from the opposing attorney on opening statement that they've never heard or even considered before.
During the opening statement, you should focus on trying to create a rapport with the opposing client thereby effectively "by-passing" their lawyer's filter. The mediation is the only opportunity to do this. Creating doubt in the other party's case should enhance their flexibility.
4. Show your Hand
In Miami-Dade County, roughly 1 in 400 civil cases ever impanel a jury. With those odds, it is highly unlikely that a jury will ever decide any singular case. You are more likely to be lumped in with the 399 cases rather then the case that goes to trial.
During mediations, it is common for lawyers to refrain from presenting all of the harmful evidence against the opposing side. They usually want to retain a trump card or ace up their sleeve for later use.
Since your case is likely never to see the eyes of six jurors, a lawyer should strongly consider presenting all the evidence during the opening statement. After all, if it is so "damning," one would expect the opposing side to capitulate at once. If so, why hold back? In my experience, the evidence is usually not as devastating as the holder of the information actually thinks.
5. Prepare an Effective PowerPoint Presentation
Nothing captures the attention of a group more than a video presentation. Who doesn't like to sit in a darkened room and watch a movie? However, there are good presentations and not so good presentations.
An ineffective presentation is one with bullet points and words – maybe some are in bold or capitalized – and nothing more. Why even bother?
A good presentation seizes the attention of the opposing side and simultaneously serves as a preview of your case before a jury.
A presentation designed to achieve a beneficial settlement will likely contain elements, which effectively condenses the case and highlights the best evidence and strongest impeachment. This is how the attorney referenced in the preamble to this article won his case.
The attorney incorporated portions of a defendant corporate officer's videotaped deposition, which was juxtaposed against the videotaped depositions of corporate employees saying the exact opposite. The attorney simultaneously ran a closed captioned transcript on the bottom of the video. Towards the end of the presentation, he put the conflicting statements (in writing) next to one another.
PowerPoint presentations take time to prepare (and in some cases money), but they can make a difference.
6. Present Helpful Jury Instructions
If I hear an attorney cite the case of Smith v. Jones, one more time during a mediation, I don't know what I will do. Smith v. Jones, of course, is a generic case citation. Feel free to plug in any case name.
Case citations matter most when a court is deciding a pending motion for summary judgment. They don't mean quite as much as when a judge is preparing jury instructions.
Let's start with the premise that 99% of the time a judge will give a a standard instruction to a jury rather than a special instruction, so long as the standard covers the cause of action/defense raised. Why? Trial judges are rarely reversed when standard instructions, approved by the Florida Supreme court, are given. Special instructions create another issue on appeal (assuming an objection or fundamental error).
If you peruse the standard instructions, before the mediation, be prepared to present them to the opposition (and possibly incorporate them into the PowerPoint presentation). Present your opening and use the instruction as a checklist to show why you have a prima facie claim or defense.
This can be effective, especially if one party is hanging on to Smith v. Jones, as their savior case.
7. Be Mindful of Time
Today, everyone's attention span seems to be abbreviated. I recently read that between 1930 and 1960 most film scenes averaged 2 to 4 minutes. Today, they average about a minute.
Be mindful of your audience. If you are a strong presenter with a modulating voice and who likes to walk about the room while changing PowerPoint slides containing lots of video and documents, have at it. However, if you are not, hit your high points and move on.
Once people tire of you, you've lost their attention. They'll give you the courtesy of looking up at you every now and then from their cell phones , but they won't absorb your words. Once that happens, you might as well be in a room by yourself practicing your speech.
Always remember, the mediation opening statement about convincing the opposing party that you have the better case. You can only achieve that goal if they listen to you. Use your time wisely and efficiently.