"B" is for BATNA: At the End of the Day, It's All About a Jury Trial
(above, art imitating the truth -- Billy Flynn: Would you please tell the audience... err... the jury what happened? -- Razzle Dazzle from Chicago)
Why are we back to the "B's" and more particularly, why are we back to BATNA?
Because I've been mediating more "pure money" cases lately and recalling for my litigants the central fact of settlement life.
IF YOU'RE NEGOTIATING THE SETTLEMENT OF A LAWSUIT, YOUR "BETTER ALTERNATIVE TO A NEGOTIATED AGREEMENT IS A JURY VERDICT." PERIOD. END OF STORY.
This is why we're so happy to have found a new legal blog called Deliberations, which is all about the psychology of jurors; what they like; who they'll hate; what their predilictions and pre-dispositions are and how you and your clients might be able to influence them to decide the case in your favor.
As the Jury Research people teach us (here, by the way are two of the best jury consultants in Southern California, if not the nation, Chris St. Hilaire of M4 Strategies and Tom Bernthal of Jury Insight -- see the recent $15 million verdict largely credited to Bernthal's efforts) the jury is not comprised of your law school class, your university friends or even your high school classmates.
Who is it composed of and how do they think? That's the problem. You and I -- no matter how down to earth we believe ourselves to be -- have NO IDEA.
This week, however, Deliberations helps us out by telling us just how many jurors will likely be struggling with alcoholism and drug addiction in their families when we voir dire them and by pointing us to this great NPR (must read) quiz on the American Jury System.
The author of Deliberations, Anne Reed, a trial lawyer and jury consultant at Reinhard, Boerner & Deuren in Milwaukee, recently suggested to me that trial lawyers, jury consultants and mediators "might have something in common."
Oh yes. YOU -- trial lawyer, jury consultant, jury -- are the other side of my equation.
YOU ARE MY DISPUTANTS' BATNA.
