Settlement Trials:

Because Justice Delayed is Justice Denied

 

First Court began using private juries to settle disputes in Fargo back in 1992. We built a courtroom in Houston for private trials in 1995. We have now organized a fair cross-section of "regular folks" to help our clients evaluate high-stakes litigation in 45 states. 

Our emphasis in the last six years has been on harnessing technology to drive down the cost of this invaluable and objective feedback. If you are a waiting for a trial date on a crowded docket anywhere in the United States, we are pleased to offer you these three trial options:

 

Trial Option 1: Self-Paced Trial

Details: Each side organizes their video testimony, exhibits, summaries and video closings in a one-hour Power Point. After objections are resolved (see below) First Court adds feedback and verdict questions. We load the presentations onto a secure website. We then recruit and pay 12 jurors from the trial venue to go online during a three-day trial window, and consider the presentations of both sides. The jurors provide us with 12 individual verdicts, including detailed explanations of those verdicts. The parties use all this independent feedback to see the case more objectively, and to reach a fair settlement. Cost: $5,000/party.

 

Trial Option 2: Live Deliberation

Details: Each side has one hour in an online forum to present their evidence however they think best. Again, Power Point works well.  Each side videotapes 30 minute closings, and Plaintiffs record a ten-minute Rebuttal. After objections are resolved (see below), First Court recruits and pays 12 jurors from the trial venue to join us online for a live four-hour trial. The jurors consider the exhibits and arguments of both sides. They also provide us with 12 individual verdicts. We then ask three jurors chosen by the plaintiff and three jurors chosen by the defense to come into a videoconferencing center the next day, to deliberate face-to- face in the same room. Our clients watch the deliberations in real time, and use the feedback, deliberations and verdicts as the basis for a fair settlement. Cost: $10,000/party.

 

Trial Option 3: Private Jury Trial

Details: We recruit 18 jurors, a fair cross-section of the trial venue, and bring them together in a local conference facility. Each side gets half an hour for voir dire. The plaintiff has three hours to make arguments and present testimony; the defense has two hours. After closing arguments we divide the 18 jurors into three groups of six, and put them into separate rooms where they deliberate for up to two hours. Our clients watch the deliberations in real time, and use the feedback, deliberations and verdicts as the basis for a fair settlement. Cost: $25,000/party.

 

Resolving Objections

You may hire any of the following highly respected professionals to resolve evidentiary objections or to preside at any of our private trials. They are each billed at $400/hour + actual costs incurred for travel. The fees and costs for all evidentiary rulings are paid by the losing party.

Alternatively, the parties are free to agree on another person or persons to resolve their differences.

 

About Karen Klein:

Karen Klein is the owner of Karen Klein Mediation, LLC, mediating business disputes, personal injury claims, employment/labor disputes and other civil claims. She also serves as an arbitrator and special master in complex disputes. From January 1985 until January 2015 she served as U.S. Magistrate Judge in North Dakota. During her judicial tenure she served on committees of the U.S. Judicial Conference and on the Board of the Federal Judicial Center. She continues to serve as a faculty member for judicial education programs for the Federal Judicial Center and has also served as an international consultant for reform efforts involving mediation and judicial ethics in over a dozen countries in the Middle East, Asia, and Eastern Europe. Judge Klein is a past president of the Federal Magistrate Judges Association and received its Founders Award in 2014 in recognition of her contributions to the federal magistrate judges system. She is a member of the National Academy of Distinguished Neutrals.

About Mary Maring:

Mary Muehlen Maring is a former ND Supreme Court Justice currently serving as Surrogate Judge. She practiced law in ND and MN for 20 years; was certified a Civil Trial Specialist; and is a member of the International Society of Barristers. She held leadership positions in ND & MN bar associations, serving on numerous committees to study and improve the justice system. In 1996, she was appointed by Governor Schafer to the Court, was elected in November 1996 to complete that term, and was twice elected to ten-year terms. She chaired JudicialConference, Gender Fairness Implementation Comm., Juvenile Drug Court Comms., Joint Procedure Comm., Judicial Education Common, Juvenile Drug Court Advisory Comm., and was a member of the Juvenile Policy Board. She currently serves on the Alternatives to Incarceration Interim Legislative Comm. In 2014, she received the Richard S. Arnold Award for Distinguished Service by the 8th Circuit Court of Appeals. She is a qualified neutral and owner of Maring Mediation.

About Steve Storslee:

Steve Storslee is a 1976 graduate of the University of North Dakota Law School. He is licensed in both North Dakota and Minnesota. He practiced civil litigation for forty years in the state and federal trial and appellate courts. In addition to North Dakota, he has also been involved in cases in Minnesota, South Dakota, Colorado, Wyoming, Ohio, and other venues. He now limits his practice to mediation and arbitration. During his active trial practice, he was listed in Martindale Hubbell with a rating of AV, was a former member of the American College of Trial Lawyers, and continues to be listed in various publications such as Super Lawyers, Chambers, and others.

Q: Can we make the results of a Settlement Trial binding on the parties?

A: Yes. We have made the results of our private trials binding in a handful of cases over the years. To accomplish this the parties appoint an arbitrator under the Uniform Arbitration Act. The arbitrator then crafts the award based on the verdicts and feedback from the jurors, instead of his/her own personal views. The Act gives us a well-accepted statutory foundation for making sure the dispute is resolved at the conclusion of any private trial. However, it is rarely necessary to make a settlement trial binding—most of our clients can read the writing on the wall. When they see a fair group of objective laypeople reject some or all of their arguments, they do the sensible thing: they change their number and settle the case.

 

Q: Can we make the results of a Settlement Trial binding within the limits of a high/low agreement?

A: Yes. You will also have the option of disclosing or not disclosing the high/low to the person appointed as arbitrator.

 

Q: How do you find your jurors?

A: We go to the U.S. Census Bureau to first figure out what a fair cross-section of the local population looks like in terms of Age, Race, Education and Work Experience. You will have an opportunity to give us feedback on these targets. We then create a website so that interested persons from the venue may register for serving as a private juror. We publicize the opportunity online, and with past First Court jurors from the trial venue who will happily refer their friends and neighbors to our site. We then interview the folks who have registered, and keep interviewing them until we have a group that matches the demographic targets. We try hard to avoid “professional jurors.” You will have an opportunity to see all the information we have on each potential juror, and to object to their participation, well before anyone is formally seated on the private jury.

 

Q: When is a case ready for a Settlement Trial?

A: As soon as both sides believe they have a firm basis for their evaluation.

 

Q: Can a Settlement Trial be conducted when discovery is ongoing?

A: Yes. We have done excellent private trials before formal litigation has even started. Doing so requires lawyers and claim handlers with the experience and proven instincts to fairly evaluate a case quickly.

 

Q: What about the need to first get all the experts deposed?

A: Deposing everyone in sight is almost always a waste of money. Good lawyers and claim handlers almost always know what the experts are going to say. We create this expected testimony and use it in our private trials based on the agreement of the parties.

 

Q: Trials involve many fallible human beings. What if something goes wrong during the trial? For example, what if a juror gets sick? Or shows up drunk?

A: Over the last 27 years we have found that these sorts of juror problems are less likely in our private trials because we do not compel our jurors to participate. They register to serve because they want to serve. If any such issue does arise, our agreement with the parties gives First Court reasonable authority to resolve problems and to conduct the trial in good faith.

 

Q: How long does it take to prepare my case for a Settlement Trial?

A: This depends on you and your case. A well-respected law firm in Minnesota has told us that they prepared their Self-Paced Trial with six hours of paralegal time. On the other hand, a Private Jury Trial will often require a solid week of preparation time.

 

Q: Are the parties required to pay the private judges ahead of time?

A: Yes. Neither First Court nor any of our judges care to spend time collecting fees. So we require a reasonable deposit whenever the parties require a ruling, or indicate a need for a judge. First Court pays the private judges out of this deposit. To encourage parties to resolve these matters on their own, the loser pays the judge’s time for all adverse evidentiary rulings. The balance is returned to you. So if you win all the evidentiary disputes, you will receive a 100% refund of your deposit.

 

Q: Can the parties agree on someone else to serve as our judge?

A: Yes.

 

Q: Are there any types of cases that are not appropriate for a Settlement Trial?

A: We discourage cases where critical issues of law are unsettled.

 

Q: What if we want a voluntary settlement process after the Settlement Trial?

A: We will talk with both sides, then draft a short plan that lays out the quickest and cheapest way to close your file. It will also set forth any additional charges for that follow up service. The parties are free to accept or reject that plan.

 

Q: How long has First Court been offering private settlement trials?

A: Since 1992. We have conducted private trials in 45 states, for cases ranging in size from $12,000 to $1,000,000,000.