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UWWM Principal Kimberly Sands

Wrapping up a Hot Summer with a Cool JADC Retreat

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I recently had the pleasure of attending the 2015 annual retreat of the Jacksonville Association of Defense Counsel at the Ritz Carlton on Amelia Island. Not only was the location a treat, but also the program, moderated by Boyd & Jenerette appellate attorney Kansas Gooden, was as good as any I have attended. UWWM was a sponsor of the event. UWWM Shareholder Bob Cole spoke on recent trends in mediation and ADR, including proposed amendments by the Florida Bar ADR Rules and Policy Committee currently under consideration by the Florida Supreme Court.

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Florida mediator John J. Upchurch

What's New and Promising in Class-Action Mediation?

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Basic goals in any class action include reaching broad relief for the class and finality for the defendant. The relief must be fairly noticed, claim-available and fair in relation to the multiplicity of claimants. One newly created instrument for affordable compensation is the implementation of class action insurance. This has been very effective for our clients, and consists of a post lawsuit settlement insurance product designed to provide protection against the risk and uncertainty of class action settlements in exchange for a negotiated premium. In these matters, cases fail to settle because defendants fear the exposure, risk and uncertainty of a large claims-made settlement. With class action settlement insurance, settling companies can mitigate the financial burden and uncertainty caused by a large settlement with unpredictable claims.

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Florida Mediator Michelle Jernigan

Jury Duty With a Mediator Mindset, Part 6: Conclusion

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Not only did I have the opportunity to see how a jury values a particular case, but also I gained insight into their thinking and decision making. Some of my assumptions were shaken; others were confirmed. I was concerned about the actual size of the pothole. This jury recognized that it was large enough to cause the damage complained of, so conflicts in testimony regarding the size did not bother them. This jury did not concern itself with minor inconsistencies in testimony, whereas my legal mind did. This jury did not seek to distinguish between symptoms from prior injuries and this one, whereas I did. This jury did not fall prey to the adage that juries are emotional and unpredictable. This jury saw through expert witnesses who were not credible. This jury did have sympathy for the plaintiff, but did not seek to punish the defendant.

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Florida Mediator Michelle Jernigan

Jury Duty With a Mediator Mindset, Part 5: Jurors’ Interviews

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I was released from the jury just prior to its retiring to deliberate the verdict. I was terribly disappointed that I was not going to continue to participate in a process I had talked about for years in mediation. However, I did maintain contact with two of the jurors and interviewed them separately. I prepared a long list of questions and had them rate those factors that significantly influenced their decision making. One of the jurors, a cellphone tower contractor, believed the contractor was at fault from the beginning of the trial. He was well aware of the responsibilities a contractor has for maintaining the safety of his job site.

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Florida Mediator Michelle Jernigan

Jury Duty With a Mediator Mindset, Part 4: Damages

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The jury’s methodology for determining damages was the most surprising aspect of the trial. The plaintiff’s lawyers submitted evidence showing the medical bills incurred by the plaintiff as a result of the injury were $95,000. The defense asserted some minor arguments regarding the medical bills but did not sufficiently persuade the jury to reduce those bills. Consequently, the jury awarded all the future medical bills requested by plaintiff and increased that figure for the cost of inflation. In closing argument, the plaintiff’s attorney also requested the jury award $150,000 in past pain and suffering and $150,000 in future pain and suffering. I latched on to these figures and assumed, based on my mediator mentality, the plaintiff’s attorney would think a $200,000 pain and suffering award would be reasonable.

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Florida Mediator Michelle Jernigan

Jury Duty With a Mediator Mindset, Part 3: Liability Issues and Causation

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The plaintiff asserted the construction company had been negligent by failing to exercise due care in re-routing traffic away from the pothole. There was no question the construction company knew about the pothole; the issue was what duty it had to protect the public from the pothole. The defendant’s expert opined that re-routing traffic was difficult because it required agency approval and was, therefore, not a practical solution. The plaintiff’s expert testified , to meet the duty of care, the defendant had to re-route the traffic.

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