The Gambler, a Kenny Rogers song, gives sound advice for playing a card game of chance: Know when to hold ’em, and know when to fold ’em. But it’s also sound advice for a more serious game of chance: a jury trial in a civil lawsuit.
When you ask an attorney to take your case, the attorney may tell you something you don’t want to hear, especially in cases involving at-fault accidents. It is better to find out sooner rather than later. Be mindful, too, that a trial is going to be on the facts, and not on sharp emotions. Look at the facts as objectively as you can, stripped of emotion (however justified those emotions may be).
In my experience, every able trial attorney who has taken many cases to a jury is going to urge you to settle your case in an appropriate way short of a jury trial and verdict. Jurors are told to follow the law, and they take their duty very seriously. But jurors polled after an unexpected verdict, which isn’t necessarily infrequent, will sometime recount an assumption/guess by jurors at some “fact” that is wildly inaccurate, wrong or based on some personal but irrelevant experience.
Some years ago, the North Carolina Bar Association appointed a committee of attorneys and judges to find state models around the country to see if our courts should require fair mediations before a jury trial. It could encourage an earlier resolution of cases, rather than on the courthouse steps, or after a trial has started. The amount of money saved by the government when fewer cases were tried in the courtroom was significant, so the taxpayers had a stake in how these disputes were resolved, too.
The chief justice of our state Supreme Court and some attorneys across the state were recruited to be on the committee. I was privileged to serve on that committee. And we travelled around the country to look at the best practices of many other states.
The model adopted by our state courts, which now is required to be followed in virtually all civil cases, is the result. In a civil case, the parties are almost always required to mediate the case, employing an agreed-to trained mediator before it can proceed to a trial by jury. And well north of 80%-plus of the cases are settled at mediation or shortly thereafter, saving the parties (and the taxpayers regarding courthouse expenses) untold sums of money, reaching a sure result sooner rather than later, and allowing the emotional toll of litigation to be behind clients rather than in front of them.
One of the best components of a mediated settlement is that the mediator is highly experienced in what happens if a case is tried in court. Many of them are retired trial judges or experienced litigators. So, the mediator has seen what really does happen when a case is not resolved. Which is why mediators do their job to nudge and push both sides to see the strengths of the other party’s case, and the weaknesses of their own case.
When you have an objectively based strong case, do not be afraid to take your case to a jury. Just be sure to listen fully to the advice of your experienced attorney, whose job it is to assess the relative strengths and weakness of both sides. And what the experienced mediator tells you about what really happens when a case is not settled, and juries of 12 people render their verdict.
Remember: An informed choice is a smart choice.
This article was originally written by Mike Wells and published by the Winston-Salem Journal. To read the original article, visit the Winston-Salem Journal online here.