Trial Magazine

For better or worse, the world has changed over the last three years, and many of those changes seem to be here to stay.¹ Gone are the days when most weeks were spent on a plane, flying from state to state, looking opposing counsel and deponents in the eye from across the table. Now, most of my days are spent behind a screen (or many screens), as I—like many others—have transitioned into the virtual age of lawyering.

Virtual lawyering, while convenient, presents a host of unique challenges. One of the most significant hurdles has been learning how to succeed at mediation when no one is in the same room and many are attending from the comfort and safety of their home or their office. Although the benefits of being in the same room are undeniable, here are some strategies to still have a meaningful mediation virtually.

A Different Approach

Due to the relaxed atmosphere and decreased pressure that virtual mediations present, pushing a case to resolution often requires a slightly different approach. This is especially true when coupled with the backlog of trials in most courts that is unlikely to see much relief for several years. How do you convince someone sitting comfortably in their house or office, who knows that this case probably won’t see a courtroom for at least a year, to settle? You need to get ahead of the challenges of virtual mediations to give your clients the best opportunity at resolution.

For example, in Florida, most cases are on perpetual continuance as more and more cases are piled onto each docket period. The threat to a defendant of an imminent trial has become much less effective in convincing adjusters to resolve cases at mediation. Additionally, being forced to travel to the mediation location and spend the entire day out of the office and completely focused on one case—and the desire at the end of a long day to just get the case resolved so they can catch the last flight home—does not exist when the decision-makers are appearing from their living room or their office, staring at a screen, with the ability to turn off their camera and microphone.

When the pressure is off, mediation can very easily become a formality rather than a useful tool for resolving cases. The decision-makers would rather hold out until it becomes too stressful and too risky to do so any longer. So what do you do? How do you recreate that sense of urgency that hangs over the defendants until they seem serious about settlement?

You want the decision-makers to be thinking about the risks your case poses to them on a regular basis. Be the squeaky wheel. Keep the file on the adjuster’s desk.

Prepare Early

The case didn’t start the week before mediation so why should your preparation? You have been worrying about this case for months or (more likely) years—make sure the other side has to worry too.

You want the decision-makers to be thinking about the risks your case poses to them on a regular basis. Be the squeaky wheel. Keep the file on the adjuster’s desk. Be sure they keep it on their bosses’ desks. For example, after each deposition, I try to send follow-up discovery that is narrowly tailored to specific issues that may have come up. After important depositions, I send a letter to opposing counsel highlighting the points that were made in support of my position in the case.

Present the case’s risks at every opportunity. Never rely on the attorney on the other side to acknowledge them. With few exceptions, they are not going to write reports to their clients that fully capture the magnitude of the exposure that nonresolution will cause for them.

Make your demand package more than words on a page— embed the video clips from the deposition into your letter.

Interactive Demand Packages

Remember, our “desks” are no longer stacks of paper sitting neatly in an office. They are share files, photo albums, videos, audio recordings, and illustrations—all living in a cloud that can be accessed from anywhere. Your demand packages should be the same. This is how people consume information and how they are persuaded. You wouldn’t stand up in front of a jury and just read your opening, so why would you send a demand like that?

Send a demand package early, and update it with supplemental packages every time something happens in your client’s case. Did you uncover something useful while deposing the defense expert? Send a supplemental package. Make it more than words on a page—embed the video clips from the deposition into your letter, and make it interactive. Show opposing counsel how you are going to use multiple formats to engage the jury at trial.

For example, my cases, which are mostly medical negligence cases, are very expert-intensive. Listening to doctors discuss standards of care and literature is not always the most engaging activity—for both juries and adjusters. Try to make your demand packages engaging and interactive by including photos, videos, links to literature, and screenshots of medical records—not just words on a page.

I record Zoom calls with my clients where we pretend that we are at trial, talking to a jury. I have them tell us about their lives before the incident and their lives now. We talk about all the ways their world has changed because of the death of a loved one, about the struggles they now face as a single parent, or the things they wish they had been able to ask their mother before she died due to the defendant’s negligence. Then, I choose five to 10 minutes of the best clips and embed them within the demand letter as a link that takes the reader directly to a private Vimeo page to watch the clip.

I also videotape all depositions for this purpose. If a defendant or a defense expert came across as unlikeable or unbelievable on video, I want the decision-makers to see it for themselves rather than hope that the defense attorney acknowledges it. If literature exists to support my theory of the case, I include that too, often with a short video from my expert explaining why it matters.

When it’s time to prepare for the mediation, these interactive updates make it much easier to create an engaging presentation. Create a PowerPoint with the key documents, play key pieces of testimony, and show the other side the risk they take by ignoring your case for much longer. But most important, make the presentation engaging. Don’t just fill slides with hundreds of words—a PowerPoint should act as a visual supplement to what you are saying, not a crutch with your script.

Relationships Still Matter

Work to develop a relationship with the defense attorney well in advance of mediation. Since you won’t be able to pull them into a side room or chat while you both get coffee, have their cell phone number so you can text or call. Virtual breakout rooms are also an excellent tool for having more candid discussions with defense counsel privately without clients present.

The way we interact may have changed, but the people doing the interacting have not. With a little extra preparation on the front end, reaching settlements on tough cases sitting on long dockets is not only possible but achievable.

Nicole Kruegel is a partner at Domnick Cunningham & Yaffa in Palm Beach Gardens, Fla., and can be reached at nmk@dcwlaw.com.

Note

1. For additional reading on virtual mediation logistics, see J. Kent Emison & Nancy Saitta, Plug In: Virtual Mediations, Trial, Aug. 2020, at 48.