ADR SPOTLIGHT: Are Fast Track Jury Trials another potential ADR option?

By Richard Hurford During a recent ADR Summit hosted by the Supreme Court Administrator's Office of Dispute Resolution, various forms of ADR were explored and discussed by the attendees. Included was the potential use of Fast Track/Expedited Jury Trials. There existed significant interest in the use of this technique and, in fact, a task force is being formed to evaluate whether an Administrative Rule should be developed to explore the potential of this ADR process during a pilot project. A number of courts outside the State of Michigan have explored the efficacy of utilizing binding "Fast Track Jury Trials" as a form of alternative dispute resolution when the amount in controversy is not sufficiently large to justify the cost and expense of a full, traditional trial and the parties desire a binding decision from a jury rather than an arbitrator. (See Short, Summary & Expedited, The Evolution of Civil Jury Trials, National Center for State Courts, www.ncsc.org.) Perhaps the best known example of this particular practice is that provided in the Charleston, South Carolina County Courts. (See Steven Croley, Summary Jury Trials in Charleston County, South Carolina, 41 Loyola of Los Angeles Law Rev. 1585 (Summer 2008.)) This process involves the voluntary agreement of both parties to be bound by the decision of the Fast Track Jury that is presided over by a mutually agreeable Hearing Officer. On the day scheduled for the trial, the parties empanel a jury drawn from the court's standard jury pool. Typically the jury will consist of no more than 6 individuals and each side is limited to two peremptory challenges. The voir dire is limited and usually conducted by the Hearing Officer. Although the parties have significant latitude in agreeing on the procedures that will govern the process and the presentation of evidence, the usual agreements on the process involve among other items: * The trial will be completed in one day; * No party will call more than an agreed number of live witnesses; * The admissibility of designated depositions and affidavits; * The parties will have the right to issue subpoenas; * That certain records (such as medical records and test results) will be admitted without the usual requirements of authentication and other limiting rules of evidence; * Those instructions that will be provided to the jury prior to the deliberations; and * To waive making a motion for a directed verdict, motion to set aside the verdict, or the filing of motions for additur or remittitur. The role of the Hearing Officer is to ensure the procedures are followed as agreed to by the parties, make any necessary evidentiary rulings, and instruct the jury. Although the Fast Track Jury Trial can be a stand-alone ADR technique, it may also be incorporated into multi-staged ADR agreements very similar to the Med-Arb hybrid processes. Although the Med-Arb process has become increasing popular as a very effective ADR technique, (see, e.g., Martin Weisman, Med-Arb: A Time and Cost Effective Combination for Dispute Resolution, 3 Dispute Resolution Magazine Vol. 9 (Spring 2013)), there are some parties who are not comfortable when the mediator assumes the role of the arbitrator should the mediation fail to achieve a resolution. (See Brian A. Pappas, Med-Arb: The Best of Both Worlds May Be Too Good to Be True, 3 Dispute Resolution Magazine Vol. 9 (Spring 2013); Barry C. Bartel, Med-Arb as a Distinct Method of Dispute Resolution: History, Analysis and Potential, 27 Willamette L. Rev. 661 (1991)). Also, there are some parties who prefer to have their case decided by a jury rather than an arbitrator. To address these concerns, and yet achieve many of the benefits and cost savings associated with the Med-Arb process, the parties might select a mediator who will act as the Hearing Officer should the mediation not resolve the entire case. Following the mediation, the mediator will become the Hearing Officer to preside over the fast track jury trial (unless the parties desire a different Hearing Officer than the agreed upon mediator) and the jury decides those issues that were not resolved at the mediation. Similarly, if the parties desire a hi-low arrangement, then, just like in the Med-Arb Hi-Low hybrid, the parties will be bound by that agreement. Should the jury's verdict be higher than the agreed upon "hi," the defendant is only liable to the extent of the agreed upon hi. If the verdict is below the agreed upon "low" or a no cause of action, the defendant is bound to pay the plaintiff the agreed upon low. If the jury's verdict falls between the agreed upon hi- low, then that verdict will be binding on the parties. Although there is no known Circuit or District Courts in Michigan that routinely employ a fast track jury trial programs, it would appear to be an available ADR mechanism even in the absence of a modification of current Circuit Court ADR plans or the development of an empowering Administrative Order. If the parties stipulate to the use of this procedure, then a Court should have the authority to order the process as specified in MCR 2.401 (A) (2). Of course, the use of this technique should be explored and fully discussed with the Court to ensure the process will be supported by the judge assigned to the case. This process can be very effective for parties involved in lower exposure disputes where the cost of a traditional jury trial is not justified. As documented in the Vanishing Jury Trial, American College of Trial Attorneys, The "Vanishing Trial", the College, the Profession, 22 (2004), it really makes no business sense to spend a week or more in a traditional jury trial, expending upwards of $200,000 in attorney fees and costs, when the realistic exposure or recovery is less than $100,000. In addition to avoiding some of the concerns associated with the Med-Arb process, it also provides the option to parties who prefer to have a jury trial rather than arbitration as the ultimate dispute resolution step. One South Carolina practitioner who is a frequent user of the process has said "Both sides win in this process--quicker, cheaper, and with certainty. The benefits extend to the litigants, the attorneys, the court and even the jurors.... From the litigant's perspective, the parties are given their day in court without the costs associated with a full trial. This method affords the parties a chance to tell their story to a jury that decides the case... Virtually all parties enter into a high/low agreement and, as an incentive to the plaintiff to agree to the high/low, the plaintiff may be able to secure a disbursement of the agreed low upon entering into the agreement." Where appropriate the Fast Track Jury Trial is certainly an option to consider where the client's objectives will be achieved and the Circuit or District Court will support the procedure. ---------------- Richard Hurford is the president of Richard Hurford Dispute Resolution Services PC and has a wealth of experience in ADR as a seasoned and respected litigator, mediator and ADR neutral, having personally tried or arbitrated more than 75 cases to a verdict or decision. He is an often sought as a presenter on ADR and frequent lecturer for ANDRI, ICLE, the Michigan Judicial Institute, and the National Judicial College. Throughout his career, Hurford has personally participated in hundreds of mediations and other ADR processes as either an attorney or neutral. In addition to his services as a respected neutral mediator, he is also experienced in various ADR processes such as Med-Arb, Summary Jury Trials, Neutral Expert Evaluations, Mini Trials, Dispute Resolution Boards, and providing counsel as a Dispute Resolution Advisor. He is a professional with Professional Resolution Experts of Michigan (PREMi, http://premi.us/) and a member of AAJ, DRI, MDTC and ACR. Hurford's web site can be accessed at hurfordresolution.com. Published: Fri, Nov 29, 2013