Arbitration & Mediation

Negotiation Tips Using the New Expedited Jury Trial Procedures

By Victoria Pynchon

Check out Julie A. Goren's excellent article California Expedited Jury Trial Act Opens New Avenues for California Mediators over at Litigation by the Numbers.  Excerpt below.

Every California mediator needs to read the California Expedited Jury Trial Act (AB 2284) and the rules implementing it. The easiest way to access the Act before January 1, 2011, is to go to the Legislative Council of California website's Bill Information page and search for Bill 2284 under Assembly Bills. The implementing rules (California Rules of Court, Rules 3.1545-3.1552), the new mandatory form "Expedited Jury Trial Information Sheet," and interesting background information about the Act (including comments from the drafters) may be found in the Civil and Small Claims Advisory Committee's October 8, 2010 Report to the Judicial Council (f).

For now, let me give you a very brief overview and point out the areas in which the mediator may continue to be a valuable player.

An expedited jury trial ("EJT") is heard on a date certain, and the entire trial (from voir dire to closing arguments) is completed on that date. Participation in the EJT process is voluntary. Certain provisions of the rules are mandatory; others may be modified by the parties.

These are mandatory: (1) the parties generally waive their rights to appeal and to make post-trial motions; (2) the jury is smaller; (3) the parties are allowed fewer peremptory challenges; and (4) each side must present its case within three hours, including time spent on cross-examination. Otherwise, there is a lot of flexibility and room for the parties to come to agreement.

Here are a few of the areas where flexibility and room for negotiation exist:

• Modifications to timing of pretrial submissions
• Stipulations to factual and evidentiary matter
• Limitations on number of witnesses per party
• Modification of rules re exchange of expert witness information and presentation of expert testimony
• Preparation of joint form questionnaires for voir dire
• Innovative methods to present matters to the jurors

But of all of the areas in which the mediator can continue to be of service to the parties, perhaps the most significant is reaching a "high/low agreement."

The high/low agreement is defined in the Act (C.C.P. section 630.01) as: a written agreement entered into by the parties that specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury.

Full post as published by Settle It Now Negotiation Blog on November 13, 2010 (boomark / email).