It is no exaggeration to say that I learn something (or many things) from every mediation or settlement conference I attend. I recently traveled to Fresno to attend a settlement conference before a talented and hard-working USDC magistrate judge. During the conference he made a point that had escaped me before, but hopefully never will again.
First some background. This was an employment discrimination case in which the plaintiff alleged harassment, retaliation and constructive discharge, which would require her to prove that her working conditions were so intolerable that a reasonable person in the plaintiff’s position would literally have had no choice but to quit.
Early in the settlement conference, the judge met briefly with the lawyers and parties altogether. He employed an interesting, but effective approach. He spent a bit of time talking about the parties’ respective cases, focusing on each side’s weaknesses. After a few minutes of this, he said “here’s where I see the range,” and proceeded to give us a bracket.* The bottom of the bracket was well above where my client, the defendant, was prepared to negotiate so early in the settlement conference. However, the top of the bracket was well below where we knew (from prior discussions with her counsel) plaintiff was interested in beginning negotiations. Thus, both sides were equally unhappy. The judge concluded this introductory session by excusing us to meet separately with our clients. If both parties were interested in negotiating within the judge’s bracket, we should return after lunch and continue the settlement conference. If either party was not willing to begin in the bracket, we were instructed to so advise the judge’s clerk and we would be excused for the day.
What I liked about this approach was how it cut through a lot of preliminary posturing. While I would not recommend it for a paid mediator, it was effective coming from a USDC magistrate judge. Both parties reluctantly agreed to negotiate within the bracket and, several hours later, we settled the case.
One of the things the judge pointed out when he was apprising plaintiff and her lawyer of weaknesses he perceived in her case related to where the jury venire would be drawn from if we did not settle. Had the case been pending in state court, jurors would have been drawn solely from Fresno county, which apparently enjoys a healthy mixture of middle and lower middle class jurors owing to a university and, if not thriving, at least sustaining local agriculture-based economy.
But, because we were in the Eastern District federal court, our jurors would be drawn, not only from Fresno county, but also from several surrounding counties. The judge pointed out that jurors from many of these surrounding counties will have been struggling financially since before the recession. Jobs are scarce. Many of these jurors, the judge said, will not be particularly sympathetic to the notion that any person who was lucky enough to have a job would voluntarily chose to leave, regardless how bad the conditions were.
Whether this hit home for plaintiff or her lawyer I don’t know. But I thought it was a pretty powerful point. Forum shopping is nothing new and our opponent had unsuccessfully fought pretty hard against our removal of the case from state to federal court. But, if you find you’re in a venue in which the jurors are not going to easily receive your client’s theory or conduct, it’s important to factor this into your strategy and presentation.
How do you figure out if you’re up against this kind of “region bias” on any particular issue? I had spent some time looking at census statistics for Fresno, thinking I was gaining some understanding about our potential jurors, completely overlooking the fact that a district court draws from outside the county. There’s your answer, though. Find out definitively where jurors for your courthouse will be drawn from and analyze that entire region. A better approach, though, might be to retain local counsel (always a good idea, in my view, if the case warrants the cost and you can find reliable local counsel).
Whatever you do, it’s critical to find out where your jurors will hail from, and be perceptive to possible “region bias” issues that could impact your client’s success at trial.
*Of his “throw out a bracket” approach the judge said he would normally never “just put a number out there,” but he was pressed for time that day, as he had meetings and a hearing he had to fit in around our settlement conference. Ironically, throwing out the bracket was probably the most intelligent thing the judge did all day.