Update from the trenches: A mid-trial mediation succeeded in settling what seemed an unsettleable case

On April 15, I blogged briefly about a commercial fraud bench trial that I was due to begin on the following morning, apologizing to my readers for the likelihood that my blogging schedule would be severely reduced while I was in trial.

My post was something of a rant, undoubtedly because I had my "game face" on and was winding up for my opening statement on behalf of my clients, the defendants in the case, on the next morning. And my opening statement was indeed pretty fierce and passionate. Even before it, I had a stout and very controversial pretrial motion to present, and I got most of the relief I sought from that. The first two witnesses called by my opponent during his case-in-chief went well for our side that afternoon. It's generally a good sign when, during the first day of a bench trial, your objections are mostly being sustained, and the trial judge has at least twice interrupted your opponent to say, "Now Mr. ____, I don't want to tell you how to try your case, but it seems to me ...."

The next morning, I received a phone call at 6:00 o'clock a.m. from my opposing counsel, who advised that he felt too unwell to attend court and that he was going to be seeing a physician that morning instead. He'd so advised the court staff as well, prompting an early morning teleconference at which the judge declared a recess long enough for him to see his physician. The physician's report later that day was that she had found my opposing counsel medically unfit to continue the trial due to "effects of chronic sleep deprivation and anxiety relating to the stress he is under at this time." Based on that, the trial judge extended the recess for the balance of that business week.

Let's take at face value my opponent's statements and his physician's diagnosis, for I lack either the medical expertise or a factual basis to dispute them. I suspect every trial lawyer who's ever tried a case — including even old dogs like me, who've tried a whole bunch of them — suffer from some degree of sleep deprivation and anxiety with just about every trial. From a tactical standpoint, I hated to see the trial interrupted; we thought we were winning, and that any delays were more likely to benefit our opponents than us. But as I told my client, opposing counsel, and the trial judge at the time, as important as this trial was to the litigants and their lawyers, not anything having to do with it was worth anyone's health being seriously jeopardized. I therefore did not object to the extension of the recess, and the trial judge's decision to grant it was absolutely the right thing to do on both a legal and a humanitarian basis.

Part of the art of being an effective trial advocate, however, is looking for ways to make lemonade out of whatever lemons pop up during a trial. Perhaps, it occurred to me, my opponent's physician would clear him to return to some duty less stressful than the trial itself even before he had fully recovered. And perhaps the events of the trial's first day would create possibilities that hadn't existed before.

I sent a lengthy email to my opponent, proposing that while he was recovering, we conduct a nonbinding day-long mediation before an experienced mediator chosen by the trial judge.  It's typical in Harris County, and I think throughout most of Texas, that trial judges much prefer it when the parties can choose a mediator by agreement without court designation of one; there's more paperwork involved if the judge has named the mediator, which is basically reporting done to ensure that judges aren't abusing their positions by funneling lucrative mediation business to special friends and cronies. Our case, however, had an almost 10-year history of profound mistrust between the litigants, and my opposing counsel and I agreed that this was one of the rare occasions when everyone would be better off knowing that neither of us had chosen the mediator. The trial judge agreed, and gave us three names to choose among; we compared schedules and availabilities, and quickly confirmed a full-day mediation session for the following week.

And at about 10:00 o'clock p.m. on the day of the mediation, we finally reached a negotiated compromise to settle the entire case. My opponent's health has continued to improve. And although we had some back and forth as we prepared the final documents to effectuate the settlement and end the lawsuit, we eventually were able to work out those problems too (again with some help from the mediator, who was superb throughout). Yesterday, the judge signed the agreed final judgment submitted by both sides.

The settlement terms aren't confidential, but they aren't really anyone else's business either. Nevertheless, I can say with confidence that those terms appropriately reflected both sides' risks (including litigation expense) had the case not settled, and the elimination of those risks justify the compromises each side had to make as compared to their "best-case scenario" had the case been tried to a conclusion. And I genuinely believe that even with the same mediator, and even with the same extraordinary efforts by the principals and their counsel, we would not have been able to reach a successful mediated settlement before that first day of trial had been concluded.

The moral of the story, then, is this: When something unexpected happens to you mid-trial, don't let your focus on the details of the close combat blind you to new possibilities that may have opened up in the bigger picture. Be creative; re-examine your premises; and don't just gnash your teeth and wail about your bad luck. Proposing this unusual mid-trial mediation probably wouldn't have ever occurred to me but for my opposing counsel's illness, but as things turned out, it became the proverbial blessing in disguise.