[PODCAST] JAMS Neutrals Discuss How to Optimize Neutral Evaluation

In this podcast, JAMS neutrals Hon. Robert L. Dondero (Ret.), Hon. Allyson K. Duncan (Ret.) and Hon. Gregory M. Sleet (Ret.) explain the advantages of utilizing neutral evaluation prior to filling a brief or completing oral arguments. Drawing from their combined decades of experience on the bench, they discuss when neutral evaluation can be useful and the value that can be derived from the process, including improved litigation strategy. They also offer best practices and touch on how clients can support neutral evaluations by providing the right types—and amount—of background information, the feedback they have received from clients, and factors to consider when determining which neutral evaluators to contact to help with a specific case.

[00:00:00] Moderator: Welcome to this podcast from JAMS. In this episode, we're going to explore how neutral evaluations can help lawyers and their clients. With us are three former judges who are now JAMS neutrals and have extensive experience providing neutral evaluations. Justice Robert Dondero, who spent nearly 10 years on the California Court of Appeal; Judge Allyson Duncan, who spent 15 years on the Fourth Circuit U.S. Court of Appeals; and Judge Gregory Sleet, who served 20 years on the bench of the U.S. District Court for Delaware, including seven years as chief judge. Thank you all for joining us today. Judge Duncan, let me start with you. Neutral evaluations can be applied in so many different contexts. Can you help listeners understand their broad application?

[00:00:52] Judge Duncan: I'd be happy to, and I'm sure my colleagues will elaborate further. I was not myself aware of how many circumstances in which they could be useful until I started doing them and was asked to do them in a number of contexts, and it reminded me of a bit of advice that Chief Justice John Roberts would always give appellate students about oral advocacy, and that is you need to be able to explain what you want, why you want it and why you should get it in about two sentences or less. Otherwise, you haven't mastered your argument. I think what neutral analysis helps to do is to take advocates who tend to be extremely familiar with their own cases out of the weeds of that case and give them the advantage of perspective and perhaps enable them to strategize a little better.

[00:01:47] Moderator: Excellent. Judge Dondero, anything to add to that?

[00:01:51] Justice Dondero: Well, I think it's important to underscore the fact that these evaluations cover just about every phase of litigation, be it on the trial level or in the appellate level, because every case, especially complex ones, can be evaluated by a neutral or somebody who can offer an unbiased approach to the case and the law, and can give you help in how to present your matter to any tribunal.

[00:02:25] Judge Sleet: I’d add to both of my colleagues this thought that, at least in my view, it's an underutilized—we are an underutilized resource; that is, folks like us who can give these neutral evaluations as aids to preparation, as the justice just said, for any number of matters involving litigation.

[00:02:48] Judge Duncan: I would like to say one more thing in addition, just to round out what I think has been very helpful, and that is don't take from what we have said the notion that neutral analysis is only useful with respect to evaluating oral presentations. Of late, I have been asked several times to do a neutral analysis of a brief or a written presentation and have been told that having someone at the appellate level who is accustomed to particularly preserving the record and presenting an argument on appeal was extremely helpful in helping put the best case forward on the—on the basis of the briefs as well, because so many cases are decided on the briefs.

[00:03:39] Moderator: Absolutely. And Judge Sleet, can you explain how this process typically works? Who approaches you? Who hires you? How much material are you asked to look over, and how long does that engagement last?

[00:03:51] Judge Sleet: Sure. The first line of approach is my ADR specialist (case manager), Doreen Lavery, and potential clients reach out to her. After, I imagine, some review of our website, maybe I've been referred by word of mouth, by a colleague of the lawyers who are looking to hire me, I'm typically hired by, without common term, Big Law, is because I generally only accept this kind of work in complex matters. But, if I were approached in other matters, I would certainly accept as well, I just have not been approached for the kinds of matters that I wouldn't describe necessarily as complex, but where I still feel that a mock or a neutral evaluation might be useful.

So, you know, I'm just imagining what's going on behind the scenes when I'm answering your question. So, in terms of how much I'm typically asked to read, the ranges varies. It can be, you know, several bankers boxes full of materials. It can be just a loose-leaf binder, usually a fairly thick one.

It really depends upon what they're asking me to do. I usually sit with other evaluators, but I've been a solo evaluator on one or two occasions—but they're asking us to sometimes listen to a full trial presentation, a bench trial of some sort or arguments on a motion.

There's a creature in patent litigation called a Markman hearing. Sometimes I'm engaged to do that kind of thing. So, the amount of reading varies. As far as the length of the engagement is concerned, that too can vary. It can be a couple of hours; it can be a couple of days. I don't think I've ever gone longer than two days.

[00:05:41] Moderator: And, Judge Duncan, is your experience similar to Judge Sleet's? Is it typically Big Law and complex matters that come across your desk?

[00:05:49] Judge Duncan: I think that's correct, and I think—and I believe Judge Sleet was alluding to this—I think that lawyers often look at the kinds of cases you've been involved in on the bench.

I wrote a number of opinions in certain specific areas in False Claims Act cases, in pharmaceutical, intellectual property cases—there's some areas in which I have a body of opinion writing—and I think people go to that as a guide. But I think that one's wealth of experience one brings to a neutral analysis is just the experience of being on the bench, evaluating and responding to complex situations, whether they be presented by Big Law or not.

[00:06:35] Justice Dondero: Hmm. I would say that this particular process depends in large part upon your resume that's detailed in the JAMS website.

You identify your background as a trial judge and as an appellate judge, as well as your trial experience. And it indicates the kinds of cases you handled, both when you were on the appellate court and on JAMS as a neutral with that company. I think that the cases you're called upon to involve yourself based upon those various factors as well as your name recognition in the community in which the lawyers come from. As far as materials to look at, I mean, as was pointed out, you get large volumes of material. I have had cases with bankers boxes. I've also had cases where they're in a binder of some sort.

I think the lawyers should be advised to give you the kind of material that they want you to assess, because giving you a number of documents that are not really germane to the retaining issue may not be very helpful and [may] consume too much time. You really want them to provide you with the materials that they feel are the reason why they want your services as a starting point.

[00:07:49] Judge Sleet: Could I underscore something the justice said? It's important for potential clients to do exactly what he suggests, and that is not send more than is needed, not overburden the neutrals with material. You can eyeball when you get three boxes of material. You say, “Ah. Do they really want to pay me to read that much? No. Do I really want to spend my time reading all of that? Probably not.”

So, frequently, what I’ll ask is that my ADR specialist get in touch with the lawyers involved or put me in touch with a point person with whom I can speak and really sort of narrow down the assignment and what you need me to do and talk specifically about, you know, do I need to read this? Do I need to read that? It helps them make better use of their client’s budget as well as my time.

[00:08:40] Moderator: Great point. And, Justice Dondero, can you describe, you know, the real benefits of a neutral evaluation, where you think clients can get the most value?

[00:08:49] Justice Dondero: As has been indicated so far, this process of neutral evaluations helps the advocate decide that's seeking your services in a variety of ways. I've had a neutral evaluation assessment been asked of me in a case even before filing a complaint, where it's a complex products liability case, and the attorneys want to know how best to go about presenting this case in the complaint stage or whether to go forward. What are the defenses that if would anticipate being raised if a complaint is filed in this case. I've had situations where there is an appeal and there are multiple issues that are being submitted in the appellate brief by a party, and they want you to go through it, and you can identify what you think are the really important appellate issues that you think will be to the advantage of the party retaining your services, and determine those appellate issues, which really are frivolous or not going to go anywhere, depending upon the panel that they're going to be arguing in front of.

The clients get the most value when they approach this process of neutral evaluation objectively with the understanding that you're going to be pointing out the mistakes as well as the good parts of their case. And understand that they're asking for your services as an evaluator to basically point out what are, I would call, warts and all in the appellate case or the case that's being evaluated by you.

They have to be candid if they're going to get any value out of this process.

[00:10:30] Judge Duncan: I'd like to reemphasize that because it's rather like the advocate who stands in front of you and doesn't want to answer the tough questions, wants to duck the tough questions. That is so counterproductive, because the point of your being there is to give them the best answer to the hard parts of your case so that you can write an opinion or an order deciding in their favor if it is possible to do so.

So you do have to be prepared to accept constructive criticism. If you're not, then it's wasted effort.

[00:11:05] Judge Sleet: Let me add to my colleagues just a small bit. There's a fine line—in my view, my view, I'm speaking for me—between evaluating as a neutral or hearing a mock and being asked to consult.

There's a line and sometimes, admittedly, the line can be thin because in the natural back and forth, I find in the debrief—I found myself in what I would describe as a position of a consultant. The idea is for us to give them feedback regarding their presentations, warts and all.

[00:11:46] Justice Dondero: Mm-hmm. Often is the case in an appellate brief situation, there are good points on appeal and then there are bad points. And if—if you can point out and stress the really good points in the case which could lead towards a reversal of the judgment, that's important. There are some arguments that are going to be in a brief that counsel has provided to you that aren't going to win because of the standard of review. And it's important to point that out when you assess the overall presentation.

[00:12:18] Moderator: Just sort of a different way of asking the same question that we've been talking about. Are there moments of feedback that you can remember where you really added some value?

[00:12:27] Justice Dondero: You know, I come by that knowledge and information sort of secondhand, but sometimes firsthand—quite often firsthand, actually—doing what I've referred to as the debrief period. You know, you do the exercise and typically what's happened in the evaluations in which I've participated in is that the lawyers, the consultant, whoever's running it will—will provide for a period—it can be three hours, it could be more—where the lawyers and sometimes—depending on the nature of the case, the stakes at hand—we'll have the clients present as well, and you engage in a free-flowing back and forth where we're trying to be responsive to questions and the better-prepared clients have a ton of questions that they want to ask and that they're unafraid to ask in order to get the most out of the exercise.

[00:13:17] Moderator: And, Judge Duncan, have you received any helpful feedback?

[00:13:20] Judge Duncan: I have gotten—I was thinking as Judge Sleet was talking—I've gotten a kind of backhand feedback. I reviewed an appellate brief several months ago. I essentially—well, I wouldn't say that I rewrote it, but I kept saying, “Look, you are spending most of your time doing the worst thing you can do on appeal, and that is fighting on enemy territory. You've done an excellent job of dissecting what you think the opposing party got wrong. But I finished the brief and was scratching my head over what your affirmative view was as to what you did right and why you should prevail on appeal.”

And it was a fairly radical review, and I don't think I got—well, I don't remember whether I got direct feedback or saw the final brief—and it was almost completely rewritten and seemed to have taken into consideration everything I had said. So, not articulated, but in a way.

[00:14:31] Judge Sleet: And further to that, I have been the fortunate recipient—again, through my case manager, emails sent to her thanking me and my colleagues for the exercise and advising, you know, we changed our position, we changed our approach and we won.

And I've actually been provided with several decisions of judges that the lawyers who hired us attributed to the exercise. The good result they achieved through the exercise.

[00:15:00] Justice Dondero: These matters that you're retained to evaluate often involve arguments that your client, the side that's hiring you, will be arguing either before the appellate court or before the trial court.

And traditionally, I know, especially in the appellate, there are time limits that are placed on oral argument, and they're strictly followed in many cases by the appellate panel. It's important for you to understand that in your evaluation, you're going to be underscoring the points that you think are most important for that litigant to argue to the panel, realizing their time constraints. And so, it's essential—in the successful ones that I've handled—is to point out: This argument's not going to go very far. This argument will go better. It's a better argument. And consider that in your presentation. The lawyers appreciate telling them about the time limitations that they experience in these cases, and that's important to underscore.

Successful cases I've had have been the ones we've been able as a neutral to point out what we think are winners as opposed to losers and to where to spend your time arguing before the judges in the case.

[00:16:18] Moderator: Mm-hmm. Judge Duncan, any thoughts about how lawyers should go about finding a neutral evaluator or clients? And what do they need to look for?

[00:16:28] Judge Duncan: That's a good question, because I have some thoughts about what isn't particularly helpful that may be instructive. I was talking to a law firm not too long ago about a case that was coming forward in a different jurisdiction, and the issue was one involving admiralty, and they decided to look for a neutral with a background in the circuit in which they were appearing. Now that may make facial sense, but the jurisdiction in which they were appearing had virtually no admiralty case law. You know, the Fourth Circuit, on the other hand, is where you had the piracy cases argue and you had issues involving, well, whether piracy is in fact just kidnapping on water. So it may be that having a neutral from the jurisdiction in which you are presenting is useful, but not necessarily. And you should give that some thought before you confine yourself on an artificial basis that may not apply.

The other point I really didn't want to close without saying is give the neutral analyst time to do his or her job. I had someone approach me a couple of weeks ago about a brief he was filing in the Ninth Circuit in 10 days, and he hadn't finished writing it. I was saying, “What is it? When do you think you would have a draft?” Well—and the conversation deteriorated because it became clear to me and to him that he hadn't backed himself out enough to allow sufficient time for me to give any kind of valid feedback. So, if you want a valuable neutral analysis, you have to give the neutral analyst the tools with which to work, including the time in which they can consider the matter.

[00:18:35] Judge Sleet: Can I add something to that?

[00:18:38] Moderator: Please.

[00:18:38] Judge Sleet: Yeah. Sometimes I have found that clients seem to hire me because, you know, I sat in Delaware—it's a patent case typically—and they have a matter in front of one of my former colleagues. And I don't know if the thinking is that perhaps they'll get some added value from me because I know their mindset or I know how they will rule. I quickly disabuse those clients of any such notion. I tell them I'm not the decider anymore. I'm not going to attempt or hold myself out as some soothsayer to predict the future of what certain judge so-and-so might rule on regardless, and I think it's folly for anybody to hire me or anyone, any neutral evaluator, with that thought in mind. And I don't think it a good idea for a neutral evaluator, in my view, to attempt to predict how a judge will or will not rule. All you can do is look at the merits of the position of both sides of debate, and I give them the benefit of my experience and without trying to predict the outcome.

[00:19:49] Justice Dondero: Well, I think I’m going to disagree a little bit with that, Greg, because I think that while, generally speaking, you don't retain the neutral based upon her or his experience with members of the bench involved, it does help sometimes—depending upon where the case is being argued and where the judge sits—to have some understanding of the operation of that particular court in how they operate. I'm talking about community standards and what the judges expect in that particular situation. And so therefore, while it's not determinative by any stretch, it does help to have—when you have more than one neutral involved in a case—that person know the community in which the case is being argued. Because it does help in the assessment of legal issues and dealing with attorneys and things of that nature.

[00:20:43] Judge Sleet: I don't think that you're really disagreeing with me. I don't think you're talking about the same thing. I was talking about a substantive outcome, subject matter outcome. I'm not talking about operations or culture or anything like that.

[00:20:56] Judge Duncan: And I was going to pick up as well. I think it is different, but also it is not necessarily the case that familiarity with local customs, attorneys, et cetera, will be useful. It may well be, but it's not a completely reliable assumption. So just make sure that that is in fact the case before you make a decision based on it.

[00:21:23] Justice Dondero: It's a factor to consider. I agree. It's not determinative at all, but it is a factor. When you’re talking about retaining several neutrals to handle one particular assessment, it's kind of good to consider a broader retaining of persons as opposed to a more academic-type retaining of persons.

[00:21:45] Judge Sleet: On that point—and I don't disagree with the other comment—I am of the view, particularly depending upon the size and complexity of the matter, that more than one neutral is generally a better idea than just hiring a sole neutral. Neutrals also play off one another, particularly in the three-neutral-panel evaluations in which I've participated, and I have found them very to be very successful for the clients.

[00:22:15] Moderator: Justice Dondero, what do lawyers and clients need to think about or do so that they can get the most out of a neutral evaluation?

[00:22:23] Justice Dondero: The most important thing is to be totally candid with the neutral panel. As I said earlier, the standard is you give the good and the bad. You don't skimp on the bad, because it's going to be evaluated and perceived by the neutrals based upon what you provide them. And I think the important thing is that you have to make sure that the material you give to the neutral helps the issues that you think are germane to the appeal or to the oral argument that you're using the neutral for.

As we said before, boxes of material that are for record. If you're not doing an appellate brief, you're doing a neutral evaluation; there is a major distinction between the two. And you basically want to give the information that you think is helpful to be successful. And so, the more reading you give, it's going to be more costly and it's going to be not really economical for the assessments you're wanting from the neutral panel.

So that's how you get the most out of these cases—is to have all the material provided and being totally candid on what the good and the bad is in your case.

[00:23:34] Moderator: Judge Duncan, do you want to add any to that list?

[00:23:37] Judge Duncan: No, I think Justice Dondero has covered it very well. You have to be open-minded enough to accept the feedback of the neutral, which may not be to your liking. But, beyond that, I can't see any downside to going forward and gaining a better understanding of your case, both its strengths and its weaknesses.

[00:24:07] Moderator: Judge Sleet, anything about what clients and lawyers need to do to prepare for getting the most out of their neutral?

[00:24:14] Judge Sleet: Well, I completely agree with what my colleagues have just said. I would add that I have seen several times now with firms that they've hired—I don't know if they're consultants, I'll call them that for lack of a better analogy—jury consultants that do the point work, the contact work.

They may even prepare a questionnaire that they have wanted I and my colleagues to make notes on during the course of the evaluation. I'm not sure that I have enjoyed those most, or felt—it's not really my enjoyment that's an issue—but that it's been to the necessary benefit of the ultimate client, which is the firm. The lawyers are those who are going to have to go into court and make whatever argument they're going to make. If that's the way they want to run it, it's up to them. It's their diamond and they can spend it whatever the way they want to. But I'm not convinced that that's the best avenue to take, and I just offered that by way of a caveat of sorts in terms of potential downside, not downside to the evaluation. It's the way you handle it.

[00:25:22] Moderator: Absolutely. Justice Dondero, Judge Sleet, Judge Duncan. Thank you so much for a really lively and informative discussion about neutral evaluations. Really appreciate it.

[00:25:34] Judge Sleet: Thank you.

[00:25:35] Justice Dondero: Thank you very much.

[00:25:36] Judge Duncan: Thank you. I've enjoyed talking about the circumstances in which they can be used, and I thank my colleagues for giving me also some food for thought.

[00:25:49] Moderator: You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been Justice Robert Dondero, Judge Allyson Duncan and Judge Gregory Sleet. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.