Sandra Mazer Moss

How many times have you said to yourself (or someone else, if you had the guts): “Just keep it simple stupid!”

I, for one, have said it to myself multiple times—especially in the last five years—as I plowed through a 45-page mediation memorandum, trying to make sense out of a complex medical malpractice or products liability case. I encountered the same horror show when I attempted to prepare for a prolonged jury trial in a multiparty class action or mass tort, when I sat on the bench. Too much information can make the most complex cases a waking nightmare that defies even the most erudite brains and makes one want to pull one’s hair out a strand at a time.

Thus, once again, I believe there is some reinventing needed ASAP. First, no matter how complex the case, no matter how multi-layered the issues, mediation memoranda should be boiled down to simple terms. Moreover, streamlining your argument and succinctly stating the relevant facts and law is great preparation for your trial presentation, if, G-d forbid, you actually have to try the case.

For example, start with a table of contents that lays out the various sections of your memo, i.e., issues, facts, argument, expert reports, medical records, diagrams and photos. Pictures really are worth a thousand words.

Define the issues first, clearly and directly. Be sure to include those issues on which all sides agree and those in dispute, which should narrow the mediator’s focus greatly. If some parties agree and others don’t, lay that out as well. In this way, the mediator will know instantly the type of case in question and where the disputes lie.

The facts should also be stated simply. If most of the facts are agreed upon and the dispute is basically legal, let the mediator know up front.  It will save lots of paper, as well as time, which turns into money as most mediators bill in hourly increments.

Keep your memoranda short, 10 pages or less is preferred. Some mediators ( I, for one), prefer to read everyone’s memorandum initially to get the gist of a dispute from all sides before reading expert reports and medical records. Once I have a global feel for the case, I will go back and read everything else. Thus, it is important to hit the high points of your expert’s reports in those 10 pages to give the mediator the best preview possible, with a page and line cite so he or she can reference a quote without spending 20 minutes paging through a 20-page report to find it.

Expert reports should have executive summaries, especially if they are more than four or five pages. And, if there are important opinions or conclusions, they should be marked with highlighter for easy reference.  You should encourage experts to simplify their reports so lay people can follow their logic, no matter how convoluted. Again, the purpose of an expert is to convince a jury (or a mediator), that their opinions are the only correct ones. And, how can they do that, if no one understands what they are talking about in the first place?

One thing that should be eliminated from your medical packet is the expert’s 30-page Curriculum Vitae. I cannot emphasize how frustrating it is to page through meaningless lists of peer review articles and speaking engagements to find out if the doctor is board certified in the medical specialty at issue. I am not saying an expert’s CV is unimportant. As a judge, I charged countless juries on the importance of weighing each expert’s qualifications before deciding which to believe. However, there is a better way to do it. A paralegal can condense a CV into three or four succinctly worded pages with a note that the unabridged edition is available upon request. The shorter your presentation, the better the chance your mediator (or trial judge) will read and absorb the entire thing.

Photos, diagrams and illustrations should be liberally used. If the mediator can concentrate on a diagram of how a product is constructed or a short video of a medical procedure, he can get a better understanding of how the product works or is manufactured or what steps are necessary in the medical procedure. If both sides can agree on a particular diagram or video, all the better. An educated mediator is many steps closer to amicably resolving the dispute than one who is not.

Medical records are essential to any personal injury case no matter what its origin. However, two feet of medical records haphazardly thrown together is no better than none—maybe more so as it will discourage even the most dedicated, obsessive, compulsive mediator from reading further.

Medical records should be culled for their essential factual and medical basis. Emergency room records are important in showing what the plaintiff stated on admission and what his condition was on arrival. However, if several people spoke to the plaintiff or examined him, it may not be necessary to include all of them unless, of course, there are various discrepancies. In any event, important entries should be highlighted and included in the memorandum initially to give a preview of what should be looked for in the records. If all a mediator can do is read the highlighted paragraphs in medical records, he should come out with a good understanding of the plaintiff’s medical condition from the plaintiff’s and the defendant’s perspectives. Since the mediation memo is your first opportunity to convince the mediator of the value of your case, it is essential to highlight every possible aspect—factual and legal, concisely in one place, 10 pages maximum.

While it is routine to include expert reports, medical records and to some extent, photographs in the mediation memorandum, it is less usual, even in catastrophic accident cases, to include police reports and school or employment records. These documents can, once again, simplify and clarify essential issues.

Similar to emergency room records, police or EMS reports set the stage for everything going forward. Here, issues are posited before litigation is even contemplated. If the plaintiff or defendant gives a statement to police, emergency or hospital personnel and then corroborate this later in depositions, it becomes all the more powerful. School and employment records can also corroborate a plaintiff’s or defendant’s theories regarding mental status, wage loss and employability. If you seek to persuade the mediator, they become a very useful tool.

You may be thinking: “How can I fit all of this into 10 pages or less?”

I suggest you sharpen your editing pencil and focus on the most salient points. It may take some time but it is doable. I once consulted on a case scheduled before another mediator. The plaintiffs counsel wanted me to critique his mediation video. The idea of a mediation video impressed me very much as, while a picture is worth a thousand words, a video is worth 10,000 words. This video was chock-full of useful information—so chock-full that I found myself zoning out after 15 minutes or so. It was very well done, but entirely too long so the most emotional moments were swallowed up with a plethora of often redundant information. We edited it together, shortened it, tightened it up and focused on the most powerful aspects. The result was awesome. So was the settlement.

No matter how complex the case, no matter how convoluted the issues, these tips can help both plaintiffs and defendants simplify and clarify their mediation presentations to maximize their opportunity for a fair and reasonable resolution.

Sandra Mazer Moss, retired, served on the bench as a trial judge, judicial team leader, and most notably, was the founder and first supervising judge of the Complex Litigation Center. She now works as a distinguished neutral for The Dispute Resolution Institute.