Last week I attended the wake of one of New York’s foremost mediators, Michael McAllister. Having been a private mediator with JAMS for the last six years, he had developed a reputation among all litigators in the negligence field as fair, honest, hardworking and a true gentleman. As I watched attorney after attorney and even insurance adjusters pass through the funeral home, I was reminded of the first time I had ever heard of the concept of mediation.

Almost fifteen years ago, I was asked, as a law student working at a prominent New York personal injury firm, to prepare a case for mediation. Having just completed three years of law school, I was kind of surprised that I had not heard of mediation. Furthermore, having worked for over ten years at this firm as a high school student, college student and law student, the concept of trying to settle the case using a private mediation service was something unheard of. We were weeks away from trial and it seemed like everything had been going as planned.

I walked into the managing partner’s office and asked, what is this private mediation and why are we trying this since we are so close to trial? The answers I was given, though strange at first, are so on point and correct in today’s litigation trial strategy.

Private mediation is essentially a mutual agreement by all sides to retain the services of a retired judge or former court attorney so that each side can present the strengths and weaknesses of their case in a forum that allows for open communication and dialogue. The goal is to begin settlement discussions and resolve the matter to the benefit of all parties, more often than not.

Read moreMediation Increases the Success of Injured Clients in New York

Human tendency is to want immediately everything that can be obtained immediately. We like one hour photo-labs, microwave ovens, overnight mail, same day dry cleaning, and fast food. Well, as proof that the wheels of justice don’t always turn slowly, our beloved court system has developed the summary jury trial also referred to as the “SJT.” An SJT is an alternative dispute resolution technique that has been around for years but is now gaining increasing use around the country and certainly in New York. It is a break from the regular trial system and can afford a litigant several benefits.

The particular technique of which I have had personal involvement has been the “Binding SJT” in which the parties try the case to a binding verdict rather than simply engaging in a non binding mock trial. The binding SJT’s are generally one or two days in length. The parties stipulate as a prerequisite that each litigant will be bound by the jury’s verdict. The right to move to set aside the verdict may be waived or strictly limited to instances where, for example, fraud was used to obtain the verdict, or there is an error of law that occurred during the trial, or a miscalculation of figures occurred.

The first day of the trial is generally used as an evidentiary hearing for purposes of determining which documents and witnesses the jury will learn about and/or hear from during then trial. Related medical treatment records as well as the plaintiff’s and defendant’s expert medical reports are usually stipulated to be admissible. This generally saves money for the both the plaintiffs and defendants. Day two consists of jury selection and the trial. The presentation of evidence and arguments made by the attorneys are governed by strictly enforced time limits to ensure that the entire case is presented and the jury gets the case the same day for deliberation.

Read moreSummary Jury Trials: Justice or Just Fast?

Biomechanics is the study of how physical forces affect and influence living organisms. It is said to combine mathematics, physics, chemistry and biology. Experts in this field have served in personal injury cases in a variety of factual scenarios including trips and falls and most predominantly now in motor vehicle cases. This entry was prompted by a recent article published in the New York State Bar Association Journal November/December 2010 edition titled The Rise of Biomechanical Experts at Trial which discusses and promotes the increase in the use of biomechanical engineers by defense attorneys in defending automobile cases.

Although the article we reference highlights the trend of retaining experts of this type specifically at the time of an impending jury trial, we note that the warning signs of the involvement of such experts are appearing earlier in the litigation. Within the last 8 months I received pre-suit correspondence from adjusters claiming that the soft tissue injuries claimed by my client were not causally related to the subject low impact collision “from a biomechanical standpoint.” Some plaintiff’s attorneys have reported that they have received reports from defendant’s biomechanical engineer as exhibits in summary judgment motions on the serious injury threshold question served upon completion of depositions. The purpose of the expert disclosures in the motions and trial testimony by the expert is the same. The expert is retained to argue that the injury producing mechanisms were not present in the accident. That is to say, the forces exerted upon the injured body parts were not of a sufficient magnitude to cause the injury alleged by the plaintiff based upon the expert’s knowledge of human anatomy and a mathematical assessment of the forces involved in the collision.

For the injured plaintiff and her attorney this is just one more obstacle to consider in the quest for justice. It would seem that there would be no rise in the use of biomechanical engineers if the use of same did not create a benefit to defense counsel and yet it begs the question: Is it the expert or is it the case?

Read morePreparing For Trial: Bio Mechanical Breakdown