Daily Business Review: Social Science Looks to Demystify the Jury Selection Process

The use of jury consultants who use empirical analysis to find out how a firm’s case will play in front of a jury before a trial ever begins has become standard practice — especially in high-stakes litigation.

By Dylan Jackson | February 20, 2019 at 06:09 PM

Screen Shot 2019-02-25 at 2.05.43 PMJury selection has long been a cryptic process, and every trial attorney has a juror war story and list of voir dire taboos.

Some have called it pure guesswork. Others have described it as a combination of psychology and the dark arts.

But Marjorie Sommer, co-founder of the Florida trial consulting firm Focus Litigation, believes lawyers have too many preconceptions about jury selection. She and her partner Geri Satin say the process need not be a mystery.

“It’s a numbers game,” Satin said.

Through qualitative and quantitative analysis (Satin has a doctorate degree in legal psychology from Florida International University) and with the help of a thousand focus groups, mock trials, and real-world verdicts, Sommer and Satin counsel law firms, companies and even government agencies about what type of jury could help their case.

Over the past two decades, the use of trial consultants has become ubiquitous in high-profile cases. In 1983, the American Society of Trial Consultants had less than 20 members. Today, the organization boasts nearly 300. While in its infancy, the industry was viewed with much skepticism. But as the digital era has matured, data analytics has grown more sophisticated, transforming jury consulting into a legal industry that is accepted and even embraced.

Much of their job, Satin said, is to demystify the jury selection process and use their combined 30 years of legal experience to provide actionable recommendations based on their findings…

“Here we are, all lawyers, and we’re trained on the legal issues. We’re not really trained on the social science part of it,” said Bruce Katzen, founding partner of Miami-based boutique litigation firm Kluger, Kaplan, Silverman, Katzen & Levine. “It’s good to hear how ‘real people’ react.”

After both sides argue their case, the mock jury deliberations are recorded for analysis and a verdict is rendered. Satin and Sommer then compile a report that can run hundreds of pages, stuffed with recommendations, quantitative analysis that uses a juror’s responses to specific questions to correlate a verdict. Advice to clients could include formulating precise questions for voir dire, pointing out what juries perceived as weaknesses in a case, and highlighting the most effective visual aids.

But their job isn’t only about jury selection. Satin and Sommer say some of their biggest “wins” come before jury selection even begins. If an insurance company has $500 million in exposure, and the focus groups and mock juries are returning consistent findings against their client, they will advise the client to work on a settlement instead of recommending a trial. If the company settles for $50 million instead of losing big in the courtroom, Satin and Sommer see that as a victory.

“One of the most reliable things we give is a reality check,” Sommer said.

Read the full article in the Daily Business Review. 

 

The Real Deal: JMH Development must turn over remaining interest in 300 Collins: judge

The Real Deal features Kluger Kaplan’s recent win on behalf of PSB Collins LLC.  

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A judge has ordered Jason Halpern’s JMH Development to turn over its remaining interest in Three Hundred Collins to its silent partner, amid ongoing litigation.

The five-story, 19-unit boutique condo at 300 Collins Avenue in Miami Beach’s South of Fifth neighborhood was completed this summer, and has just one unsold unit remaining: Penthouse 2 priced at $5.3 million. JMH must turn over that unit and any cash in the bank to its partner PSB Collins LLC, led by Dhruv Piplani, according to an order signed by Miami-Dade Circuit Judge William Thomas.

Piplani’s attorney Marko Cerenko said Piplani’s entity is also entitled to the cash proceeds of the $1.6 million sale of unit 3-A, which was purchased just before the lawsuit went to trial last week. The value of the total owed to Piplani’s entity is estimated at $6 million to $7 million, said Cerenko, a partner at Miami-based Kluger, Kaplan, Silverman, Katzen & Levine…

Continue reading in The Real Deal. 

Anatomy of a Case: Kluger Kaplan Sets New Standard for Upholding Residential Real Estate Contract

Case: Diaz v. Kosch, Third District Court of Appeal of The State of Florida

Thanks to the arguments of Kluger Kaplan attorneys, Alan Kluger and Ashley Frankel, along with Scott Kravetz of Duane Morris, the Third District Court of Appeal of The State of Florida recently set a new standard for strictly upholding the provisions of the Florida Bar’s standard contract for real estate home purchases.

AJK High ResolutionBackground:

The case began in 2012 with a real estate transaction gone bad.  Coral Gables homeowners, David and Tiffany Kosch, entered an agreement with Miami attorney, Richard Diaz, to sell their home “as-is” for nearly $2.8 million.  The purchase agreement followed the standard form for a real estate contract established by the Florida Bar.

As part of the purchase agreement the sellers completed a disclosure statement affirming, among other things, that they had no knowledge of improvements constructed in violation of applicable building codes, without necessary permits, or with any open permits not closed with a final inspection to the property or the presence of toxic substances. The prospective buyer deposited $50,000 in escrow for the purchase with a further deposit of $235,000 due when the 10-day right of inspection and right to cancel period expired.

AFrankel232During the 10-day inspection/termination period, the buyer raised concerns regarding unpermitted renovations; however, they did not negotiate an extension of the inspection period or terminate the transaction. On the final day of the right to terminate period, the buyers deposited the additional $235,000 in escrow, per the agreement, but also threatened legal action against the sellers.

Shortly before the closing date on the purchase, the buyers terminated the transaction demanding return of the money deposited in escrow. The buyers also filed a lawsuit against the sellers and brokers asserting claims for breach of contract, conversion, fraud in inducement, fraud in concealment, negligent misrepresentation, and conspiratorial fraud, with a claim for punitive damages asserted as well. The buyers also alleged the property contained radon contamination requiring extensive remediation.

The Ruling:

The litigation over the failed sale was extensive, lasting more than four-and-a-half years during which the buyer filed multiple motions for punitive damages. Ultimately, Judge Eric Hendon of the Circuit Court for Miami-Dade County issued a summary judgement in favor of the sellers, ruling the buyers did not properly exercise their right to terminate in the period allowed by the contract, and so were not entitled to a return of the money held in escrow. Additionally, the judge awarded the sellers attorneys fees in the case. In June 2018, the Third District Court of Appeal affirmed Judge Hendon’s decision.

The court ruled that the allegations in the plaintiffs’ complaint were contradicted by the language in the “As Is” Residential Contract for Sale and Purchase, which included non-reliance provisions. The court further ruled that the buyers could not attempt to get around these provisions by effectively creating a “conditional tender” of the second deposit, which would make the sellers liable for repairs, permitting issues and other circumstances.

Impact:

This was a landmark decision that reinforces the strict, but enforceable provisions in contracts governing residential real estate transactions. It affirms that purchasers and sellers must carefully review and comply with the letter of each provision in the Florida Bar’s standard form.

Parties in a home purchase must adhere to the wording of the “As Is” contract, which states that once a deposit is in escrow, the purchaser cannot change the terms of the agreement, and must either move forward or walk away. Purchasers are not allowed to create a “conditional tender” with a second deposit to reserve their right to purchase but hold the sellers liable for repairs.

The Real Deal: Trump Doral to pay tenant’s legal fees tied to lease dispute

Doral resort will have to pay more than $2.5M in legal bills.

Trump National Doral Miami is running up an expensive tab in a long-running legal war it’s losing against Florida Pritikin Center, a rehabilitation spa leasing space at the luxury resort.

On Wednesday, the Third District Court of Appeal affirmed a 2017 final judgement ruling by Miami-Dade Circuit Judge Jose Rodriguez against Trump Endeavor 12, the entity that owns the Doral golf resort managed by Donald Trump Jr…

…By the time the bills are tallied up, Trump Endeavor will have to pay more than $2.5 million in attorney fees in its failed bid to evict the spa from a 40,000-square-foot-space at Trump Doral, said Pritikin’s lawyer, Philippe Lieberman, a partner with the Miami firm Kluger Kaplan Silverman Katzen and Levine.

“The exact amount will be determined by Judge Rodriguez in the next couple of months,” Lieberman said. “Our client is very happy. He is looking forward to putting this behind him and recovering his legal fees from Trump.”

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Trump Endeavor attorney Bruce Rogow did not respond to a request for comment.

Pritikin sued Trump Endeavor in June 2015, alleging breach of contract. According to court documents, Pritikin had a lease with the prior owner dating back to 2009 that was still in effect when Trump Endeavor purchased the golf resort in bankruptcy court three years later. The company affirmed the lease and Pritikin was forced to remain while the Trumps renovated the property, the lawsuit states.

“At that point, the property was in disrepair and bad condition,” Lieberman said. “Trump would not reduce the rent or allow Pritikin out of the lease. When the lease was up for renewal, it coincided with when construction was coming to a close. Trump wanted to bully us off the property.”

Pritikin’s lawsuit claims that Trump tried to increase a special room rate for Pritikin clients by 583 percent, would not replace worn-out refrigeration units in the spa, attempted to reject the tenant’s option to extend the lease until 2019 and tried to improperly terminate the agreement. “We resisted,” Lieberman said. “We pushed back.”

In February 2015, Rodriguez granted Pritikin declaratory relief, which forced Trump Endeavor to honor the lease, as well as decrease its clients’ room rates by 15 percent. The developer won a subsequent appeal to the Third District Court, which sent it back to Rodriguez to provide a better explanation as to why he ruled in Pritikin’s favor, Lieberman said.

“He did that in 38-page judgement filed in June 2017,” Lieberman said. “Trump appealed that judgement and the appellate court ruled in Pritikin’s favor this Wednesday.”

Read the full story in The Real Deal. 

Daily Business Review: Litigator Todd Levine’s Passion for Music, Art, Math and Science Helps in the Courtroom

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By Lidia Dinkova

May 4, 2018

Litigator Todd Levine has all the professional background common among successful litigators: A law degree, years of experience, mentors who guided him when he embarked on his career and a dedication to the job.

But Levine has skills outside the legal field that he credits for his success as well.

Levine is an avid musician who has played guitar since he was about 10 years old, he said. He also draws, plays a bit bass guitar and some keyboards, and has a penchant for math and science.

This combination of creativity and a gift for exact sciences have allowed him a more “out-of-the-box” approach to litigation, he said.

Take as an example that time he was in a mediation, and the mediator walked in holding new evidence just presented by the other side that at first appeared to hurt Levine’s case.

But Levine turned things around, he said.

“I had never seen those documents before but I pulled the documents and, frankly I don’t remember what I saw in them but in a matter of five minutes … I found something in one of the documents. I was able to point to this particular aspect of the documents, and I said, ‘This is the reason I will win this case.’ And the mediator’s jaw dropped. He couldn’t believe that I came up with such a quick response that turned the tables on the other side so quickly. It was because I was able to see something the other side did not see,” Levine recalled.

Continue reading in the Daily Business Review.