Vol. 14

September 2006

In this issue:

Bobby Lee Cook's Criminal Defense Success Done without Jury Consultants

News from the Courthouse — Mediation/Arbitration Updates
Court Dismisses Lawsuit for Failure to Mediate. . . . . . . By Pat Siuta

Henning Neutral Profile
Robotics to Race Cars: Keeping up with Teenagers

Henning and Our Neutrals in the News

Bobby Lee Cook’s Criminal Defense Success Done without Jury Consultants

Georgia attorney Bobby Lee Cook of Cook & Connelly has received many accolades over a long and distinguished career. Handling both civil and criminal cases, he is best known as the dean of Georgia criminal defense attorneys. Cook has defended hundreds of capital cases and been successful in about 90% of them. In fact, he holds the U.S. record for the most capital cases successfully defended. On a lighter note, he was the model for Ben Matlock on the Andy Griffith Matlock television series. Many of his cases were used as cases on the television series.

An interesting element of his approach is his lack of use of jury consultants, even in the most high profile cases.

“I have never used a jury consultant,” says Cook. “That’s not to be critical of those who do. I just grew up before jury consulting was known.”

According to Cook, jury selection is one of the most important features of a case. “The ability to assemble an unbiased and fair group of individuals is critical,” he adds.

Cook relies on his own instincts to determine a potential juror’s suitability, sometimes even ignoring the voir dire responses. “I use my own judgment and perceptivity. You just have to figure it out for yourself. Sometimes a prospective juror will answer the voir dire questions exactly as you would wish for your case but you have a wrenching feeling in your gut, irrespective of those answers. And in that case, you’d better strike.”

Cook recognizes that his approach is somewhat controversial, yet in his case, it’s been a proven success. “I don’t believe there are any scientific principles that can be used to impanel a jury. I know a lot of people disagree with that. However, I just feel it is highly individualized,” he says.

In fact, Cook is a bit nonplussed when asked the source of his overall success. “I guess I can attribute it to a little bit of luck and a whole lot of preparation. There’s no one thing.”

In addition to his criminal and other trial work, Cook uses mediation extensively. To determine whether a case is ripe for mediation, he uses three criteria.

“First you have to have both lawyers reaching out for a reasonable settlement. That’s a fundamental step, the precedent for a successful mediation,” says Cook.

“Secondly, the case should be of some reasonable importance where there is a substantial dollar figure. I don’t pursue mediation if it’s a whiplash case with a possible settlement of $10,000-$15,000 on the outside.

“Lastly, you need a good mediator. That is the reason I consistently use Henning Mediation. I’ve used a large number of their mediators, all of whom were highly competent and skilled at getting to a settlement that worked for both sides.”

News From the Courthouse - Mediation/Arbitration Update

Where the parties have provided in their contract that mediation will be used to resolve future disputes, a party’s failure to mediate may lead to dismissal of its lawsuit. Crandall v. Grbic, Kansas Court of Appeals No. 94,846 (July 14, 2006). In Crandall, the plaintiffs purchased a home with the assistance of a realtor, who served as their agent. The purchase agreement contained a provision stating that the parties agreed to mediate any disputes arising out of, or relating to, the purchase agreement, including any representations made by the buyer, seller, or real estate agent. After purchasing the house, the plaintiffs sued their realtor claiming misrepresentation, fraud, and violation of the Kansas Consumer Protection Act. The defendant realtor moved for summary judgment on a number of grounds, including that the plaintiffs’ failure to attempt mediation before filing suit precluded their claims. After the defendant filed the motion for summary judgment raising mediation as an affirmative defense, the plaintiffs offered to mediate, but the defendant refused. The court granted the defendant’s motion for summary judgment and the plaintiffs appealed. The appellate court rejected the plaintiffs’ argument that because they offered to mediate after defendant raised the issue in his Motion for Summary Judgment, the defendant’s motion should be dismissed. The court said that to allow the plaintiffs to attempt mediation to avoid summary judgment after the defendant had devoted time and money defending the plaintiffs’ suit would be unreasonable. Defendant was entitled to summary judgment because of the plaintiffs’ failure to timely seek mediation.

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Henning Neutral Profile - Pat Siuta

Daughters Katie, 17, a senior in high school and Shannon, a 10th grader, are both active in the unusual and challenging world of robotics. In addition, Shannon, is involved with a group that designs Formula One model cars. The cars, manufactured of wood and powered by carbon dioxide, are wind-tunnel-tested and raced competitively on an international scale. Race Team Manager Shannon’s mom accompanied the team to England for the world competition.  This past July, Shannon’s team, after winning the Georgia competition, was invited to race at the U.S. Grand Prix. According to Siuta, the high point for the Georgia team was beating the professional Ferrari team, which had also submitted a car.

Following a bachelor of science degree in psychology and political science from Purdue University and a law degree from the University of Notre Dame, Siuta has had a broad career – attorney, professor, author, consultant and neutral. She currently directs and teaches Henning classes in mediation and arbitration. Among Siuta’s accomplishments is helping to draft Georgia’s Motor Vehicle Warranty Rights Act (The “Lemon Law”).

 Of all of these activities, she most enjoys mediating and training others. “I really enjoy the challenge of mediation where you are working with people who couldn’t reach a settlement on their own, and using a combination of strategy and people skills, you bring them to a successful conclusion.

“I often get asked why I share my mediation strategies with others and essentially, train my competition. But I enjoy mediating so much that I love introducing others to the process and helping them become successful,” says Siuta.

Siuta has trained about one-third of Henning’s panel of neutrals as well as judges and attorneys across the country. She has also trained insurance companies, corporations and law firms in how to be successful at mediation. 

Siuta’s husband, Kevin O’Shea, is a station manager at Cobb Educational Television. When they aren’t helping the girls pursue their unusual hobbies, they try to get in some sailing on their boat docked in Florida. However, they haven’t had many sailing opportunities of late. “We stay pretty focused on the girls in what spare time we have. As the girls get older, I’m starting to go through separation anxiety already,” admits Siuta.

For more information on Pat Siuta, go to www.henningmediation.com.

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Henning and Our Neutrals in the News

Henning Neutral Rex D. Smith will be speaking on "Winning Mediations with Ethics" at the 25th Insurance Law Institute, September 28-30, 2006 at the King & Prince Beach & Golf Resort, St. Simons Island, Georgia.

“Winning in Mediation” is the topic of Henning Neutral Terrence Lee Croft’s upcomingspeech at an Institute of Continuing Legal Education (ICLE) seminar Oct. 27, 2006. Croft also recently attended the annual meeting, held this year in Bermuda, of the American College of Civil Trial Mediators, of which he is a Fellow. As a member of the Board of Governors of the State Bar of Georgia, he will attend the Fall meeting of the Board Sept. 15, in Athens, Ga.

Art Glaser has recently been inducted as a Fellow in the American College of Civil Trial Mediators along with fellow Henning mediators Terrence Croft and Bill Goodman.

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