Civil Experiment Ignores the Obvious

A judge dismisses the human variable with an advisory jury

Disputes -- even legal battles -- over real estate transactions are far from unique in South Florida's out-of-control market. So when real estate broker Elio Rodriguez sued developer Wayne Rosen over a $1.4 million commission he says he was bilked out of, it wasn't news. But State Circuit Court Judge Ronald Friedman, who is presiding over the case, decided to take a novel approach toward encouraging the parties in the lawsuit to settle.

"There aren't many South Florida judges who do this," Friedman says. "I believe it is a time-saver. That is, instead of a two-week trial, you go to a half-day advisory jury."

This tactic -- almost unheard of locally, though Friedman says it is common practice elsewhere -- involves empaneling a jury as if it would be for a trial and then having each attorney present an hour-long argument summing up his or her case.

Those seated in this instance heard that the burly and affable Rodriguez thinks Rosen befriended him, made use of his services to purchase two properties in 2004, and then ditched him rather than pay a large commission. Rosen's attorney, Alice Hector, did not return calls for comment, but has claimed in court it was Rodriguez who took advantage of the friendship by trying to cash in on two purchases he had no part of.

Friedman, who spoke with New Times about advisory juries but would not comment specifically about the Rodriguez case, asked the jury for a verdict. "It gives [attorneys] an idea of how a jury might handle a case," Friedman says. "And it might encourage them to settle rather than go to a two-week trial."

The jury found for Rodriguez and said they would have awarded the full $1.4 million he was seeking. The verdict, however, was nonbinding. Friedman says any advisory jury's ruling is going to be purely academic, intended to stimulate out-of-court negotiations.

"Any decent settlement is better than taking a risk on six people off the street," says Rodriguez's attorney, Richard Brodsky of Squire, Sanders & Dempsey. Brodsky has never encountered an advisory jury before. "It's the kind of thing that jury consultants or trial consultants do sometimes, mock juries and that sort of thing, but I've never had to deal with it in the courtroom before."

In this case, however, no settlement was reached, leading to an alternate outcome: Taxpayers will shoulder the burden of a trial in addition to the expense of bringing in new jurors. The original jurors were dismissed.

Friedman says he weighs the cost of possibly wasting time and money against possibly dissuading a trial.

"You really take a chance with a jury," Friedman says. As an example of the vagaries of jurors, Friedman points to a case he presided over involving a sailor injured while working. The sailor sued his employer, a shipping company. "About two-thirds of the way through the trial I had a mistrial," Friedman says. "I said, 'Okay, members of the jury, you're now an advisory jury.' I asked them for a verdict, and after a brief time they came back six to zero that the shipping company had done nothing wrong."

No settlement resulted, however, and the case went to trial again.

"This time the jury found in favor of the plaintiff to the tune of something like three million dollars," Friedman says. "Now the only difference was a different set of jurors. So I always tell attorneys that story and ask them which jury they think they're going to get."

But if one jury is unlikely to do the same thing as another, what's the point?

"It's fun to have had that experience, but it's purely ephemeral," Brodsky says.

Friedman thinks advisory juries might become more common in South Florida's courts. "I think it makes the system more efficient," Friedman says. "The caseload is so overwhelming that anything you can do to streamline it helps."

 
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