Neutral Analysis Q&A, Part 1: Understanding the Process and the Value of an Outside Perspective

We are having a discussion today with Clarence L. Pozza, Jr., Esq., one of the original four JAMS neutrals in the Detroit Resolution Center, which opened in 2017. He is a Fellow of the American College of Trial Lawyers, and his more than 50 years of experience includes jury and bench trials, significant motions, jury science, complex arbitrations, regulatory cases, appeals, mediation, investigations and, importantly, neutral analysis. Mr. Pozza has a deep understanding and admiration of neutral analysis based on this private practice history, his counseling of clients and the last 10 years with JAMS, where he has served as a panel member for matters requiring neutral analysis.

In Part 1 of this two-part discussion, we’ll look at what neutral analysis is, the differences between single-party and multiparty neutral analysis and several ways single-party neutral analysis can be used to test case strategy and presentation.

Q: Would you please provide a definition of “neutral analysis.”

A: Neutral analysis, sometimes called neutral evaluation, is a flexible process in which a single party or multiple parties retain a retired federal or state judge, a trial attorney or transactional attorney, or a panel to conduct an analysis and render an evaluation of the likely outcome of a dispute, as well as present commentary and critiques.

The panel can offer a clear-eyed assessment based upon their unique individual experiences. The panel provides a direct, unvarnished view and an accurate and well-reasoned evaluation or critique of the case.

The quality and experience of the panel, when coupled with a well-thought-out approach, offer a unique opportunity.

Q: At a high level, please explain the differences between single-party and multiparty neutral analysis.

A: In both, the dispute may be pre-litigation or already in litigation. It may also be pre-mediation or post-mediation. Beyond that, there are significant differences between the two.

In single-party neutral analysis, a party usually seeks an analysis and evaluation of the merits of its position and the likely outcome of the case. This assists the party in deciding whether to proceed. In addition, the party seeks information that assists in the development of its case presentation. The panel critiques, predicts and analyzes a party’s themes and strategy, its case organization, the legal and fact issues, case dispositive motions, fact and expert witnesses and testimony, evidentiary issues, remedies and damages, exhibits and demonstrative evidence, the judge or jury, jury science, preservation of appellate issues, the likely appellate judge or justice views and counsel dynamics. All of this is intended to sharpen the party’s presentation.

Multiple-party neutral analysis is different. The parties present to a panel and seek an analysis and evaluation of the merits, a “call” on the outcome of the case. An indirect benefit to both parties is a greater understanding of the quality of their respective presentations. The primary focus is a panel evaluation of the likely outcome or results, which then serves as a starting point toward resolution.

Q: What was your first single-party neutral analysis?

A: My first experience was while I was engaged in private practice and long before I joined JAMS. We arranged for the former chief justice of the Michigan Supreme Court to conduct a neutral analysis of a potential appeal. Counsel and the client were convinced they had three “bulletproof” arguments and had decided to go forward with the appeal. The former chief justice acknowledged that the three legal arguments appeared to be strong and were “stacked” correctly in terms of importance. However, he then explained that the appeal would likely be lost with a predicted 5–2 adverse decision. His years of experience deciding cases as a justice and his experience with the other justices gave him insights that counsel and their client simply did not have. He understood policy considerations of importance to the individual justices and that aspects of their prior decisions, while perhaps not directly on point, would be important in their decision-making. Wisely, he emphasized that an adverse decision would constitute binding precedent with which the client would have to live. The client and counsel wisely decided not to file the appeal.

Q: How about a few other examples?

A: Since joining JAMS, the Detroit Resolution Center has had a variety of single-party neutral analysis engagements.

Judge Gerry Rosen and I were panel members in a case involving a closely held business and allegations of shareholder oppression. An experienced business litigator with extensive trial experience asked us to evaluate the matter, predict the outcome and respond to a series of hypothetical questions about alternative case presentation options. We were provided with a concise statement of facts, descriptions of the two shareholders and one appellate case decision. The process was efficient and took one day. We were asked to evaluate separately, and we provided our individual predicted outcomes and responded to the questions. This case demonstrates that neutral analysis can be structured to address budgetary constraints.

Judges Cox, Alexander and Morris conducted a single-party neutral evaluation. A unique aspect of this engagement was that the party was simultaneously making the presentation to multiple jury science panels in a combined manner.

Judge Cox and two other retired judges participated in a neutral analysis consisting of a dry run of the direct- and cross-examination of witnesses for an upcoming trial.

These examples illustrate how single-party neutral analysis can be applied to very different situations, from crafting an appellate strategy to preparing for trial, and tailored to the needs of the particular matter. In Part 2, we’ll turn to multiparty neutral analysis, including its use in complex disputes, how it differs from mediation and what parties should consider when selecting a neutral or panel.