Mediation Pitfalls : Avoid them when you can or Fix them when you can’t

Mediation in Florida is a decision event, not just a docket event.

Florida’s court ordered mediation framework is designed to encourage a real settlement conversation while parties can still control the outcome. When lawyers treat mediation as a procedural checkpoint or just something that must be done in the early stages of a case, the session predictably becomes performative and ineffective. The result is often an “impasse” that leads to additional litigation and costs that could have been avoided. These cases will frequently settle, but later in litigation after additional costs and time are spent- that could have been avoided. Florida courts and legal commentators have long emphasized that mediation is party driven, and that “impasse” is not the only off ramp when the room is close to a settlement but still stuck in certain positions[1]. While there are common mistakes and problems that occur in mediation, there are also solutions to these issues that can still lead to a productive settlement.

The 1st and most common mistake is arriving without a clear understanding of what it will take for a party to settle or without the people who hold the authority to settle.

In Florida civil cases, parties and their required representatives are expected to attend with authority consistent with the court’s order and the mediation rules. When the “real” decision maker is absent, or authority is limited to a number that cannot move past a certain point, the session becomes an exercise in futility. The parties and/or representatives at the mediation can no longer truly continue to negotiate as they are limited. Florida appellate courts have repeatedly upheld sanctions for failure to appear at mediation without good cause and have treated “appearance” and compliance as serious obligations, not just formalities. See Fla. R. Civ. P. 1.720 (2026); Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001);  Physicians Protective Tr. v. Overman, 636 So. 2d 827 (Fla. 2d DCA 1994); Alvarez v. Citizens Prop. Ins. Corp., 325 So.3d 231 (Fla. App. 2021). Even technical mistakes such as filing a certificate of authority untimely can lead to sanctions but not necessarily a dismissal. See H & R Block Bank v. Perry, 205 So.3d 776 (Fla. App. 2016).

The practical takeaway from a review of these cases is simple. If authority is complicated, have a plan at the ready: Follow the rules as to what may be required, confirm who is attending and what authority they hold, and how additional authority will be obtained if needed.

The 2nd most common mistake is negotiating without a valuation model that the client understands.

Parties cannot and do not settle what they cannot value or understand. This shows up in every practice area, but it is especially acute in personal injury, employment, construction, property damage, and commercial cases where risk assessment depends on incomplete facts, competing experts, and subjective facts such as juror temperament or social influences. Mediation literature and research have noted that principled negotiation works best when parties separate people from the problem and rely on objective criteria rather than emotion or escalation.[2] That core framework remains the most practical antidote to positional bargaining in a Florida mediation room.

The 3rd mistake is ignoring Florida’s confidentiality and privilege structure, then trying to litigate around it later.

Florida’s Mediation Confidentiality and Privilege Act provides broad confidentiality and privilege protections for mediation communications, with statutory remedies for knowing and willful violations.[3] Florida court decisions also explain why this protection exists and why it is continually enforced in Florida courts. Mediation “could not take place” if litigants feared that statements made during mediation would later be used as admissions against interest when settlement fails. See DR Lakes, Inc. v. Brandsmart U.S.A. of W. Palm Beach, 819 So. 2d 971 (Fla. 4th DCA 2002); Sun Harbor Homeowners’ Ass’n., Inc. v. Bonura, 95 So.3d 262 (Fla. App. 2012). This matters in practice. If a case turns on alleged mutual mistake, misrepresentation, or coercion, counsel must evaluate in advance what evidence will be available outside the confidentiality barrier. The instinct or desire to “prove what happened in mediation” is often legally unavailable or strategically self-defeating in Florida.[4]

The 4th mistake is leaving mediation with a deal “in principle,” then discovering it is not enforceable.

Florida requires endurance and discipline at the finish line of a mediation. Parties regularly assume that emails, term sheets, or handshake agreements may be enough to enforce an agreement allegedly reached at mediation. A settlement agreement is different from a release, final judgment, or other dismissal documents. The settlement agreement memorializes, in writing, the terms that the parties agree on to reach a resolution of the dispute in mediation. While the settlement agreement may reference other terms that must be met after mediation, it must memorialize the key terms agreed upon in mediation and it must be signed by the parties for it to be enforceable. Florida appellate courts have been clear that mediated settlement agreements must comply with the procedural requirements applicable to mediation settlements. Case law on this issue is also instructive. In Parkland Condo. Association, Inc. v. Henderson, the court held the settlement unenforceable because it resulted from mediation yet lacked the required signatures under the rule.[5] In family cases, mediated settlement agreements are also frequently attacked after the fact, often based on pressure narratives, incomplete disclosure, or buyer’s remorse. Florida courts routinely analyze whether the agreement should stand, and whether the challenge is supported by legally sufficient grounds rather than regret.[6] The practical rule to follow is to come into mediation with a draft settlement agreement or perhaps terms that a party wishes to have in it so you have it ready for review if you reach a settlement. Then, if you reach a deal in mediation, you are ready to reduce it to a complete written agreement that the parties all agree to and obtain the signatures required by the governing rule before anyone leaves. This is the safest and most effective way to avoid the dreaded “settlement remorse” which can undo carefully negotiated verbal agreements after the parties have left the mediation.

The 5th Mistake: When discussions are failing, Florida lawyers can use “adjournment” as a way to avoid “impasse.” Sometimes, a little bit of time can make a world of difference.

Florida’s mediation culture sometimes treats “impasse” as a clean ending, but it is not always the best ending. “Adjournment” or temporarily pausing the mediation can give the parties a bit of breathing room and time to review additional options. See Fla. R. Civ. P. 1.7120; Fla. R. Civ. P. 1.710(a). The most efficient way to use this option is to have a structured adjournment with a written continuation plan and a set ending date or time. That plan can identify what information is missing, who will provide it, and by what date. It should also be confirmed whether the parties will reconvene for a shorter second session with parties present, whether the mediator will conduct follow-up caucuses by phone or video, and whether last offers will remain open for a defined window. Adjournment can work when there is a clear end to additional efforts for negotiating. Another similar option – rescheduling or continuing the mediation to an additional day and time with parties present- is also often superior to declaring impasse when the barrier is fixable within days or weeks. Scenarios where this is possible include a pending expert opinion, lien confirmation, a coverage position, a key corporate approval, or final financial disclosures. Sometimes, once information like this is secured, a settlement is more likely. Thus, a continuation of the mediation can result in a more likely chance of settlement.

The hardest truth: A rushed ending can result in continued or future litigation.

If a case does not settle, the way it ends matters. If a case does settle, the way it is documented matters more. Florida courts have reversed overreaching sanctions in the mediation context when the trial court’s response did not fit the transgression, which is another reminder that mediation is procedural, but it is not casual. See H & R Block Bank v. Perry, 205 So.3d 776 (Fla. App. 2016). And when parties breach mediated settlement terms, Florida appellate decisions recognize that sanctions and enforcement mechanisms depend on the procedural posture and the governing rules. See Cox v. Great American Ins. Co., 88 So. 3d 1048 (Fla. 4th DCA 2012).

The Florida mediation mistakes and problems that cost the most are rarely about a difficult or stubborn opposing party. They are usually preventable issues: lack of authority, valuation ambiguity, client misunderstanding, unenforceable agreements, and an avoidable rush to “impasse” when an adjournment or reschedule would have preserved momentum and produced a deal. At Endeavor Mediation, we have experience in dealing with these issues and can assist in parties reaching a settlement even when it looks impossible.

 

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[1] See generally Fran L. Tetunic, Mediation Myths and Urban Legends, Fla.B.J., May 2008, Vol. 82, No. 5 at 52; https://www.floridabar.org/the-florida-bar-journal/mediation-myths-and-urban-legends/

[2] The Program on Negotiation, Harvard Law School, “What is Principled Negotiation?”; https://www.pon.harvard.edu/tag/principled-negotiation/; Fisher, Roger, William Ury, and Bruce Patton. 2006. Getting to Yes, 2nd ed. New York, NY: Penguin Putnam

[3] § 44.401-406, Fla. Stat. (2025) ; https://www.flsenate.gov/Laws/Statutes/2025/Chapter44/All

[4] Maria S. Cohen, The Mediation Privilege, Fla.B.J. April 2013 Vol.87, No. 4 at 14.

[5]See Fla. R. Civ. P. 1.730 (2026); Parkland Condo. Ass’n., Inc. v. Henderson, 350 So.3d 484 (Fla. App. 2022); Dean v. Rutherford Mulhall, P.A., 16 So.3d 284 (Fla. App. 2009); Gardner v. Wolfe & Goldstein, P.A., 168 So.3d 1281(Fla. App. 2015); Mastec, Inc. v. Cue, 994 So.2d 494 (Fla. 3d DCA 2008); Fla. Stat. § 44.404.

[6]See Crupi v. Crupi, 784 So. 2d 611 (Fla. 5th DCA 2001); Gutierrez v. Gutierrez, 248 So.3d 271 (Fla. 3d DCA  2018).

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“What is the value of my claim?” Why Settlement Value Can Be Difficult to Assess in Florida Litigation and How to Resolve the Challenge

As long as I can remember, the central question in each of the cases I handled on the civil side was “What is the value of this case? What would a jury award if it goes to trial?” As a mediator, I encounter this question every day, and since none of us can truly foresee what lies ahead, the answer remains uncertain. And to add another wrinkle of complication – settlement value – can be and is different – from what a jury or a judge may ultimately award. Assessing settlement value is challenging in any jurisdiction, to be sure. Yet our beautiful state of Florida adds additional layers of complexity that experienced trial lawyers encounter daily. Venue variability, economic disparities, jury discretion, evolving statutory frameworks, and procedural pressures all shape how cases resolve in practice in each geographic area. Across personal injury, property damage, employment, and construction disputes, settlement assessment requires more than just legal analysis. It requires an understanding of how Florida litigation actually functions on the ground and how it can change daily depending on what is happening in this state.

Florida is not a uniform litigation environment: Outcomes can vary significantly depending on where a case is tried. After not only having lived in various parts of this state, but also handled matters venued throughout its various and vastly different counties – it is a true statement to say that a case in Key Largo, FL will not be the same case in Niceville, FL. A matter venued in Miami-Dade, Palm Beach or Hillsborough may present a very different risk and valuation profile than the same case tried in Pinellas, Pasco, Escambia or Duval. Jury composition, local norms, and historical verdict patterns all influence how claims are received. In personal injury cases, perceptions of non-economic damages often differ substantially across venues. In employment litigation, attitudes toward employers, retaliation claims, and workplace policies vary by county and sometimes even by neighborhood. Construction disputes may be shaped by local familiarity with development projects, contractors, insurers, and the practical realities of large-scale construction. When settlement discussions rely on verdicts or expectations drawn from dissimilar venues, expectations can drift unless those differences are addressed directly.

Jury discretion further complicates settlement assessment in Florida: Jurors retain broad authority in determining damages, assessing credibility, and weighing expert testimony. In personal injury matters, even carefully developed medical causation evidence may be discounted or amplified depending on how a plaintiff is perceived. Property damage cases often turn on competing expert opinions regarding scope, causation, and repair methodology, with outcomes driven less by technical precision than by which narrative resonates most. Employment cases frequently hinge on credibility and storytelling rather than strict legal compliance. Construction disputes can involve complex schedules, change orders, and defect causation that are difficult for juries to fully absorb or understand, increasing outcome variability. Strong advocacy does not eliminate this uncertainty. It exists alongside it.

Florida’s statutory and procedural landscape also plays a meaningful role: Recent changes in comparative fault standards, attorney’s fee provisions, notice requirements, and presuit obligations continue to affect exposure and leverage, particularly in personal injury and property insurance litigation. In property damage cases, coverage disputes, appraisal outcomes, and policy interpretation can materially alter exposure well into the life of a case. Construction claims are frequently shaped by lien rights, notice compliance, and contractual dispute resolution provisions. Employment cases often involve administrative prerequisites and fee-shifting frameworks that influence risk on both sides. Settlement assessment benefits from revisiting these factors as cases evolve rather than assuming early evaluations remain fixed.

Emotion and personal investment are ever-present in Florida litigation: Injured plaintiffs may experience settlement discussions as failing to reflect the full impact of their injuries and lived experience. Florida’s expansive attorney advertising environment can also further shape expectations by anchoring values for claimants and jurors that differ sharply from how defendants (and insurers) assess exposure. Property owners may perceive disputes as challenges to their credibility or personal integrity. Employees frequently frame claims around dignity and fairness, not solely financial recovery. Contractors and developers may prioritize reputation, precedent, and the effect of outcomes on future business relationships. These perspectives are not only understandable, they also shape how risk is perceived and how proposals are received, particularly as litigation fatigue accumulates over time. Some Florida cases develop heightened conflict that further complicates resolution. Coverage denials, contentious employment terminations, publicly visible construction failures, and prolonged delays can intensify emotions and entrench positions. In these matters, settlement discussions may become intertwined with control, validation, or narrative dominance rather than financial exposure alone. Progress often requires attention to patience, respect, process and communication, not just numbers.

Successful settlement is the result of careful review and assessment: More reliable settlement assessment in Florida practice often comes from grounding discussions in venue-appropriate reference points and revisiting assumptions as discovery, motion practice, and expert development unfold. Addressing emotional dynamics openly, rather than treating them as distractions, allows parties to engage more constructively with risk. When discussions slow during mediation, it is frequently useful to pause and identify what is driving hesitation. Sometimes the focus has narrowed to an early number. Sometimes concerns about precedent or signaling dominate. Sometimes uncertainty about a difficult outcome has not been fully examined. Allowing space to clarify assumptions and reframe options can restore momentum without pressure.

Resolution in Florida litigation is not about abandoning principles or demonstrating weakness. It is about choosing certainty over volatility in an environment where outcomes remain inherently unpredictable. Alternative dispute resolution, particularly mediation, allows parties to evaluate Florida-specific risks and decide how much uncertainty they are willing to carry forward. Successfully navigating difficult cases requires thoughtful, deliberate strategies that meet parties and counsel where they are, with genuine curiosity about the positions they hold and the interests driving them. From that starting point, creative negotiation techniques can help loosen entrenched positions and move discussions toward a more neutral and productive space. This shift allows for meaningful dialogue, preserves party self-determination, and opens the door to options that more accurately reflect each party’s true interests. Mindset can also greatly influence success in mediation – sometimes it is important to consider “not yet” as the best option moving forward, rather than focusing on “this will never settle” or “not ever.” While one party may believe that “impasse” is the only answer after a few hours in mediation, frequently success in mediation is found after taking a short break or taking a few days or even weeks to continue exploring settlement options. I frequently compare this to a puzzle or a Rubik’s cube- keep shifting the pieces with patience and deliberation until you can find a fit that works.

When settlement value is approached as a structured evaluation rather than an all-or-nothing contest, mediation becomes an opportunity for informed, deliberate choice and durable resolution.

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How a Mediation Checklist Can Help You Stress Less and Reach A Better Settlement Faster

Atul Gawande’s The Checklist Manifesto was a revolutionary evaluation of how basic checklists and procedures can guarantee error free success time and time again.[1] Many of us may chafe at having to following a basic list of things to do, but his book makes a simple point: no matter how expert we are, a well-designed checklist helps us do the right things, in the right order, every time. In an era when our attention is scattered and the demands on our time are increasing by the minute, it is no wonder that critical errors in many fields are not only on the rise, they are increasingly becoming the norm. The legal profession is no exception and missing critical steps in a case are increasingly common. Unfortunately, these errors lead not only to increased stress for practitioners, but also to an increase in costs in the long run for not only clients, but also the professionals serving them. For this reason, following a checklist prior to mediation- whether it is basic or detailed- may not only save you from costly errors, it may also lead to a better settlement faster. The result isn’t duplicative or wasted effort- it’s fewer mistakes, clearer thinking, and better outcomes.[2]

Why Checklists and Procedures Lead to Repeated Success

Everyone wants to be successful, but why are some people and companies more successful than others? Why can some companies repeat their success over and over, while others are a “one hit wonder” that struggle or can never repeat their initial win? The secret lies not in the “flash in the pan” ideas, but in the daily grind of showing up and doing the right and the hard – and usually boring- thing over and over. There’s hard evidence behind that claim. The WHO’s 19-item surgical safety checklist, studied across eight hospitals worldwide, cut major complications and deaths significantly-proof that a short, disciplined list can change outcomes in complex, time-pressured environments.[3] Is that list boring? Sure it is. Is there temptation to skip some items? Sure there is. But studies show that repeatedly following that simple and boring list guaranteed successful outcomes. This is a concept that is repeated over and over- whether it is McDonald’s incredible success with their “Speedee Service System” or an Olympic athlete who achieves success due to their commitment to relentless practice and exercise no matter what else might be going on.[4]

Over time, many industries, from manufacturing to the military, have realized the necessity of having procedures in place to guarantee repeated success for deliverables. In Getting Things Done, David Allen also extols the many benefits of keeping to-do items on a list to be productive, instead of stressed and distracted. It frees the mind to concentrate on other issues while keeping a place for those “must get done” items.[5] Another seminal work on the value of following procedures and lists to free the mind for deep and concentrated work is Deep Work by Cal Newport. Published in 2016, this was one of the first in-depth discussions on how distraction is leading to increased error rates and the cost of those errors not only on our professional lives, but also in our personal lives.[6] Stolen Focus by Johann Hari, published in 2024, is one of the latest books on this increasingly important topic of how our attention is not only divided, but is also increasingly for sale to the highest bidder in the digital arena.[7] It appears that distraction is here to stay, and it is time to strategize both offensive and defensive plans of attack to continue to provide the best legal service possible.

Legal organizations have reached the same conclusion: “old-school” checklists streamline practice, improve teaming, and make knowledge shareable across a firm.[8] And in negotiation scholarship, robust preparation frameworks from Harvard’s Program on Negotiation show how structured pre-work creates value at the table.[9] Put simply: checklists make good lawyers not only great, but consistently successful. While mediation and arbitration are certainly different from surgery or flying an airplane, they are just as information-dense and decision-heavy. A checklist for case events such as Mediation or Arbitration keeps advocates focused on the moves that will actually move numbers or secure valuable information that can determine case outcomes. It also helps to reduce stress and limit the unknown variables that may affect the ultimate result of the case as litigation continues.

What to Put on a Mediation-Prep Checklist

So it’s clear that a pre-mediation checklist is not only helpful, but probably needed. The question becomes, what to put in that checklist? If it is too basic, you may miss key points and still end up with avoidable mistakes. If it is too detailed, it may be so onerous to follow that it will quickly be abandoned as useless. It’s beneficial to consider your working style and set yourself up for success. Thinking in modules or core concepts can help you tailor the list by case type (PI, employment, construction, commercial, insurance, etc.). Another idea is to consider whether the case could be tried in front of a judge or jury with what you have right now and whether you would win or lose? The answers to those questions can serve as a cornerstone upon which you can strategize what might be needed if the case does not resolve at mediation and whether mediation may in fact be truly your best day for that case.

  1. Core Case File & Facts
    • Pleadings, key orders, dispositive-motion posture, outstanding discovery issues
    • Brief chronology of the case and three strongest facts / three soft spots
    • Exhibits you would actually use at trial and possibly use at mediation (with page cites)
  2. Law & Risk
    • Elements, burdens, and jury instructions that really matter
    • Best case / neutral / worst case outcomes with probability ranges
    • Litigation budget vs. verdict and collection risk
  3. Numbers
    • Damages model or valuation worksheet
    • Verdict form draft
    • Interest, fees exposure, liens/Medicare/Medicaid offsets, insurance limits, coverage defenses
    • Tax or structuring considerations for settlement (annuities, QSFs, allocations)
  4. Parties, People, and Authority
    • Decision-makers who must attend (client, carrier, board designee, etc.) and their real authority
    • Confidential stakeholder concerns (reputational risk, precedent anxiety)
    • Interpreter, accessibility, or tech needs for remote sessions
  5. Offers Strategy
    • Anchors, concessions plan (what/when/why), and walk-away position(s)
    • Cross-offer contingencies (e.g., “If they do X, we can move Y”)
    • Non-monetary terms you will trade (reference letters, transition support, training, confidentiality clauses, etc.)
    • BATNA/WATNA Reality Testing
    • Your credible next steps if no deal (hearing dates, litigation budget and spend, trial posture and date)
    • Their potential next steps and how you’ll explain them in caucus
  6. Ethics & Confidentiality
    • Mediation privilege, confidentiality rules, and local practice requirements
    • Informed-consent talking points with client (process, caucus norms, mediator’s role)
  7. Mediation Summary or Brief
    1. can help mediator unlock value
  8. Logistics
    • Venue/Zoom links, room plan, whiteboard/pads, chargers, print vs. e-signature
    • Food breaks (hungry clients make bad decisions), parking, travel buffers
  9. Settlement, Term Sheet & Closing
    • Pre-drafted term sheet or settlement agreement with blanks- this can be key to avoid blowing up an almost secure settlement
    • Authority to sign; e-signature plan
    • Scope of must have terms for releases such as lien language, no admission clauses, tax language, confidentiality carve-outs, enforcement forum, etc.

Now that we have core concepts in place, how about a detailed step by step checklist that you can use for your case? Again, it depends a lot on your practice style, how your office is structured and your work habits. There are many checklist examples online, and this footnote lists some of them for your reference.[10] But if you want to continue to DIY it for your own use, here are some ideas:

How to Build a Checklist That Works

  1. Keep it short and concrete. 25 to 40 items across the modules above is plenty. Each line should be a do/verify action (i.e. “Confirm lien payoff amount and statutory basis”), not a paragraph. This mirrors why aviation and medical lists succeed: brevity + clarity.[11]
  2. Create “pause points.” Insert natural stops (pre-brief, pre-opening, pre-first offer, pre-closing) where you deliberately run the list and recalibrate.
  3. Assign ownership. Put initials next to each item (partner/associate/assistant/adjuster). Checklists fail when they belong to “everyone” and, therefore, to “no one.”
  4. Make the numbers visible. Build a one-page valuations sheet you can update live as information shifts and keep an eye on midpoints, that can sometimes signal a soft landing for both sides.
  5. Tailor by matter type. Maintain a master list and spin off variants (e.g., bodily-injury, employment, commercial lease, construction, real estate, etc.) so you don’t have to waste time and reinvent the wheel.
  6. Test in low-risk matters first. Pilot or test the checklist in routine conferences; change as needed and iterate after each use.
  7. Train the team. Bring your staff in on using the checklist and get their feedback. Change the tasks as needed.
  8. Design for the room you’ll be in. If you mediate by Zoom, add tech checks; if in person, add print/signer logistics. (Nothing kills momentum like hunting for a charger during the final move or finding out you can’t print the settlement agreement when you need to.)
  9. Close with a written settlement agreement or term sheet- always. Bring your own template and fill it as you go. Know your local rules and case law- an unsigned agreement can kill the whole mediation.
  10. Do a post-mortem. After each mediation, spend five minutes updating the checklist based on what helped or hurt. That’s how it becomes an asset of your practice, not a one-off document.

Free for Your Use:  Mediation Prep Mini-Checklist

  1. Book Mediator and confirm virtual or in-person.
  2. Confirm attendance & authority (client/insurer/board memebrs, etc.).
  3. Update case chronology + top 3 facts/risks.
  4. Consider jury instrauctions and/or draft verdict form.
  5. Valuation sheet (best/neutral/worst; fees to verdict).
  6. Liens/offsets/coverage confirmed.
  7. Confidential client brief on process & roles.
  8. Confidential phone conference with mediator if beneficial.
  9. Mediation statement sent & exhibits pared to essentials.
  10. Agenda & process agreed with mediator.
  11. First-offer anchor and concessions plan set.
  12. BATNA/WATNA scripts/plans for each caucus.
  13. Non-monetary trades pre-approved.
  14. Logistics: room/Zoom, tech, food, printers.
  15. Draft settlement or term sheet loaded with blanks.
  16. E-signature and payment mechanics ready.
  17. Press-line or confidentiality language sorted.
  18. Post-mediation debrief scheduled.

Used consistently, a checklist like this reduces preventable mistakes, sharpens strategy, and consistently provides more predictable outcomes. For a quick downloadable version, check out our Resources page above. Especially in Florida, where Case Management Orders are bringing cases to trial within 18 months, a checklist like this helps to ensure that mediation will be the best day for the case. That’s the quiet power of a good checklist.

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[1] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

[2] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

[3] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

WHO Surgical Safety Checklist, 2009; https://www.who.int/docs/default-source/patient-safety/9789241598590-eng-checklist.pdf; A Surgical Safety Checklist to Reduce Morbidity and Mortality in a Global Population, Alex B. Haynes, M.D., M.P.H., Thomas G. Weiser, M.D., M.P.H., William R. Berry, M.D., M.P.H., Stuart R. Lipsitz, Sc.D., Abdel-Hadi S. Breizat, M.D., Ph.D., E. Patchen Dellinger, M.D., Teodoro Herbosa, M.D., for the Safe Surgery Saves Lives Study Group; New England Journal of Medicine January 2009; https://www.nejm.org/doi/full/10.1056/NEJMsa0810119

[4]Christopher Klein, How McDonald’s Beat Its Early Competition and Became an Icon of Fast Food, (May 15, 2015), HISTORY; https://www.history.com/articles/how-mcdonalds-became-fast-food-giant

[5] David Allen, Getting Things Done, 2001 and 2015,; https://gettingthingsdone.com/

[6] Cal Newport, Deep Work: Rules for Focused Success in a Distracted World, 2016,; https://calnewport.com/deep-work-rules-for-focused-success-in-a-distracted-world/

[7] Johann Hari, Stolen Focus: Why You Can’t Pay Attention, 2024; https://stolenfocusbook.com/

[8] Daniel Siegel and Pamela Myers, How old-school checklists can help you better serve clients, ABA Webinar;

https://www.americanbar.org/news/abanews/publications/youraba/2017/october-2017/use-the-old-school-way-to-streamline-your-practice–make-checkli/

[9] Katie Shonk, A Negotiation Preparation Checklist, Harvard Program on Negotiation, August 20th, 2025; https://www.pon.harvard.edu/daily/negotiation-skills-daily/negotiation-preparation-checklist/

[10] John Lande, Real Practice Systems Project Menu of Checklists for Attorneys in Mediation, Center for the Study of Dispute Resolution University of Missouri School of Law, September 24, 2024; https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=2246&context=facpubs;  The Advocate’s Mediation Checklist, https://www2.mediate.com/ICM/docs/Advocates%20Checklist%20for%20Mediation.pdf

[11] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

 

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The Art and Science of Persuasion: How Trial Lawyers Win the Jury’s Mind and Heart – Part 2

Last month I discussed observations about a seminar during a recent local Bench and Bar conference hosted by the Hillsborough County Bar Association. Among the many excellent seminars, one stood out to me in particular: a panel of jurors who had served on various civil trials in Hillsborough County. They had returned for the conference to discuss what they had considered important in the trials they had participated in and why they had come to the conclusions they did. As they discussed the observations, evidence and arguments they found most persuasive in reaching their verdicts, I was reminded that success in litigation and trial is as much an art as it is a calculated presentation of the evidence available to counsel and their client. The following is part 2 of this blog post, and now we will explore how jurors are persuaded by evidence and which types of evidence are most successful in our increasingly fast passed society.

Part 2: What Kind of Evidence Do Juries Find Persuasive?

When a jury walks into the box, they bring with them cognitive shortcuts, impressions of credibility, and narrative expectations. Persuasion in a jury trial is not simply about piling on more evidence; rather, it is about how the evidence is presented, which evidence resonates most, and who presents it.

Evidence Hierarchies from the Juror’s Lens

In empirical and mock-juror studies, some evidence types consistently rise to the top of juror credibility rankings. For example, in a widely cited study, Kimberly Schweitzer and Narina Nuez found that mock jurors ranked DNA evidence as the most compelling type of proof, followed by fingerprints, weapons, crime-scene photos, video recordings, gunshot residue, and bodily fluids.[1] In this study, expert testimony and eyewitness testimony was considered the least reliable. This is fascinating, considering that many cases are developed and tried based on the evidence that witnesses, especially expert witnesses, provide. Other work shows that jurors can differentiate between strong and weak versions of forensic evidence, especially when properly contextualized (e.g. DNA matching with low error bounds).[2] However, jurors are also susceptible to overconfidence in complex scientific or forensic claims. Some research warns that jurors may equate “technical” with “true,” even when error rates or method limitations exist.[3] Moreover, the so-called “Wells effect” warns of a psychological gap: jurors may resist pure statistical or “naked probability” evidence unless it is woven into a fact narrative they can grasp.[4] In addition, the “CSI effect” jurors, influenced by popular TV crime dramas, may expect or overvalue forensic and scientific evidence—even demanding it where none exists.[5]

In short: jurors love tangible, concrete, scientific or visual evidence (DNA, fingerprint, high-quality video) built into a compelling story. But they are not strictly rational Bayesian calculators; they evaluate through narrative context, credibility, and coherence of theory and argument as presented by the attorneys.

Live Testimony and Video (or Recorded) Testimony

Live testimony and recorded (or video) testimony each carry advantages and pitfalls, and jurors respond differently to them.

Live Testimony

  • Demeanor, confidence, and presence: Jurors heavily weigh the demeanor of a live witness—confidence, eye contact, and composure. Indeed, some studies suggest jurors’ perception of witness confidence often trumps consistency in their credibility judgments.[6] But researchers caution- demeanor is a poor predictor of truthfulness. A polished liar can appear credible while a truthful but anxious witness may falter. It is worthwhile to examine the jury’s judgement hierarchies about the behavior of others during void dire to determine how strictly they will judge the credibility of a witness based on their demeanor or attire.
  • Cross-examination exposure: Live witnesses can be tested on inconsistencies, impeached, challenged on tone, and forced into unplanned responses—this dynamic can sway jurors based on how well defense or plaintiff counsel handles live cross examination. In addition, jurors must rely on their own short-term memory and note-taking; sometimes they lose track of details over the course of testimony and deliberation.

Video or Recorded Testimony

Use of video testimony or deposition excerpts can provide a level playing field (no dress, lighting, physical presence variations) and preserve consistent delivery. For witnesses who are unavailable in person (e.g. due to health, security or travel issues), video gives the jury a chance to see facial expressions, pauses, and tone- rather than just reading a transcript. Some empirical work suggests that whether testimony is delivered live or by video does not always significantly impact liability judgments, especially if the substance and narrative remain the same.[7] However, jurors may view video testimony as less immediate, less under oath oversight, or less “real”—they may discount it slightly unless the video is compelling in quality and presentation. From a practical standpoint, a hybrid approach sometimes works: live testimony when possible, and strategically selected video clips or demonstratives to reinforce key moments.

Demonstrative Evidence, Audio-Visual Aids, and Storytelling

Demonstratives and audio/visual aids are powerful tools to transform abstract or complex data into digestible visuals, reinforce themes, and invite juror self-persuasion. During the bar conference, jurors on the panel repeatedly mentioned how persuasive visual aids were in helping them come to their particular decision about the case. Further, in an era where the fight for our attention is ongoing and the average attention span is a mere 8 seconds or so, it is important to present evidence in all of the forms and formats available to grab AND maintain the jury’s attention – both auditory and visual.[8]

“Persuasion science” tells us that people are more convinced by conclusions they arrive at themselves rather than those they are told. Thus, letting jurors infer from a chart, animation, or timeline can be more powerful than walking them through each step verbally.[9] Narrative aids such as timelines, maps, accident reconstructions, simulations, animations, and graphic overlays help jurors integrate evidence into a coherent story. A good demonstrative “shows” what the attorney wants jurors to see, not just hear. Overly verbose or detailed demonstrations can distract or antagonize jurors. One article argues: “If there is demonstrative evidence that can tell a story, show it … with only as much description as is needed so they know what they’re looking at.”[10] Jurors are processing large amounts of testimony and facts. Visual aids can relieve the cognitive load, enabling jurors to “see the forest” as well as “see the trees.” As courts increasingly confront algorithms, bullet-matching analyses, or probabilistic models, the way demonstratives present uncertainty and error rates matters. Ultimately, when designed cleanly, anchored to the fact narrative, and used sparingly as “jury aides” rather than substitutes for persuasion, demonstrative materials can be among the most convincing tools in the trial lawyer’s kit.

How Jurors View Attorneys — Why Preparation & Professionalism Matter

Evidence matters, but the messenger matters too. How jurors perceive attorneys—credibility, competence, demeanor—can tip close cases. During the conference, this was another topic that came up again and again with the jurors present- they mentioned how they trusted attorneys that appeared prepared, composed and polished. And they ignored the arguments of attorneys that appeared unprepared, confused or disheveled. While this may seem unfair, it is important to understand the playing field one finds themselves in and understand that they will be judged by the rules on that field.

The Impact of Attorney Perceptions

In a study of 572 jurors, Wood, Sicafuse, Miller & Chomos found that jurors’ positive perceptions of attorneys’ evidence presentation and preparedness predicted favorable verdicts.[11] Interestingly, for prosecuting/plaintiff attorneys, a favorable closing statement perception correlated with verdict success; but for defense attorneys, a favorable opening sometimes correlated with less success—suggesting tactical nuance. [12]Jurors’ perceptions of attorney sincerity had complex correlations: in that study, higher perceived sincerity of the prosecution was negatively correlated with favorable verdicts—perhaps because jurors distrust over-polished sincerity.[13]

A qualitative juror survey in Baylor’s “Professionalism and Advocacy at Trial” found that jurors valued attorneys who believed in their case, understood both strengths and weaknesses, brought up incriminating facts before opposing counsel did, and were honest with the jury at all times.[14] The expression of anger or emotional intensity is double-edged: a 2023 study showed that specially scripted “angry” closing statements (authentic or inauthentic) affected juror decisions. The effect interacted with attorney gender, highlighting that emotional expression must be calibrated.[15]

In sum: the attorney is not invisible. Jurors assess: Are you confident yet humble? Prepared but flexible? Sincere? Respectful of the jury? These are all of the questions and thoughts that are running through the jury’s mind. Thus, an overreaching expression or sloppy presentation can backfire.

Preparation, Professionalism & Persuasion

Given that jurors form impressions early and carry them forward, trial counsel should treat professionalism and preparation as persuasion tools that are at their disposal:

  1. Know your audience: Understand the demographic and attitudinal profile of jurors: what narratives, analogies, or themes will resonate? Use focus groups and mock jurors in your preparation.
  2. Meticulous rehearsal: Script and rehearse openings, transitions, and key questions—not to memorize, but to internalize rhythm and clarity. Review demonstrative evidence and/or aides under multiple lighting/media conditions to test their applicability and use. It is important to attempt to prepare for any technological issues as well- a delay in getting the PowerPoint or computer to work can not only frazzle nerve but also hint to the jury lack of preparation.
  3. Visual consistency and stylistic coherence: Use a unified aesthetic (fonts, colors, visual metaphor) across slides, graphs, charts, timelines, maps. Disjointed visuals fragment attention.
  4. Courtroom demeanor and juror respect: Dress and comport yourself with professionalism- neither overly stiff or casual. The jury will be expecting respect between the attorneys and also to themselves. Use juror-friendly language: avoid jargon, explain briefly, and periodically remind them what they are supposed to remember.
  5. Ethical credibility: Avoid exaggeration or overstatement. Jurors often “catch” misstatements or inconsistent claims- even minor ones. Once they catch something like this, it can lead them to not trust what the attorney is saying or presenting after. One of my mentors told me once to “Never issue a check with your mouth that you can’t cash after closing argument.” That phrase stayed with me during many a trial. Discussing weaknesses in your case strategically (e.g. in opening) by weaving them into your narrative so jurors see you are not hiding anything.

Conclusion

Persuading a jury is a multidimensional craft: you must present strong evidence, package it in digestible visual and auditory narratives, and deliver it through a messenger jurors find credible and respectful. Live testimony, video, and demonstratives each have roles; the key lies in integrating them into a coherent, juror-friendly narrative rather than dumping raw data. A polished, professional attorney who commands respect, reduces juror cognitive load, and encourages juror self-persuasion can often convert a “close” case into a winning outcome.

 

[1] What Evidence Matters to Jurors? The Prevalence and Importance of Different Homicide Trial Evidence to Mock Jurors;  Kimberly Schweitzer and Narina Nuñez; https://pmc.ncbi.nlm.nih.gov/articles/PMC6818361/

[2] Understanding juror perceptions of forensic evidence: investigating the impact of case context on perceptions of forensic evidence strength; Lisa L Smith, Ray Bull, Robyn Holliday; https://pubmed.ncbi.nlm.nih.gov/21210812/

[3] Juror comprehension of forensic expert testimony: A literature review and gap analysis; Heidi Eldridge; https://www.sciencedirect.com/science/article/pii/S2589871X19300683?

[4] Elsevier’s Dictionary of Psychological Theories, edited by J.E. Roeckelein, 2006; citing G.L. Wells theory, (1978); https://books.google.com/books?id=1Yn6NZgxvssC&pg=PA627#v=onepage&q&f=false

[5] Willing, Richard: “‘CSI effect’ has juries wanting more evidence,” August 5, 2004, USA Today;  http://usatoday30.usatoday.com/news/nation/2004-08-05-csi-effect_x.htm%7Cpublisher=USA Today

[6] The Changing Science on Memory and Demeanor – and What It Means for Trial Judges, Mark Bennett; Vol. 101 No. 4 (2017); https://judicature.duke.edu/articles/the-changing-science-on-memory-and-demeanor-and-what-it-means-for-trial-judges/

[7] The effect of expert witness testimony and complainant cognitive statements on mock jurors’ perceptions of rape trial testimony, Nathan Ryan and Nina Westera, Psychiatry, Psychology and Law, June 2018; https://pmc.ncbi.nlm.nih.gov/articles/PMC6818329/

[8] Speaking of Psychology with Gloria Marks, February 2023; https://www.apa.org/news/podcasts/speaking-of-psychology/attention-spans; Stolen Focus: Why You Can’t Pay Attention by Johann Hari, 2024, https://stolenfocusbook.com/

[9] Persuasion Science for Trial Lawyers, December 2021, John Blumberg; https://www.persuasion-science.com/; https://law.temple.edu/aer/2022/10/24/persuasion-science-for-trial-lawyers/

[10] The psychological science of jury persuasion; Plaintiff Magazine, November 2017, John Blumberg; https://plaintiffmagazine.com/recent-issues/item/the-psychological-science-of-jury-persuasion

[11] The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict

by Steve M. Wood, Lori Sicafuse, Monica K. Miller, Ph.D., and Julianna C. Chomos; The Jury Expert, January 2011, https://thejuryexpert.com/2011/01/the-influence-of-jurors-perceptions-of-attorneys-and-their-performance-on-verdict

[12] The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict

by Steve M. Wood, Lori Sicafuse, Monica K. Miller, Ph.D., and Julianna C. Chomos; The Jury Expert, January 2011, https://thejuryexpert.com/2011/01/the-influence-of-jurors-perceptions-of-attorneys-and-their-performance-on-verdict

[13] The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict

by Steve M. Wood, Lori Sicafuse, Monica K. Miller, Ph.D., and Julianna C. Chomos; The Jury Expert, January 2011, https://thejuryexpert.com/2011/01/the-influence-of-jurors-perceptions-of-attorneys-and-their-performance-on-verdict

[14] Professionalism and Advocacy at Trial – Real Jurors speak in detail about the performance of their advocates; Baylor Law Review, March 2012, Mitchell J. Frank* & Dr. Osvaldo F. Morer; https://www.baylor.edu/content/services/document.php/176863.pdf

[15] The influence of attorney anger on juror decision making, Samuel Choi, Narina Nuñez, Benjamin M Wilkowski, Psychiatry, Psychology and Law, February 2022; https://pmc.ncbi.nlm.nih.gov/articles/PMC10281436

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The Art and Science of Persuasion: How Trial Lawyers Win the Jury’s Mind and Heart – Part 1

I recently had the good fortune to attend the Hillsborough County Bar Association’s Annual Bench and Bar Conference in early October. Among the many excellent seminars, one stood out to me in particular: a panel of jurors who had served on various civil trials in Hillsborough County. They had returned for the conference to discuss what they had considered important in the trials they had participated in and why they had come to the conclusions they did. As they discussed the observations, evidence and arguments they found most persuasive in reaching their verdicts, I was reminded that success in litigation and trial is as much an art as it is a calculated presentation of the evidence available to counsel and their client. In this two-part blog post, we will explore how nonverbal communication from the attorneys and the parties can influence litigation from the opening stages of a case through to the verdict and the types of evidence juries find most compelling.

Part 1: The Art and Science of Nonverbal Communication

Quick Thinking, Nonverbal Command, and the Advocate’s Presence

When most lawyers think about persuasion in litigation or trial, they focus on arguments, evidence, and the precise words spoken to the Court. But persuasion operates on more than just the conscious, rational level. Body language and subconscious cues influence parties, jurors, and even judges, sometimes more powerfully than a closing argument. Albert Mehrabian’s foundational research in communication theory is often cited for the idea that the majority of meaning in face-to-face communication comes not from words, but from tone and body language.[1]  Additional studies have confirmed that nonverbal cues shape how listeners perceive credibility, confidence, and trustworthiness.[2] Becoming aware of how you are communicating with others nonverbally can make a difference in how you (and your arguments) are perceived.

Malcolm Gladwell’s Blink expands on this phenomenon, describing how people form intuitive judgments in seconds—a process he calls “thin-slicing.”[3] In the courtroom, jurors are continually “thin-slicing” advocates, witnesses, and parties based on fleeting cues: a pause before answering, a crossed arm, a flicker of irritation. These are the “tells” that their subconscious minds are looking for to confirm or discredit their opinions and/or pre-conceived notions. Once formed, these impressions are remarkably resilient. Trial lawyers who understand this can use deliberate posture, pacing, and tone to project credibility and calm even when under stress.

In Outliers, Gladwell adds that elite performance often arises not from innate genius but from deliberate, repeated quality practice.[4] Quick thinking in trial, the ability to object smoothly, pivot on cross, or adapt to a judge’s question, depends on hours of structured rehearsal. The advocate who practices under pressure gains the intuitive mastery to make rapid decisions that feel instinctive to the jury.

Philip Meyer’s Storytelling for Lawyers offers a complementary insight: jurors interpret evidence through the story that feels most coherent.[5] Cognitive biases push people toward narratives that “fit.” When facts are organized into a clear, emotionally and visually consistent story, jurors experience less cognitive dissonance and are more likely to find the storyteller credible. Lawyers should therefore align their nonverbal communication with the story they are telling: calm tone for reason, measured movement for logic, warmth for empathy. Similarly, Brian Johnson and Marsha Hunter’s The Articulate Advocate reminds us that nonverbal delivery is the final layer of persuasion.[6] Vocal cadence, breathing, and stance all signal composure. Jurors (and other decision makers) equate these physical cues with sincerity and preparation, which in turn reinforce their subconscious judgment that the advocate is trustworthy. A trial lawyer’s ability to control their own body language, and read others’, can create subtle but real advantages:

  • Confidence and credibility. Research in legal psychology finds that refined appearance, upright posture, steady eye contact, and measured speech increase perceptions of trustworthiness.[7]
  • Storytelling through gesture. Gestures that mirror or emphasize verbal arguments help jurors retain key points.[8]
  • Detecting deception. While no signal guarantees truth or falsehood, inconsistencies between verbal statements and body language often alert jurors and judges to credibility issues.[9]

Persuasion begins long before closing argument. It begins in milliseconds- with a glance, a gesture, or the quiet confidence that jurors interpret as truth.

Subconscious Thinking and Cognitive Biases

Body language operates alongside subconscious mental shortcuts, or cognitive biases, that affect decision-making. Research by Daniel Kahneman in Thinking, Fast and Slow, and behavioral economists highlights how people rely on heuristics, availability, anchoring, confirmation bias, when making judgments.[10]

  • Authority bias: Jurors may unconsciously attribute more weight to testimony from a confident expert who appears composed and authoritative.
  • Halo effect: A likable party or witness (through warmth in demeanor or open posture) can influence jurors to see their testimony as more credible.
  • Anchoring: Discussion of case value in jury selection can subconsciously “anchor” the jury’s sense of reasonable outcomes, regardless of counterarguments.

Anchoring in Depositions and Testimony

Anchoring doesn’t just occur at the trial stage; it plays a powerful role during depositions and live testimony. Anchoring occurs when the first figure, fact, or framework presented exerts an outsized influence on subsequent perceptions, even if it is arbitrary.[11]

  • Depositions. When an attorney introduces an early numerical estimate (e.g., damages, timelines, percentages of fault), it can subtly set the reference point for the witness, opposing counsel, and even the judge reviewing the transcript later. Research in negotiation shows that first offers, even aggressive ones, tend to pull final outcomes closer to the anchor.[12]
  • Witness testimony. A plaintiff testifying that their medical bills were “over $100,000” anchors jurors, even if the defense later emphasizes a smaller reimbursable portion. Similarly, an expert who explains an injury will reduce life expectancy “by at least 15 years” has set a mental baseline that jurors carry into deliberation.
  • Cross-examination. Defense lawyers may use anchoring by posing questions with embedded figures: “Would you agree that many back injuries resolve within six months?” Even if the witness disputes the timeframe, the six-month figure becomes a subconscious benchmark.

Effective trial lawyers focus on tactics such as:

  • Set the anchor first whenever possible, framing damages or timelines in ways favorable to their client.
  • Challenge anchors overtly. Jurors are less likely to be unconsciously influenced if opposing counsel explicitly calls out an anchor as misleading or speculative.
  • Train witnesses. Prepare clients to avoid unintentionally reinforcing harmful anchors during deposition.

Anchoring operates quietly, but once established, it is notoriously difficult to dislodge, making it one of the most potent psychological tools in the trial lawyer’s arsenal.

Florida Courts and Subconscious Persuasion

Florida case law shows that courts are alert to the power of both nonverbal behavior and anchoring, even if they rarely use psychological terms.

  • In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Florida Supreme Court noted that subtle cues, such as prosecutorial comments or gestures, can create unfair prejudice, underscoring how easily subconscious impressions can affect juror perceptions.
  • Florida appellate courts have also cautioned against “golden rule” arguments, which are essentially emotional anchors inviting jurors to put themselves in the plaintiff’s position (See Metropolitan Dade County v. Zapata, 601 So. 2d 239 (Fla. 3d DCA 1992)).
  • Federal courts sitting in Florida recognize similar concerns: in U.S. v. Schlei, 122 F.3d 944 (11th Cir. 1997), the court highlighted how prejudicial framing can sway juries beyond the evidence presented.

Beyond published opinions, Florida’s trial practice CLEs frequently emphasize the importance of demeanor, credibility, and the way questions are framed, echoing research on subconscious persuasion. For litigators practicing in Florida, this means being attuned not only to statutes and case law, but also to the subtle cues picked up by Florida jurors, who often come from diverse cultural and linguistic backgrounds. Body language and anchoring techniques that resonate in one county may land quite differently in another part of the state.

Influence on Judges and Opposing Parties

Even in bench trials, nonverbal cues matter. Judges, like all decision makers, are also subject to subconscious influences. Research shows judges, despite legal training, are not immune to cognitive biases like anchoring or framing effects.[13] In mediation or settlement negotiations, attorneys who display calm, open body language can reduce conflict intensity and promote trust. Subtle mirroring and adopting a posture similar to the opposing party has been shown to increase rapport and willingness to compromise.[14]

Practical Tips for Lawyers

  1. Control your posture and eye contact. Stand confidently, avoid crossing arms, and engage jurors or the judge with steady but not aggressive eye contact.
  2. Be aware of the influence of clothing and organization of materials for trials or hearings. Decision makers are looking at every single aspect they can, whether they realize it or not. This will include your clothing, physical appearance and even how organized your table might be in the courtoom. Refined and neat appearances often subtly suggest confidence and trustworthiness.
  3. Use intentional gestures. Don’t fidget—use your hands to underscore important points in your argument.
  4. Be mindful of micro-expressions. Jurors often sense disdain, irritation, or nervousness in a split second.
  5. Prepare your client and witnesses. Jurors notice when witnesses look evasive, avoid eye contact, or fidget. Roleplay in advance to help them feel composed.
  6. Be aware of subconscious framing. The order in which you present evidence, the first number you introduce, and the way you label parties (“plaintiff” vs. “injured mother”) can anchor perceptions powerfully.
  7. Use anchoring strategically in deposition. Be deliberate with the numbers you put on the record, knowing they’ll stick with both jurors and judges later.

Litigation is a battle that is composed not only of stories, facts, and law- but also of subtle signals and subconscious impressions. By integrating lessons from psychology, communication science, and behavioral economics, lawyers can sharpen their persuasive edge in ways that go beyond the transcript. As Daniel Kahneman, Malcolm Gladwell, and many other scholars remind us, much of human judgment is fast, intuitive, and subconscious. In litigation and trial, that means the decision makers, whether it is a judge, jury or opposing counsel and their client, may have made their decision long before you even imagined it was possible. These decisions were not made after the closing argument, but instead are based on the signals they pick up from every nod, glance, and gesture you provide through the litigation process and in the courtroom. Stay tuned for more as we dive into our second part to this blog post: where we will consider what evidence is most persuasive in litigation and trial and why how it is presented is often the most important aspect.

 _________________________________

REFERENCES & BIBLIOGRAPHY

[1] Silent Messages, Albert Mehrabian, 1971

[2]Burgoon, Guerrero & Floyd, Nonverbal Communication, 2016

[3] Blink: The Power of Thinking Without Thinking, Malcolm Gladwell, 2005

[4] Outliers, Malcolm Gladwell, 2008

[5] Storytelling for Lawyers, Philip N. Meyer, 2014

[6] The Articulate Advocate, Marsha Hunter, Brian Johnson, 2016

[7] Detecting Lies and Deceit, A. Vrij,  2008; What Every Body is Saying, Joe Navarro and Marvin Karlins, 2008; Cues: Master the Secret Language of Charismatic Communication, Vanessa Edwards, 2022

[8]  “How Gesture Promotes Learning and Thinking,” Goldin-Meadow, Trends in Cognitive Sciences, 2003

[9] Detecting Lies and Deceit, A. Vrij,  2008; What Every Body is Saying, Joe Navarro and Marvin Karlins, 2008; Cues: Master the Secret Language of Charismatic Communication, Vanessa Edwards, 2022

[10] Thinking, Fast and Slow, Daniel Kahneman, 2011

[11] “Judgment Under Uncertainty: Heuristics and Biases”, Tversky & Kahneman,  Science, 1974; Anchoring Effect in Real Litigation: An Empirical Study, Yun-chien Chang, Kong-Pin Chen, Chang-Ching Lin, Chicago Unbound, University of Chicago Law School, 2016

[12] “First Offers as Anchors,” Adam D. Galinsky and Thomas Mussweiler, Journal of Personality and Social Psychology, 2001

[13] “Inside the Judicial Mind,” Chris Guthrie, Jeffrey Rachlinski and Andrew Wistrich, Cornell Law Review, 2001

[14] “The Chameleon Effect,” T.L. Chartrand , J.A. Bargh, Journal of Personality and Social Psychology, 1999

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Preparing for the legal, financial, and emotional realities of Divorce in Florida

Divorce is rarely a simple event, instead it is frequently a process with multiple twists and turns. In Florida, where equitable distribution and time-sharing statutes govern many outcomes, preparation is one of the best predictors of a fair, calm and efficient resolution. Whether you anticipate mediation, collaborative law, or believe litigation is necessary, taking practical steps before filing can protect your rights, clarify your priorities, and reduce unnecessary conflict. In this blog post, I will review some concepts to consider as you review your options regarding separation and divorce.

Understand Your Legal Framework

Florida is a no-fault divorce state, meaning that either spouse can seek dissolution on the grounds that the marriage is “irretrievably broken.” However, equitable distribution under Florida Statute § 61.075 and time-sharing arrangements under § 61.13 still require evidence and preparation. Before taking action, consider consulting with a Florida Family Law attorney and review with them what you may need to do. You can also consider some of the following concepts as you go through the process:

  • Review whether you meet the six-month residency requirement for filing.
  • Consult with a Florida family law attorney to understand options such as mediation, collaborative divorce, or traditional litigation.
  • Familiarize yourself with mandatory disclosure rules, including financial affidavits and discovery deadlines.
  • For additional information, you can review the Florida Bar Family Law Handbook at Florida Bar Family Law Handbook. You can also review Florida family law forms, including petitions, financial affidavits, and parenting plans, directly from the Florida Supreme Court at Florida Supreme Court – Family Law Forms.

Consider Collaborative Divorce

Collaborative divorce offers an alternative to courtroom litigation, focusing on resolution rather than confrontation. Under Florida’s Collaborative Law Process Act (Fla. Stat. §§ 61.55–61.58), both spouses commit to resolving their disputes respectfully and privately, with the help of trained professionals.

Key features include:

  • Each spouse retains a collaboratively trained attorney, and the parties jointly engage neutral professionals, such as a financial specialist and a mental health facilitator, to help guide discussions.
  • All participants sign a participation agreement, committing to full transparency and agreeing that if the process fails, both attorneys must withdraw before litigation begins.
  • This approach encourages open communication, minimizes hostility, and protects children from the adversarial nature of court proceedings.
  • For many Florida families, collaborative divorce blends the problem solving structure of mediation with the supportive framework of a multidisciplinary team, offering a path to closure that is both dignified and durable.

Gather and Organize Financial Information

Financial clarity is the backbone of every divorce case. Florida’s equitable distribution model divides marital assets and debts fairly, but not necessarily equally, based on documentation.

Concepts to Consider:

  • Two years of tax returns (federal and state)
  • Pay stubs, W-2s, or 1099s for both spouses
  • Bank, credit card, and investment statements
  • Retirement accounts, pensions, and life insurance policies
  • Mortgage documents, property appraisals, and titles
  • Business ownership records if self-employed or an entrepreneur
  • Household budget: current monthly income, expenses, and anticipated changes
  • Organizing these materials early reduces discovery disputes and provides for informed negotiation in mediation, collaborative sessions, or court.

Inventory Marital and Non-Marital Property

Under Florida law, property acquired during the marriage is typically marital, subject to division, unless proven otherwise. As you review the potential property, consider the following:

  • Real estate (homes, rental properties, land)
  • Vehicles, boats, or recreational assets
  • Jewelry, art, and collectibles
  • Inheritances or pre-marital assets (with documentation of ownership)
  • Keep copies of deeds, purchase receipts, and any prenuptial or postnuptial agreements that may affect ownership rights.

Parenting and Time-Sharing Plans

If children are involved, Florida courts require a Parenting Plan that details time-sharing, parental responsibilities, and communication. Before entering negotiations, it may be helpful to consider:

  • Outline a proposed schedule that considers school, extracurriculars, and holidays.
  • Document your role in daily care, education, and medical decisions.
  • Keep communication child-focused. Courts evaluate what is in the best interests of the child, not parental convenience.
  • Mediation and collaborative processes are often the best forums to craft cooperative parenting plans, reducing future litigation and emotional strain.

Safeguard Digital and Personal Privacy

In the digital era, your online presence can unintentionally affect your case. As you consider divorce, some items to review include:

  • Changing passwords and enabling two-factor authentication.
  • Review social media posts and set accounts to private.
  • Create a new email address for legal and financial correspondence.
  • Safely store digital copies of all relevant documents (encrypted or password-protected).

Address Immediate Financial and Living Arrangements

  • Determine how you will manage day-to-day logistics while the divorce is pending:
  • Open an individual bank account for your income.
  • Plan for temporary housing or shared-home arrangements.
  • Discuss temporary child support or spousal support with your attorney.
  • Avoid major financial moves (selling property, transferring assets) without legal guidance—these actions may be scrutinized under Florida’s automatic financial disclosure rules.

Build Your Support System

Divorce is both legal and emotional. There will be great days and tough days. It is helpful to have folks that understand you and can be there in a supportive manner. Consider assembling a personal and professional support team:

  • Attorney for legal guidance
  • Financial planner or CPA for tax and post-divorce planning
  • Therapist or counselor for emotional resilience
  • Trusted family or friends for practical support

Many clients find that early mediation or a collaborative process fosters a calmer, more constructive environment than adversarial proceedings, especially when guided by clear preparation and realistic expectations.

Plan for Life After Divorce

Preparation should not end when the judgment is entered or when the agreement is signed. If there are shared responsibilities, you may continue to have your ex-spouse in your life in one way or another for many years to come. It is helpful after the divorce to consider the following:

  • Update estate planning documents (this may include a will, power of attorney, healthcare surrogate, among others).
  • Review insurance beneficiaries and retirement accounts.
  • Establish a post-divorce budget that reflects new living expenses and financial goals.
  • Consider attending post-divorce mediation to address future parenting or support adjustments collaboratively.

Conclusion

A well-prepared client is an empowered client. By following a structured pre-divorce review of potential issues and concepts, and considering collaborative approaches, you reduce uncertainty, save time and legal costs, and preserve emotional bandwidth for what matters most: your future and your family. At Endeavor Mediation, we can help clients navigate these tough experiences in mediation with professionalism, neutrality, and compassion during efforts towards resolution.

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Two Years Later: How HB 837’s Interpleader is reshaping Florida’s Litigation Landscape

Florida’s tort reform, enacted through House Bill 837 in 2023, introduced significant changes to the state’s civil litigation landscape. One notable provision affects how insurers handle liability claims that may exceed policy limits. This blog post explores the use of interpleader in such scenarios and how it is evolving in the current litigation landscape.

What Is Interpleader?

Interpleader is a legal action that allows a party holding money or property (the “stakeholder”) to initiate a lawsuit asking the court to determine the proper claimant among two or more competing parties. In the context of personal injury litigation, interpleader is often used when insurance policy limits may be insufficient to satisfy all potential claims.

The use of Interpleader in Florida post HB837

Under Florida Rule of Civil Procedure 1.240, a party may bring an interpleader action when:

“[P]ersons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties otherwise permitted.” FL. R. Civ. P. 1.240 (2025)

In addition to Rule 1.240, the Florida statutes provide a general interpleader mechanism through Fla. Stat. §86.011, which gives courts the power to declare rights in a justiciable controversy, often used in conjunction with interpleader actions. House Bill 837, effective March 24, 2023, introduced several reforms aimed at reducing litigation costs and promoting fair settlements. Under the revised statutes, insurers are encouraged to:

  • Promptly investigate and evaluate claims to determine the extent of liability.
  • Engage in good faith negotiations with claimants to settle claims within policy limits.
  • Consider interpleader actions when faced with multiple claimants and insufficient policy limits to satisfy all claims.

As a result of these reforms, more claimants may be incentivized to litigate earlier, due to the shorter statute of limitations — potentially increasing the pressure on insurers to file interpleader actions quickly. In addition, bad faith reforms (codified in Fla. Stat. § 624.155(4)) create a “safe harbor” for insurers who act in good faith, including making a “tender” of policy limits in the face of multiple claims. Finally, Fla. Stat. § 624.155(6) now provides a mechanism for both interpleader options and binding arbitration options in these situations. One caveat to the statute does note that “[A]n insurer’s interpleader action does not alter or amend the insurer’s obligation to defend its insured.” Fla. Stat. § 624.155(6) (a) (2025). This could create a situation where the insurance company has no exposure to an extracontractual claim and yet must provide a defense to a party whose assets may be at risk. While this statute also provides for binding arbitration options, there is little to no direction on which rules will apply. As time passes, this issue will probably be further addressed as these claims make their way through the Florida Courts.

Practical Considerations for Plaintiffs and Defendants

The use of interpleader has now changed the strategy for many cases. For plaintiffs’ attorneys, the filing of an interpleader action means competing with other claimants for a limited amount of funds. Thus, early discovery becomes essential to build the strongest possible damages case early and to consider global settlement discussions. For defense counsel and insurers, the use of interpleader can cap exposure at policy limits, avoid bad faith claims when executed properly, and expedite resolution of complex multi-party claims. Additional advantages of using interpleader include avoiding multiple lawsuits, thereby reducing litigation costs and the risk of inconsistent judgments. However, there are considerations to remember and they include timeliness, as a delayed interpleader action may be viewed skeptically, potentially exposing insurers to additional liabilities. While interpleader can reduce litigation costs overall, initiating the action involves legal fees and court costs. Early settlement options should also be explored, including globale settlement conferences, in an effort to curtail any exposure. In addition, the court must approve the interpleader action, and claimants may challenge its appropriateness. Thus this new option is not without its risks to the parties involved.

Case Law Illustrating Interpleader Use in Florida

Florida courts have long recognized interpleader as a valid approach for litigants dealing with competing claims for quite some time. The following cases can provide a framework of steps to follow and consider when filing an interpleader action post HB837:

  • Wassman v. Travelers Casualty & Surety Co., 797 So.2d 626 (Fla. App. 2001)(“… An action for interpleader is a procedural device a stakeholder may use to settle conflicting claims to the same thing or fund. Lowry v. Downing Mfg. Co.,73 Fla. 535, 74 So. 525 (1917); V.I.P. Real Estate Corp. v. Florida Exec. Realty Management Corp., 650 So.2d 199 (Fla. 4th DCA 1995). It is an equitable remedy, which permits the stakeholder to bring the  fund into court so that the court can decide among the conflicting claims. Lowry, 74 So. at 526; Jax Ice & Cold Storage Co. v. South Fla. Farms Co., 91 Fla. 593, 109 So. 212, 218 (1926). The purpose of interpleader is to protect the stakeholder from the vexation of multiple suits. Paul v. Harold Davis, Inc., 155 Fla. 538, 20 So.2d 795 (1945). See also R. Civ. P. 1.240 (“Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability…”).
  • N & C Properties v. Vanguard Bank and Trust Co., 519 So.2d 1048 (Fla. App. 1988)(“… interpleader is a two stage “action.” However, there is no rule that demands two separate proceedings be held to complete an interpleader action. The first stage is a determination as to the propriety of the interpleader. If the stakeholder has no interest in the fund and no independent liability is asserted against him, an order of interpleader must be entered.”)
  • Red Beryl, Inc. v. Sarasota Vault Depository, Inc., 176 So.3d 375 (Fla. App. 2015)(company may still act as a proper stakeholder for interpleader purposes even if it claims no interest in the gems).
  • Cindy Vo v. Scottsdale Ins. Co., 1D2023-2228 (Fla. App. Feb 26, 2025) (holding that section 624.1551, which requires an adverse adjudication before filing a suit for extracontractual damages, cannot be applied retroactively to a breach of contract action settled prior to the statute’s enactment as it eliminates a previously valid cause of action).

How does Interpleader work in Florida Courts?

When multiple parties claim entitlement to the same funds, such as insurance proceeds in a personal injury case, an interpleader action allows the stakeholder (often an insurer) to deposit the disputed funds with the court and request judicial determination of rightful ownership. While filing the action may be fairly simple, additional steps may also be required. Some considerations to remember as you review the options for interpleader include:

  • Jurisdiction and Venue: action must be filed in the appropriate Florida court.
  • Court Approval: court order authorizing the deposit of funds into the registry.
  • Payment Methods: accepted forms typically include cashier’s check or money order, attorney trust account check or wire transfer where permitted.
  • Registry Fees: Florida courts usually charge fees for receiving funds into the registry. Review each jurisdiction to determine what fees may apply.
  • Stakeholder Discharge: upon successful deposit and absent any independent liability, the court may discharge the stakeholder from the action.
  • Claimant Litigation: remaining parties litigate their respective claims to the funds.
  • County-Specific Procedures for Depositing Funds: each county may have specific procedures and requirements for depositing funds into the court registry. Review the Clerk of Court website and local rules to determine the requirements.

Conclusion

Interpleader actions are vital tools in Florida litigation, especially when multiple claimants vie for limited funds. Properly initiating an interpleader action and adhering to county-specific procedures for depositing funds can shield stakeholders from multiple liabilities and streamline the resolution process. However, given the nuances and recent changes in the Florida statutes, the case law and the local rules, it’s essential to review the facts of each particular case and the local rules to ensure compliance with all procedural requirements.

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Appraisal in Florida Property Damage Cases: A Valuable Tool or Lengthy Detour?

Now that the 2025 hurricane season is upon us, property insurance is on everyone’s mind. More than ever, it is important to understand what may or may not be covered or available in a real estate property insurance policy. In Florida real estate disputes involving property damage—especially those arising from hurricane claims, water intrusion, roof failure, or fire loss—appraisal is a common and often misunderstood mechanism for resolving disagreements over the value of the damage. While appraisal can offer a faster path to resolution than litigation, it also comes with potential risks that both property owners and insurers must carefully weigh.

What Is Appraisal?

Appraisal is an alternative dispute resolution (ADR) process commonly found in insurance policies. It is sometimes used after or in place of other alternative dispute resolution processes, such as mediation or arbitration. When triggered or requested, each party (typically the property owner and the insurance company) selects an appraiser, and those two appraisers usually, but not always, select a neutral umpire. The panel then determines the amount or value of the loss claimed. Appraisal is not used to determine coverage issues or disputes over policy language. Florida courts have consistently held that the purpose of appraisal is to resolve a factual dispute regarding the value of a covered loss—not to interpret the policy or determine liability. (See State Farm Fla. Ins. Co. v. Parrish, 312 So. 3d 145 (Fla. 2d DCA 2021)).

Legal Framework in Florida

Appraisal in Florida is governed largely by contractual language in the insurance policy and case law, rather than by a specific statute. Therefore, the option for appraisal will vary on a case by case basis as not every policy provides this option. However, courts uphold the enforceability of appraisal clauses as long as they are clear and not waived.

Key decisions related to appraisals include:

  • Johnson v. Nationwide Mutual Insurance Co., 828 So. 2d 1021 (Fla. 2002)(The Florida Supreme Court held that appraisal does not determine coverage, only the amount of loss).
  • Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n, 54 So. 3d 578 (Fla. 3d DCA 2011)(Clarified that when coverage is admitted but amount is disputed, appraisal is appropriate even if factual disputes exist).
  • State Farm Fla. Ins. Co. v. Crispin, 290 So. 3d 150 (Fla. 5th DCA 2020)(Reaffirmed that courts—not appraisers—should decide whether an appraisal clause has been triggered).
  • State Farm Fla. Ins. Co. v. Roof Pros Storm Division Inc. (2022) Case No. 5D20-2415, Case No. 5D20-2418, Case No. 5D20-2419, Case No. 5D20-2420; (Lack of subject matter jurisdiction prevented Court from appointing neutral umpire).
  • American Coastal Ins. Co. v. San Marco Villas Condo. Ass’n Inc., No. SC2021- 0883, 2024 WL 369079 (Fla. Feb. 1, 2024) (Florida Supreme Court allows Court to order the parties to appraisal even when the insurer has denied the claim).

When Is Appraisal Used?

Appraisal is frequently used in residential and commercial real estate claims when:

  • The insurer admits there is a covered loss, but the parties disagree on the amount of the loss.
  • The insured wants to avoid protracted litigation and wants to try to obtain a higher payment.
  • Both parties seek to preserve the relationship by avoiding adversarial proceedings.

Pros and Cons of Using Appraisal

Appraisal can be a time and money saving tool when there is a property damage dispute. Here are some positive aspects:

  • Speed: Appraisal is typically faster than litigation, with many decisions issued within months.
  • Cost-Effective: Legal fees may be lower than a full-blown lawsuit, though costs can still rise depending on experts and the appraisers and/or umpire selected.
  • Less Formal: Less procedurally complex than court, and less emotionally taxing for homeowners.

There are risks to appraisal also. Here are some important aspects to consider:

  • No Resolution on Coverage: Appraisers cannot determine whether the damage is covered by the insurance policy—only how much it costs to fix. This can result in a hollow “win” if the insurer still denies payment on coverage grounds.
  • Cost Uncertainty: If appraisers, umpires and then experts are needed, costs can escalate quickly.
  • Potential for Waiver: Delay in invoking appraisal or engaging in litigation may waive the right to use it.

Watch the Policy Language

Most Florida homeowner and commercial insurance policies contain appraisal clauses, but not all appraisal clauses are created equal. Carefully reviewing the timing, conditions, and selection process for the appraiser and/or umpire is essential. Also, note that demanding appraisal too late in the dispute could be interpreted as a waiver of the right to use it. Appraisal can be a powerful tool for Florida property owners and insurers—but only when used strategically. It is effective when coverage is not in dispute and both sides are committed to a fair valuation. However, when issues of causation, coverage exclusions, or policy interpretation exist, mediation or arbitration may be the better route if the parties are trying to avoid prolonged litigation.

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The Success of Mediation in Florida Litigation

Florida has long been recognized as a leader in alternative dispute resolution, and mediation stands at the center of that success story. In a legal environment often defined by crowded court dockets, rising litigation costs, and the emotional toll of conflict, mediation offers a path forward that emphasizes resolution, efficiency, and control.

Why Mediation Works in Florida

Florida courts encourage mediation at nearly every stage of litigation. Under Florida Statutes Chapter 44, mediation is defined as a “process whereby a neutral third person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties.” Unlike trial or arbitration, mediation does not impose a binding decision; instead, it allows the parties themselves to craft solutions that meet their needs.

The success of mediation in Florida can be attributed to several key factors:

  • Judicial Support: Courts across the state routinely refer cases to mediation, from personal injury claims to family law disputes. In some counties, mediation is mandatory before trial.
  • Cost and Time Savings: Mediation avoids prolonged litigation and reduces attorney’s fees, court costs, and expert expenses.
  • Confidentiality: Florida’s Mediation Confidentiality and Privilege Act (§44.405, Fla. Stat.) protects what is said in mediation, encouraging open dialogue without fear of later use in court.
  • Control and Creativity: Mediation empowers parties to design outcomes that a court could not order—for example, structured payments, apologies, or creative business solutions.

Measurable Success in Practice

The statistics speak for themselves. According to the Florida Dispute Resolution Center, thousands of cases settle every year in mediation, with settlement rates often exceeding 70% in civil litigation. In family law, where emotions run high, mediation frequently results in agreements that not only settle the case but also preserve future relationships. A personal injury case, for example, may settle at mediation with both monetary compensation and agreement on structured medical care, providing peace of mind for all involved. In commercial litigation, mediation often bridges the gap between ongoing business relationships, preserving partnerships that would otherwise collapse in court. Recent statutory changes have also increased the importance of mediation. For example, Florida’s 2023 tort reform legislation (House Bill 837) altered attorney fee structures and insurance litigation strategies, pushing more disputes toward early resolution. With new limits on certain damages and the shortened statute of limitations, mediation has become an even more attractive option for litigants seeking certainty in an evolving legal landscape.

The Human Side of Mediation

Beyond numbers and statutes, mediation’s greatest success lies in its human impact. Unlike litigation, which is adversarial by design, mediation fosters communication and understanding. Clients leave with more than just a signed agreement—they leave with dignity, closure, and often, relief. For lawyers, mediation offers an opportunity to advocate for their clients in a less adversarial, more collaborative forum. For judges, it helps manage crowded dockets while delivering justice more efficiently. For parties, it provides a voice, a choice, and often, a faster resolution.

Florida as a National Leader in ADR

Florida was one of the first states to implement a statewide court-connected mediation program, and it remains a national model. With certified mediators trained under the Florida Supreme Court’s rigorous standards, parties can trust the neutrality, professionalism, and skill of those guiding their disputes. As litigation becomes increasingly complex and costly, mediation continues to stand out as one of the most effective tools in the Florida justice system. It succeeds not only in resolving cases but also in restoring peace, preserving relationships, and reducing the emotional and financial burdens of conflict. Mediation’s success in Florida litigation is undeniable. By combining judicial support, strong statutory protections, and a human-centered approach, mediation delivers results where litigation often falls short. Whether in personal injury, commercial disputes, or family law, mediation represents not just an alternative to litigation—it represents a better way forward.

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Thriving Under Conflict Stress: Exercise, Meditation, Sleep and Connection as Your Allies

May is Mental Health Awareness month, so let’s talk about stress and its effects! Litigators and trial lawyers are some of my favorite people because of the intense work ethic and bravery they have. Not only do they have to go to college, law school, and pass the bar exam- but then they must spend years honing the craft of persuasive argument while also practicing the delivery of that argument to seasoned litigators, judges, and lay people. It takes a special kind of person to be able to stand in front of a group of strangers in a court room, pour their heart out in argument for their position, and then wait in suspense as they decide whether to believe them or not. Waiting for a verdict can be some of the slowest moments a trial lawyer will ever experience in their life. But all that intensity sometimes comes at a price. The effects of that stress on the body eventually take a toll, especially as litigators grow in their careers.

Conflict and litigation – whether you’re the attorney or the client – can feel like an endurance test for both mind and body. The legal profession is notorious for its high-stress environment: lawyers juggle multiple cases, strict deadlines, and complex adversarial situations. The impacts of this stress do not stop with the attorneys, however, as the parties to the legal disputes also often experience chronic stress symptoms such as insomnia, impaired concentration, and even physical illness. This type of conflict can keep the body’s fight-or-flight response stuck in overdrive where stress hormones like cortisol and adrenaline flood our system, raising anxiety and causing negative effects on our health.

So, what can be done about it? Well, the good news is that science shows healthy lifestyle habits can act as powerful buffers against this stress. Regular exercise, meditation, sound nutrition, adequate sleep and meaningful connection with others can counteract the body’s stress response in unique ways. These aren’t just “feel-good” tips – they are evidence-based practices that calm the nervous system and build mental resilience. Below, we explore the science behind how each habit impacts your body’s response to stress and offer practical advice to fit them into a busy litigation lifestyle. Whether you’re a trial attorney facing the pressures of the courtroom or an individual battling through a high conflict lawsuit, these habits can help you stay calmer, clearer, and healthier when the stress is high.

Exercise: Physical Activity as Stress Relief

Breaking a sweat is one of the most effective natural stress remedies. When you exercise, your body chemistry changes in ways that blunt the stress response. Physical activity lowers levels of stress hormones like cortisol and adrenaline, while simultaneously boosting endorphins – the brain’s feel-good neurotransmitters. This surge of endorphins is what produces that post-workout “runner’s high,” a relaxed and optimistic feeling after moderate or intense exercise.[i] Exercise also helps the body practice dealing with stress by imitating the fight-or-flight response in a healthy context. These small micro-stress sessions help to train the body how to deal with stress in a safer environment. Over time, regular exercise can reduce the physical effects of stress – for example, it lowers resting heart rate and blood pressure, improves your body’s stress tolerance, and protects against stress-related illnesses. Beyond the biochemical effects, there’s a psychological boost too. Spending time dedicated to exercise also provides a mental timeout from legal worries. Focusing on weightlifting technique, a yoga pose, or simply the rhythm of your breath while running can pull your mind away from case anxieties and into the present moment. Regular workouts also improve self-confidence and sleep quality, both of which fortify you against daily stress. But how do you fit in the time to exercise when you are working all the time? Read below to find out!

Tips to Fit It In: Incorporating exercise into a busy, high-pressure work-life can be challenging, but it’s doable with some strategy:

  • Early Morning, Micro-Workouts or Transition: Everyone has a different schedule, so pick the time that works for you to be most successful at exercising. Whether you are an early riser or prefer to exercise after a stressful day, schedule the time so that it actually happens. Another option is to do 10–15 minute “micro” workouts during work day breaks – these short bursts of activity can lower tension and re-energize your mind.[ii] A walking treadmill at your desk is also an easy way to get in additional steps.

  • Mix Enjoyment with Movement: Pick activities you actually enjoy so that exercise isn’t another dreaded task. Whether it is doing a spinning class with a friend or taking a hike in nature, it is important to associate positive feelings with the exercise in order to create the habit.

  • Stack it with Routine: Tie exercise to an existing daily habit. For example, walk your dog in the morning and take an extra loop, or do a set of body-weight exercises right after you log off your computer each evening. Embedding movement into your schedule makes you less likely to skip it when things get busy.

Mindfulness & Meditation: Training the Relaxation Response

When stress from conflict is sky-high, mindfulness meditation is like a pressure valve for your nervous system. While meditation is certainly having a popularity moment, it has been used for centuries in many various forms to elicit the relaxation response. During meditation (or deep breathing, yoga, prayer – any mindful relaxation technique), the parasympathetic nervous system is activated, sending your body a message that it’s safe to calm down. Heart rate and blood pressure drop, muscle tension eases, and brainwave patterns shift. But being calm is not the best side effect- regular meditation practice can lower stress hormone levels, promote clearer concentration, improve cognition, encourage creative thought and empathy- and also help to reduce reactivity. A regular meditation practice can truly offer not only a “calm in the storm,” but can also help provide those “eureka” moments that lead to professional success.

Tips to Fit It In: You don’t have to escape to a monastery or chant for 5 hours a day to reap the benefits of mindfulness. Here’s how busy professionals can weave meditation into their day:

  • Check out an App or Watch a Few Videos: There is a veritable plethora of information on how to meditate online. From free Meditation Apps to “how to” videos on YouTube or TikTok, it is easy to learn how to meditate. If structure is better for you, consider a meditation app with scheduled sessions. If you prefer less commitment, try watching a few videos or perhaps even just doing it on your own.

  • Start with a Few Minutes: Begin with just 3–5 minutes of quiet breathing each day. For example, while you have your morning coffee or while you sit at your desk, close your eyes, and focus on slow, deep breaths for a few minutes. Even short sessions can start training your relaxation response. As it becomes comfortable, gradually increase the time. What really matters is consistency, not necessarily length of time. The more often you do it, the quicker you can reach that “calm in the storm”. In the beginning, just aim to do it daily or at least a few times a week. Over time, with consistent practice, you can do lengthier sessions if you wish.

  • Breathing Breaks in High-Stress Moments: When you feel stress surging (heart pounding before a big hearing or anger rising during a contentious meeting), take a strategic timeout. Excuse yourself for a bathroom break or simply pause at your desk to do a one-minute breathing exercise: inhale for a count of 4, exhale for count of 4 or 6, and repeat. This kind of slow, extended exhale breathing activates the vagus nerve and quickly calms the sympathetic “fight or flight” response. After some time of consistent practice, these moments of awareness will become second nature and you can train your body to automatically relax.

  • Mindfulness in Routine Activities: Not all mindfulness looks like sitting on a cushion. You can practice being fully present during everyday tasks such as when walking or doing a basic task like washing the dishes. The focus is to be present and stop the mental muti-tasking or run-away thoughts that have become so pervasive in our everyday lives. Sometimes, by just being “present,” the body will calm down.

Sleep: Recovery for Body and Mind

Sleep is often the first casualty of high-stress periods like trial prep or waiting for a verdict. Ironically, it’s also one of the most crucial factors in managing stress and maintaining mental health. Quality sleep restores a sense of balance in the brain and body that nothing else can. During deep sleep, stress hormone levels naturally fall and the brain’s emotional circuits reset, which is why after a good night’s sleep we typically feel more stable and less reactive. On the other hand, even one sleepless night can send stress levels skyrocketing. There is a documented link between sleep deprivation and increased cortisol levels in the body, meaning your body is literally acting as if under attack when you haven’t had enough rest. Over time, poor sleep not only harms health and concentration, it also erodes your emotional resilience, making you more susceptible to anxiety, depression, and burnout. For lawyers and litigants, prioritizing sleep is not a luxury – it’s a necessity. Sufficient sleep (experts recommend 7–9 hours for most adults) improves cognitive functions critical to legal work: memory, focus, complex reasoning, and emotional regulation. It’s much easier to manage a heated negotiation or unexpected setback when you’re well-rested; you’re less likely to snap at others or make reckless decisions. Conversely, chronic sleep loss lead to slower reflexes and impaired reasoning. By getting regular, high-quality sleep, you allow your body to physically dissipate stress hormones and your mind to consolidate memories and reset mood. If there is one keystone habit for wellness under stress, sleep is it.

Tips to Fit It In: When you’re busy and stressed, making time for sleep and improving its quality will pay dividends. But that can feel like an uphill battle. Here’s how to prioritize sleep even during a hectic litigation and work schedule:

  • Build Your Sleep Castle: Set the stage for recuperative sleep- review your bedroom environment and take an audit. Is it calming? Are there any disturbing lights? Is there ambient noise that can disturb your sleep? Are your bed and sheets comfortable? How is the temperature? Review your bedroom and make sure that it is truly the most calming place it can be. Sometimes that even means removing TVs or computers if they have lights or noises that cause you to wake up.

  • Protect Your Time Window: Treat sleep as a non-negotiable appointment with yourself. Aim for a consistent bedtime and wake time, even if work is demanding. For instance, if you know you have to be up by 6:30 AM to get to court, try to have lights out by 11:00 PM at the latest. This might mean setting an alarm at night reminding you to start winding down by 9 or 10 pm at the latest. Avoid the temptation to steal hours from sleep to get just one more task done – chronic shortcuts here will cost you more in efficiency and well-being long term.

  • Create a Wind-Down Routine: It’s hard to go from the adrenaline of late-night trial prep straight into peaceful slumber. Develop a pre-bedtime routine that signals your brain it’s time to disconnect. This might include 30 minutes of reading (non-work related) or listening to calming music, taking a warm shower, doing gentle yoga stretches, or practicing a relaxation technique like deep breathing or progressive muscle relaxation. Many find it helpful to limit electronic screens in that last half-hour because blue light from devices can trick your brain into wakefulness. If the news or social media tend to get you down, resist the temptation to take your phone with you to bed- it can be hard to fall asleep after reading or watching content that causes stress. Consider dimming lights and keeping the environment cool and dark – setting the stage for quality sleep.

  • Manage Work and Naps Wisely: Naps are not just for babies! Research indicates well times naps can help with stress levels and concentration. If you’re working very long hours, you might consider a power nap (15–20 minutes) in the afternoon to recharge – but be careful not to nap too late in the day or for too long, as that can interfere with nighttime sleep. Additionally, try to wrap up intense work a bit before bedtime. For example, resist the urge to read deposition transcripts until bedtime- instead try to stop at least 30 minutes before so the brain has time to calm down for sleep.

  • Address Sleep Problems Proactively: If stress is keeping you from sleeping or causes you to wake up after just a few hours of shut-eye, don’t accept sleeplessness as unavoidable. Use relaxation techniques at bedtime to help ease your body into sleep. Some people find white noise machines or phone apps with soothing sounds helpful to drown out a busy mind. To avoid the dreaded 2 AM wake up, try watching your intake of caffeine, stimulants, and alcohol, especially late in the day. Surprisingly, caffeine can linger for hours, and while alcohol might make you drowsy, it fragments your sleep quality and can lead to fitful bouts of midnight waking. But even if you do wake up, strategies like meditation and “box breathing” can help you fall back to sleep quickly. Research indicates that some of the most restorative sleep follows the Circadian rhythm. If insomnia, frequent waking, or anxiety about sleep becomes persistent, consider reaching out to a healthcare professional for additional strategies. Remember, getting the rest you need is one of the most effective ways to reduce stress and be at your best not just in the legal arena but also in the rest of your life.

“Zoom Fatigue”: The Hidden Energy Drain

It’s not all in your mind- fatigue when using virtual video platforms is real and we are slowly learning why and how it happens as remote work and virtual hearings have become common in legal practice. While virtual meetings have made access to legal proceedings easier than ever, a new kind of exhaustion has taken center stage. Many attorneys, judges, legal staff, and clients alike report feeling drained after a day of virtual meetings. Stanford researchers have studied the phenomenon and identified four major contributors to this exhaustion: excessive close-up eye contact, constant self-viewing, limited mobility, and increased cognitive load required to process nonverbal cues over video.[iii]

Unlike in-person interactions, where our peripheral vision helps us absorb cues and body language naturally, video calls and virtual meetings require intense sustained focus on a small screen to interpret tone, facial expressions, and engagement – all while simultaneously managing our own appearance and background. This creates a kind of hypervigilance, triggering stress. Moreover, on video we often feel compelled to appear “on” at all times, which increases emotional labor.[iv] For trial lawyers used to the quick dynamic nature of courtrooms or conferences, this way of working can feel particularly unnatural. And for litigants or clients, attending virtual hearings or depositions from home can blur boundaries, increase distractions, and increase stress.

Tips to Reduce Virtual Platform Fatigue:

  • Turn off self-view during calls when possible to reduce strain and subconscious anxiety.

  • Consider using a real background instead of blur. Early research on how backgrounds are perceived by virtual platform users indicates that viewers are consciously and subconsciously curious about what may be in the blurred background. This can cause other zoom participants to lose focus on what you are saying or showing as well.[v]

  • Schedule screen breaks between meetings if the meeting may go over an hour at a time.

  • Use phone calls instead of video when face-to-face isn’t essential.

  • Consider a sit/stand desk that allows you to get up from your chair even while you are on zoom.

  • If you have a wireless headset, you can take calls while walking around the room or at least stand.

  • Consider a desk walking pad, treadmill or under-the-desk cycle machine if you are tied to zoom for hours on end, such as for a deposition or meetings. It is easy to install these under a sit/stand desk and with proper camera positioning, you can move on the walking pad without it affecting how the camera captures you. Just a little bit of movement each hour can make a life altering difference to your energy level and physical

  • Have drinks and snacks handy if the meeting takes over an hour. Talk to the participants about mealtime expectations- don’t assume they will break for lunch or dinner!

  • Manage expectations and set clear start and end times for virtual meetings to protect boundaries.

Understanding and acknowledging video conferencing fatigue isn’t just about comfort – it’s about preserving mental bandwidth in a high-stress profession. The screen may be efficient, but it can come come at a neurological cost. Managing this kind of fatigue intentionally can help maintain clarity and composure, both during conflict and throughout your legal day.

Connection: The Superpower Hidden within All of Us

While stress can cause many physical symptoms, it has many intangible effects as well. By far one of the most far-reaching is its ability to foster and encourage loneliness. When people are under stress, they naturally self-isolate out of fear or anxiety or just being plain overwhelmed. In addition, when countless hours are needed to finish complex projects or to prepare for a trial, it is to be expected that litigators and litigants alike will experience loneliness.[vi] But the legal profession is not alone in dealing with this issue, social disconnection has become so pervasive that numerous countries have appointed special ministers to combat what they consider the significant public health crisis of loneliness.[vii] Between the isolation caused by electronic devices, the discord prevalent over social and political issues, and the overwhelming demands of work, it is no wonder that many lawyers continue to feel the intense feelings of loneliness on a daily basis. However, as with the other effects of stress, this too can be changed with a few simple strategies.

Tips to Foster Connection:

  • Volunteer for something that you are passionate about: Sometimes loneliness is caused by not having others interested in the same topics you are. If you are passionate about art or dogs or something else- consider volunteering just a few hours a month with an organization in that area. You will soon meet like minded people that will connect with you in an area you enjoy.

  • Sports and Exercise: If exercise is one of your favorite stress relievers, consider doing it with a buddy. Whether it is a jogging partner, someone that can spot you on deadlifts or a pickleball buddy, having a partner doing a physical activity with you can not only help you exercise consistently, they can also foster connection and positive feelings.

  • Hobbies are not just for retirees: With the intense time commitment needed to be successful as a litigator, it can seem impossible to have a hobby. But being lonely can in and of itself become a hobby. Consider taking up an art class or gardening club – or perhaps doing something you have never done before such as Improv Comedy. Sharing a similar interest can foster connection and promote positive feelings that will far outlast the time spent on the activity.

  • Not every lunch needs to be at your desk: Its really easy to just sit at your desk for every meal- but those are lost opportunities to not only get some exercise but to also foster connections with coworkers or to maintain friendships with people outside of work. Whether it is just meeting for a 15 minute brown bag lunch or a two hour wine and dine- sharing a meal with others is a great way to reset the mind and create a buffer from the stress of work.

  • Smile and Say Hello: It can be hard to put yourself out there to make new friends or connections. There are a multitude of reasons why that might feel incredibly uncomfortable or anxiety inducing. But as anyone that has watched a class of kindergartners on the playground has realized, at our core we all want to belong and we all just want to be friends. In her podcast, The Happiness Lab, Dr. Laurie Santos tackles the difficulties of making friends as an adult and offers a slew of strategies in her episode “The Secret to Making Friends as an Adult.”[viii] In another episode, she tackles specifically the challenges that introverts face when trying to make friends.[ix] So to quote Mr. Rogers, “Won’t you be my neighbor?”

Conclusion: Building Resilience in the Legal Arena

Chronic stress from legal conflict is a formidable opponent – it can wear down even the toughest individuals. But by proactively nurturing these four pillars of well-being (exercise, meditation, sleep and connection), you equip yourself with a personal toolkit for stress management. Think of it as strengthening your resilience muscle: each healthy habit reinforces your body’s natural defenses against stress. For lawyers, prioritizing wellness is not only about feeling better, but also performing better. A litigator who has healthy habits in place and has taken a moment to center themselves is going to be sharper and more composed than one running on junk food and a few hours of sleep. And for clients, maintaining these routines can make the legal process less overwhelming, giving a sense of control amidst uncertainty. Of course, in busy seasons you might falter – a trial week might mean missed workouts, an all-nighter, and increased stress levels. And you know what- that’s okay. Short periods of intense stress are normal and can even be helpful for buidling resilience. What we want to avoid is the chronic overwhelming stress that can cause significant health issues over time. The key is to build habits over the long run and return to them when you can. Even small steps, like a 5-minute meditationm parking far to get more steps, or choosing a salad over fast food, add up and signal to your body that it’s okay to relax.

In times of conflict, taking care of your physical and mental health is not indulgence, but essential self-care. By integrating exercise, mindfulness, connection and sleep into your life, you’ll be better equipped to handle the pressures of litigation with a clear mind and steady nerves. In the end, reducing stress isn’t about eliminating conflict, but about strengthening yourself to face it. With these practices in your routine, you can walk into each day feeling more grounded, resilient, and ready for whatever challenges the legal battlefield brings.

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