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Occasionally, the opposite problem occurs and a party refuses to participate in the summary jury trial process. The response of the courts has varied, depending upon the nature of the case and the reasons for the desire to avoid the summary jury trial process. Courts have been comfortable in putting judicial economy first in cases in which parties seek to avoid the "dash of cold water" afforded by the jury verdict. On the other hand, courts have also allowed parties to refuse participation in the process when it might jeopardize the parties' normal litigation. Since the aim of a summary jury trial is to promote settlement negotiations, there would seem to be little point in dragging a party into a situation in which they might withhold their best efforts and thus bias the verdict brought back.

The process of empanelling a "mock jury" has caused some controversy. In the Hume case, the court flatly denied a request by both parties for a summary jury trial on the grounds that it did not have authority to require citizens to serve on a "mock" jury. Usually, this has not been a problem.

In the eyes of the layperson, the summary jury trial proceeds much like a regular trial. The jury is selected by voir direwithout being told that its verdict is non-binding. The clients must attend from the opening statements through summary presentations of evidence and closing arguments. After the verdict, the parties begin an examination of the verdict and the reasons why the jurors reached it. When the parties believe that they understand how their evidence fared in the minds of the jury, they meet and once more attempt to hammer out their differences. Note that at this stage, the proceeding devolves to a rather traditional negotiation session!

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