The jury whisperer

Retired judge Bryan F. Foster tried nearly 100 jury trials as an attorney and presided over another 400 on the San Bernardino County Superior Court.

"What I've always seen is you can never tell what a jury's going to do," Foster said. "But I've found out over the years that there are certain things jurors think about, that they listen to and that they consider in terms of their decision."

Foster noted that over his nearly 30 years as a litigator, and his two decades on the bench, there were certainly times when he agreed with jury verdicts, and on other occasions, he most definitely disagreed.

"But I've found that in most cases, they kind of come in the range of what I think would be fair," Foster said.

Foster has been putting his extensive experience with juries to good use as a Judicate West private neutral, tackling personal injury, employment and commercial disputes as a mediator and arbitrator since he joined the ADR provider three years ago.

Digging into cases and working with attorneys and the parties to zero in on critical details of a dispute is a process that he still thoroughly enjoys.

"What I've always prided myself on as a litigator and also as a judge is being able to take a lot of information and categorize it," Foster said. "So, I can point to and look at the things that are the hinge points in a case, things the case will actually turn on. ... And what are the things the jurors would be most interested to hear about? What are the things that will actually make the difference in terms of what the settlement value of the case is?"

A 1974 University of San Francisco School of Law graduate, Foster grew up in the Bay Area and worked many part-time jobs before he passed the bar.

"I worked as a pipe fitter's helper. I worked at a car wash. I worked delivering blood samples," Foster recalled. "I cracked crab down at Fisherman's Wharf one summer. ... I worked at a commercial bakery."

The product of a middle-class family, Foster said, "I didn't grow up with a silver spoon, but I wasn't poor," and all those part-time jobs are still helping him today.

"It gives me a sense as to people that come in who come from many different parts of life," he said. "I can identify with the types of things they do, and what their life is like."

Mediations tend to work better when attorneys arrive with a cooperative attitude, Foster said, adding that his role is to facilitate productive discussions.

"It's not so much about what you say. It's more about how you talk to the sides, telling them, 'Look, let's see if we can come to a meeting of minds here,' rather than, 'Yeah, this is a good strategy for you,'" Foster explained. "You do talk a little bit about strategy, but that's really about informing them as to where they should be moving to try to get the case resolved in a way both sides can agree to."

Defense attorney Barbara A. Keough has known Foster since he was a litigator and also appeared before him on the bench. She's used Foster on a couple of occasions as an arbitrator in personal injury disputes that ultimately settled.

"It seems like every time we have a meeting with the judge, my matters settle," Keough said, noting that counsel and parties met with Foster online for pre-arbitration settlement conferences to discuss evidence in the respective cases as well as strengths and weaknesses.

"He's got a very pleasant, compassionate and yet patient demeanor," Keough said. "We spent a half an hour on the phone with the judge, talking about the good points and the bad points of the case. ... And he really helped open our eyes, and I think that outlook and that skill he has helped to ultimately bring us together."

Plaintiffs' attorney Victor A. Russo tried three court cases in front of Foster and has since used him to mediate personal injury disputes featuring railroad employees.

"Expect him to be very prepared," Russo said. "He'll read everything and try to hit the ground running at the mediation. So, he doesn't waste time. ... And he's diplomatic about it, but he's going to tell you what's wrong with your case and what's right with your case."

Russo added that the neutral has earned a reputation for fairness. "Both sides respect Judge Foster," Russo said. "He's objective, and I really don't think he leans one way or the other."

Plaintiffs' attorney Steve C. Glickman has used Foster to resolve three personal injury cases, and said the neutral's extensive trial experience as an attorney and a judge really set him apart.

"He's walked the walk and talked the talk," Glickman said. "His experience having tried a whole bunch of cases as a lawyer and then having tried a whole bunch of cases as a judge - it gives him this unique perspective that he really sees how both sides fit together and what both sides need to look at so he knows where to apply the pressure points."

Like Keough and Russo, Glickman said Foster's demeanor is another big positive, pointing to a wrongful death case that recently settled as an example.

"He really established a great rapport with the family and was able to use his empathy skills and his compassion skills to really get them to feel comfortable with his input and his advice on the case," Glickman recalled. "And in the other room, I think he was able to get them to appreciate the family's loss and how a jury would appreciate the family's loss ... So, I think he really applied what both rooms needed to know to really reach a settlement on a very difficult case."

Foster noted, meanwhile, that he won't be able to resolve every case.

"Sometimes there's a gap that can't be bridged, and there are some cases that really call out to be tried," Foster said. "I understand that, so I don't look at it as necessarily a defeat for me when a case doesn't settle. ... I look at it in terms of: I've moved them at least to a better understanding of the issues involved in the case and things they should keep in mind if in fact they do go to trial. And those are things I feel good about."

Here are some attorneys who have used Foster's services: Victor A. Russo, Hildebrand McLeod & Nelson LLP; Steve C. Glickman, Glickman & Glickman ALC; Barbara A. Keough, Law Offices of Beth M. Henderson; Christopher P. Wesierski, Wesierski & Zurek LLP; and Gregory G. Rizio, Rizio Lipinsky Heiting.