I mediate and arbitrate complex commercial disputes, the former with ADR Services, Inc. in Century City and the latter with...
The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...
Nice perceptive piece on negotiating fees over at the Consultant Journal blog entitled Negotiating vs. Giving Up. Thanks for the tip Andrea.
The above negotiation tip is sponsored by the acronym ZOPA.
Your mediator should never never never never let the parties believe they've reached impasse until the mediator is as certain as she can be that there is no Zone of Potential Agreement.
How does s/he know? Tune in for tips to knowing the mind of your mediator.
In his article, Feeding Lawyers' Souls but Not Their Wallets, New York Times writer Adam Liptak reports on a recent federal appeals court opinion confirming the old legal saw that bad facts make bad law.
Should Pro Bono Attorneys Be Required to Accept "Psychic Reward" When Their Clients are Entitled Attorneys Fees?
It seems that Gibson Dunn prevailed in a federal Voting Rights Act case after eight of its attorneys devoted 300 hours to the legal effort, resulting in a $107,000 bill, to be paid by the taxpayers of Albany County.
Most law firms the size, sophistication and power of Gibson do a lot of high profile pro bono work, with no expectation of reward. When the law permits the recovery of legal fees, however, they are as entitled to be reimbursed as any other lawyer -- be s/he a solo practitioner, a public advocacy group, or a mid-sized law firm.
Sometimes only a firm like Gibson is capable of handling "small" cases on behalf of public-sprited NGO's. I know. I represented the Rain Forest Action Network when Occidental Petroleum brought suit against it for picketing the CEO's house in Brentwood. Right or wrong, this is the type of case most attorneys could handle with a bit of a brush-up on the recent constitutional law on picketing.
Later, however, RAN needed an attorney to respond to a congressional subpoena implicitly threatening its tax-exempt status. There aren't a lot of attorneys who can do this work, so I lateraled it to an AmLaw20 firm, with a D.C. office and lawyers capable of responding to power with power.
Let's Give the Federal Judges a Raise!
Federal judges -- all of whom are long past due for a pay raise -- sometimes cast a skeptical eye on fee requests by major international law firms. When first year attorneys at these firms are making more than federal judges, we understand how it rankles.
But the "psychic reward" calculus seems not to have precedent -- nor credible legal basis -- as a response to any attorney's request for fees, be s/he a Gibson lawyer or a solo practitioner.
Let's Get Back to Judging Fee Requests by their Merit
First, Voting Rights fee provisions are not simply meant to reimburse counsel. Rather, we suspect, the exception from the "American Rule" that governs most litigation, is to encourage attorneys -- not all of them Gibson, Dunns -- to take on cases for indigents harmed by civil rights abuses.
We also suspect that fee awards in Voting Rights Act cases have some punitive purpose -- to encourage the government, for instance, to abide by the Act without lengthy and expensive legal resistance.
And hey! Some attorneys get a lot of psychic reward from representing their corporate clients, not all -- or even most -- of whom are Simon Legrees of capitalism. Rather, they're the types of enterprises that keep the American economy humming along for the benefit of most of our citizens.
Would a court suggest that Yahoo's attorneys, or Google's, should be satisfied by the good they do for the economy of the country rather than seeking actual cash payment for the work they do? What if their representation of Apple gives attorneys not only the "psychic" reward of playing golf once a week with the CEO, but also social capital -- access to people who can connect you to others who can make you even richer and more powerful than you already are.
Should we consider that when granting or denying fee awards to the attorneys for Microsoft?
No Good Deed Goes Unpunished
We shouldn't read this case as a happy occasion to bash attorneys who are signficantly more financially successful than the rest of us. Rather, we should read it for the decision it is -- yet another occasion to confirm a second class status for the least of us, who this federal court presumes should be content to accept charity from attorneys who cannot hope to recover the fees that might be awarded if they represented clients with sufficient funds to to pay their attorneys in the first instance.
If Gibson's fee was excessive, it should have been measured as all fee awards are -- based upon the sophistication and difficulty of the legal work required, the amount of time expended and the result achieved.
The fee should not, however, rest upon some unmeasurable "psychic award" that public spirited lawyers presumably receive when working pro bono or for a "good" cause.
And the Settlement Angle?
The news here is far from good as well. If the indigent plaintiff is treated as a second class citizen by the courts, the wrongdoing defendant benefits at the expense of a good samaritan. With more bargaining chips in hand, the defendant can cut a more advantageous bargain for itself. The plaintiff -- bent primarily upon the public good -- must be satisfied with a lesser monetary reward and fewer bargaining chips to achieve the social justice s/he seeks.
Gibson did a good deed and is repaid for its public service by derision from the bench for its financial success and a diminished fee award.
No good deed goes unpunished.
We've taken to heart Justice Ruvolo's admonition that the Courts should put their resources into their central mission -- providing a litigation and trial forum to resolve disputes that the parties cannot or should not be required to resolve in "alternate" private forums.
Though I'm an ADR fan, I don't think either arbitration or mediation should be utilized simply because the courts can't get your dispute resolved effectively, efficiently or in a cost-effective manner.
As we've noted before, no one wants to settle a case looking down the barrel of a gun. Too often the "justice" system looks more like a .357 Magnum than the constitutionally mandated "fair trial" we've been brought up to believe in.
Free the Defendants -- Dismiss Dubious Pleadings
Courts are at their most frustrating when they permit dubious or skeletal Complaints to stand, thereby requiring defendants to expend hundreds of thousands of dollars in legal fees to engage in the discovery and further pre-trial practice that they hope will extricate them from the litigation at the end of a (very long) day.
Every time a Court requires the Plaintiff's Complaint to rise above the level of speculation, a justice angel earns her wings.
So it is with the Supreme Court's recent decision in Bell Atlantic v. Twombly, summarized by a recent Mayer Brown Antitrust Client Alert Supreme Court Decision Signals a Major Victory for Antitrust Defendants in a Variety of Industries. (You know, you really should be blogging these great intellectual treasures -- talk to my friend Kevin O'Keefe at LexBlog about exhuming your best articles from the firm's web site and coming out into the blogosphere to play!)
Here's the good news on the new standard of pleading antitrust counts as reported by Mayer Brown:
The Court’s ruling brings Section 1 pleading rules into line with previous decisions that, at later stages of the litigation, a plaintiff’s proof must tend to exclude the possibility that defendants were acting independently. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984).
And it finally inters the oft-cited statement in Conley v. Gibson, 355 U.S. 41, 47 (1957), that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”—a statement that some courts have held to permit highly speculative pleading revealing only “the theory of a claim.” Stating that this “famous observation has earned its retirement,” the Court concluded that it is “best forgotten as an incomplete, negative gloss” on standards that apply only once a claim has been stated adequately.
The Court’s decision has wide-reaching implications for federal antitrust litigation and signals a victory for antitrust defendants in a variety of industries. Paired with Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), this case reflects the Court’s sensitivity to the pressures of settlement prior to discovery and its concomitant willingness to interpret strictly the Rule 8 entitlement requirement. (emphasis mine).
For more information about your antitrust ligitiation, Mayer's Client Alert suggests you contact Richard J. Favretto or Gary A. Winters, both in Mayer's D.C. office.
From time to time we take a look at social psychology and evolutionary biology because ADR practitioners must be good students and careful readers of predictable human behavior and ways to encourage change.
What better place to begin than with ourselves. In this week's Blawg Review, Enrico Shaefer's Greatest American Lawyer gathers together the week's 411 on self-reported billing irregularities.
I know this topic is compelling to lawyers because I've had more "hits" to the Bar & Grill Singers' "I'm Billing Time" video (their song/my video) than for any other post.
Here it is again.
On to disreputable billable hour violations . . . .
We're Hard Wired to Detect Cheating
In their article Evolutionary Psychology: A Primer, Leda Cosmides & John Tooby report on research finding that our reasoning abilities are more finely attuned to detect cheating than any other type of misbehavior. Before discussing violations of social norms, Cosmide and Tooby explain the most fundamental norm in human behavior -- reciprocal altruism in social exchanges.
The evolutionary analysis of social exchange parallels the economist's concept of trade. Sometimes known as "reciprocal altruism", social exchange is an "I'll scratch your back if you scratch mine" principle. . . [S]ocial exchange cannot evolve in a species or be stably sustained in a social group unless the [participant's] cognitive [abilities permit] a potential cooperator to detect individuals who cheat, so that they can be excluded from future interactions in which they would exploit cooperators.
Who are the cheaters? Individuals who "accept[] a benefit without satisfying the requirements that . . . [the] benefit was made contingent upon." You know, the people who earn a little extra by padding their billable time by two or three hours a week. Benefit without satisfying its conditions. Work for hire.
How Good Are We at Detecting Cheating? Very, Very Good
The researchers designed an experiment to test whether we have a specialized "cognitive architecture" that permits us to detect "logical violations of conditional rules." The result? In response to a relatively simple logical problem-solving exercise designed to test this type of reasoning, Cosmides and Tooby found that fewer than 25% of subjects spontaneously detected the violation.
What about our logical reasoning skills when it comes to detecting cheating or bluffing? In these circumstances, we become very smart very fast. The authors explain:
People who ordinarily cannot detect violations of if-then rules can do so easily and accurately when that violation represents cheating in a situation of social exchange . . . This is a situation in which one is entitled to a benefit only if one has fulfilled a requirement (e.g., "If you are to eat those cookies, then you must first fix your bed"; "If a man eats cassava root, then he must have a tattoo on his chest"; or, more generally, "If you take benefit B, then you must satisfy requirement R").
Cheating is accepting the benefit specified without satisfying the condition that provision of that benefit was made contingent upon (e.g., eating the cookies without having first fixed your bed).
When asked to look for violations of social contracts of this kind, the adaptively correct answer is immediately obvious to almost all subjects, who commonly experience a "pop out" effect.
Whenever the content of a problem asks subjects to look for cheaters in a social exchange -- even when the situation described is culturally unfamiliar and even bizarre -- subjects experience the problem as simple to solve, and their performance jumps dramatically.
In general, 65-80% of subjects get it right, the highest performance ever found for a task of this kind.
No wonder we like to play Texas Hold'em.
And no wonder we get an uneasy feeling whenever we begin to sense that our opponent (or attorney!) is cheating us. We just know it.
As I've often opined before, this is why the collective wisdom of juries as fact-finders will always trump panels of expert advisors. They just know who's bluffing and who's not and they don't let a lot of legal or technical mumbo-jumbo interfere with their B.S. Detectors.
Another Benefit of Getting Your Case Before a Mediator
After mediating full-time for three years, I realize it's not just how astute and perceptive I can be in reading people (there goes another of my own self-satisfied bubbles). A mediator is simply in a unique position in an adversarial system. We get to use our hard-wired bluffing skill because everyone talks to us more or less openly for several hours, which is longer than we really need to get a sense of who's bluffing and who's not.
Still, in order to detect this particular violation of the social contract, you do need a mediator more skilled at listening than s/he is at solving intricate logical puzzles. Ideally, you look for both. Education. Training. Experience. But it's likely the mediator's ability to set everything else aside and simply listen as the parties explain themselves that separates the masters from the amateurs.
How and why we too often override our gut feelings in this regard, permitting ourselves to be bilked and scammed, is the subject of Michael Webster's Blogs, which I highly recommend you make part of your skimming. (who has time to actually read?)
And, oh yes. It would be best not to cheat your clients. Biting the hand that feeds you and all that. Better to look him or her in the eye with a clear conscience and sleep soundly than make that 2200 hour bonus this year.
From today's New York Times article Insurers Agree to Pay Billions at Ground Zero
The Spitzer administration announced the settlement of all insurance claims at ground zero yesterday, ensuring that $4.55 billion will be available for rebuilding the World Trade Center site.
The agreement, which the insurers described as the largest single insurance settlement ever undertaken by the industry, ended a protracted legal battle with insurers over payouts related to the terrorist attack.
New York State and Port Authority officials said yesterday that the deal removed any uncertainty over how much money would be available for rebuilding and would enable them to obtain private financing for the $9 billion project.
You wouldn't think there'd be a legal practice/personal story to go along with this settlement, but because this is the kind of work I did (insurance coverage litigation) during my last decade in practice, and because I met my husband litigating my last major coverage case (Lloyds of London adv. Imperial Oil, Exxon's Canadian subsidiary) this coverage litigation is a very personal story for me.
How's that for a narcissistic world view?
The Legal Practice Angle
On Labor Day 2001, Steve, my beloved, moved to Heller Ehrman's Los Angeles office after 30-plus years at Heller in San Francisco. Five days before September 11.
We both had the same practice problem. These cases -- the Imperial Oil case and soon the WTC coverage litigation -- consume your legal practice for years. When they're over, you often think you'll never work again. It's a little like being an actor in Hollywood. Sure, you were nominated for an Academy Award for The Devil Wears Prada, but will Meryl Streep get another decent role ever again?
So Steve was wringing his hands about where his next case would come from. When your practice depends upon catastrophic events accompanied by ambiguous insurance policies (they're all ambiguous) you don't want to wish too hard for new work.
By Labor Day '01, I'd moved on to antitrust litigation against the entire Southern California workers compensation industry and was busy learning the intricacies of claims adjustment for workers comp claims. My practice had always been more eclectic than Steve's so it was a little easier for me to pick up new work when THE BIG ONE settled.
You can see the rest coming. Steve's daughter called the morning of September 11 and said "America's under attack." The most chilling and difficult to comprehend string of words I've heard since a friend called at 3 a.m. in June of '68 to say "Kennedy's been shot."
The towers came down and the coverage litigation commenced a few weeks later. Steve and I spent our first year of unwedded bliss one week together and one week apart as he shuttled back and forth to New York for the conferences and court appearances; the depositions; and finally the mediation. Because Steve represented Silverstein's lender (a mere $850 million) his client settled out early and we were able to get used to living together on consecutive weeks.
I neither worry about nor wish for Steve to obtain new coverage litigation anymore. I started my neutral practice in '04. Just as there is enough conflict in the world to keep every mediator employed full time through the next century, there will sadly be enough major catastrophic events to keep Steve employed through retirement.
And then neither of us will have to follow the "number of occurrences" case law ever again! See also the Insurance Scrawl on the "number of occurrences" issue here. Report on the Jury Verdict here.
I've been following numerous discussions on mediation ethics on a couple of ADR listserv's. As a 
result, I can tell you there are a lot of ethical questions circulating among mediators, many of them too important to remain the subject of private discussion.
So I'm pleased to announce that the ABA has formed a new committee -- the Committee on Mediator Ethical Guidance. According to the most recent ABA e-newsletter, the Committee
will provide advisory responses on ethics for mediators. Established by the ABA Section of Dispute Resolution, the committee will interpret the 2005 Model Standards of Conduct for Mediators published by the ABA, American Arbitration Association and Association for Conflict Resolution.
Henry David Thoreau, Walden (the 150th Anniversary Edition)
A couple of years ago, a friend bought me the 150th Anniversary Edition of Walden – a text I hadn’t read since high school. While building his spartan but serviceable cabin in the woods, Thoreau does a cost-benefit analysis of home ownership, calculating that “an average house . . . costs perhaps eight hundred dollars, and to lay up this sum will take from ten to fifteen years of the laborer's life.”
The thing, as we were taught in law school, speaks for itself. Or as Thoreau put it, “the cost of a thing is the amount of life which is required to be exchanged for it, immediately or in the long run.”
This line stopped me dead in my tracks. Was this phrase more profound to me than the observation that “time is money” just because it appeared in 19th Century prose? Or had I simply lived too much of my life converting my own time into money, shaving hours into tenths, merging them weekly, monthly and yearly with my colleagues’ hours, converting the whole at year’s end into overhead, earnings, distributions and investments.
Whatever the reason, Thoreau's calculus made me suddenly recognize that the sheer raw number of my actual yearly wage had become more important to me than the things it might allow me to purchase, or even to store up against potential future calamity. In all the getting and gathering, I thought, I may have lost the point of job, career, occupation.
And this has to do with mediation in what way?
I often quote Thoreau's aphorism when parties reach impasse. It helps everyone make money transparent again. That money is the means to particular end, not an end in itself. That, even in this cynical age, most people would prefer a fair distribution of resources reached through compromise than total victory at all costs. This continues to mark my own experiences as a mediator, despite the fact that the justice survey is continuing to run 50-50 on the question, "would you prefer to win unfairly or lose fairly."
So as strange as it might seem, I heartily recommend Walden as one of the tomes you tote to the beach this summer along with your soda pop, sandwiches, cole slaw and sun screen.
(photo by QTR)
As I mentioned yesterday, I've launched a new IP ADR Blog with IP attorney and triple-A arbitrator, Les Weinstein.
My mediation practice has been developing in the direction of an IP specialty for the past year. Nearly twenty years ago, Les advised me to specialize at a time when I was saying it's always best to be a generalist.
He was right, of course, and in 1989, I moved to Buchalter, Nemer where I embarked upon a fifteen year career in environmental coverage litigation.
Before joining Les as an associate at Pepper, Hamilton & Scheetz in the mid-80's, I'd handled trade name and unfair competition cases. With Les, I did more copyright and patent work than I had before or since, although I continued to keep my hand in the IP field. In fact, the last case I tried before leaving practice was a copyright case involving the infringing repackaging of an old Kung-Fu movie.
That's the long introduction to the announcement that I've joined forces with Les again, to develop a specialty IP ADR practice. We've each been individually pursuing IP ADR, Les more in the capacity of arbitrator and me more in the capacity of mediator. We occasionally co-mediate multi-party IP disputes together and have found how well we work with one another.
I don't know an IP attorney half Les' age who is more on the cutting edge of the emerging technological, commercial and legal issues than he is. He's an amazing guy with a big firm background -- Graham & James; Squire, Sanders & Dempsey & most recently, the IP firm of Sheldon Mak. It's exciting to be practicing together again -- as neutrals.
Together, we've launched an intellectual property ADR practice and blog. The temporary blog site is http://www.ipadrservices.blogspot.com. Kevin O'Keefe at LexBlog is going to set up the permanent blog for us.
Important aside: an hour with Kevin on the telephone about marketing your practice with a blog is worth the price of the blog and its yearly maintenance. (But don't tell Kevin what a great deal he and his company are or he'll raise his prices and I'm not yet that successful).
The IP practice allows me to do what I love the most, which is to drive a business deal, maximizing commercial strategies and synergies, as well as long-term business planning.
Most of all, I enjoy debunking the prevailing wisdom that a good settlement is one that makes everyone unhappy. When I entered the mediation field, one of my private goals was to give my clients an opportunity to negotiate settlements that made them at least as happy as the business deals they routinely broker. Although it doesn't, couldn't, happen every time, it happens a lot more in the IP field than in any other.
When the parties realize that I'm prepared, indeed, eager, to roll up my sleeves to help them craft the same kind of sophisticated commercial deal that made them technological and commercial successes in the first place, they immediately get alot happier.
That's why I'm moving my practice in the direction of an IP specialty and why Les and I have started the IP ADR Blog. I hope you'll visit us there.
Because I've joined my expanding IP ADR practice with that of AAA arbitrator and mediator Les Weinstein, we've set up a "place holder" IP ADR Blog to reflect our partnership (in the broadest, not the legal, sense) in all things IP.
Do visit the new site if you are the client with IP issues or an attorney with IP clients.
We're excited about the new venture and hope our readers will benefit from the expansion.
Ask any lawyer what's the worst thing about legal practice and 9 times out of 10 the answer will be, "keeping track of my time."
So a huge "thank you" to Tammy Lenski at Mediator Tech for hipping us to the best new way to keep track of time: Jott.
Others may use Jott to remind them to pick up a gallon of milk on the way home, but I'd suggest using it as your time-tracker.
The service is free. You call the Jott telephone number (on speed dial), say "me" to its automated voice and dictate your 30-second (or less) message.
"The Larson matter. I drafted the Complaint on May 16. 2.4 hours."
Jott will send your message, transcribed, to your email box or, if you've got an assistant, to his.
Done. Thanks Jott!
Oh yes. You can also use it to remind yourself to pick up the milk on your way home.
The Enemy of My Enemy is My Friend
Mr. and Ms. Keene (names changed) entered the community mediation conference room and cautiously took their places next to one another at the scarred wooden table. Though slightly wary, their greetings were warm. He touched her lightly on the arm. She pulled away, but smiled back.
After the preliminaries were out of the way -- introductions, "rules of the road," the signing of a confidentiality agreement -- Mr. Keene launched into a low-key but passionate tirade about . . . . . .
THE ATTORNEYS . . . . . .
a topic upon which there was complete agreement.
The attorneys had been
I apologized for the way we attorneys sometimes act as if the dispute is our own; as if our relationship with Judge and opposing counsel is more important or compelling or fun than our interest in our clients; and, as if we know more about what's good for our clients' business (be it the business of running a family or a Fortune 500 company) than our clients do.
By the time Mr. and Mrs. Keene arrived at the door of the Community Dispute Resolution Center, they were not simply exhausted and angry, they were nearly entirely disempowered.
"How do we 'de-power' our lawyers?" they asked.
"By taking your power back," I responded, alert again to my own inclinations to give unsolicited advice or raise problems only I might think the parties have.
I've seen attorneys unite disputants before. Early in my career, I observed the bitter progress of a case involving hundreds of millions of dollars in lost profits and a fight for the control of intellectual property worth more than a billion dollars. After the parties had turned one another into the tax and custom authorities, they met without their white shoe attorneys, settled the case, and sued counsel for malpractice.
The Keenes left the mediation with an agreement in hand and their self-respect restored.
I do not fault their attorneys. I do not know what transpired before I arrived on the scene.
I only know that at some point, the attorneys lost "control" of their clients by asserting too much of it.
When it comes to employment arbitration agreements, it seems like the more bases you try to cover, the less likely a Court is to enforce them.
Even the highly respected Los Angeles-based international law firm of O'Melveny & Myers has proved itself unable to draft an employment arbitration agreement that satisfies California's procedural and substantive conscionability requirements.
Just today, the Ninth Circuit Court of Appeal in Davis v. O'Melveny & Myers held that the law firm's attempt to impose an arbitration agreement upon existing employees with a three-month notice period was both procedurally and substantively unconscionable. (For a criticism of the opinion, click here).
In finding that O'Melveny's attempted imposition of the agreement on its employees was procedurally unconscionable, the Court stressed the firm's "overwhelming bargaining power" and the "take-it-or-leave-it" basis upon which the agreement was proffered. Although the Court distinguished provisions that might permit an employee to negotiate a different deal, given its characterization of O'Melveny's bargaining power, we don't imagine this Court would have read such a clause as anything other than illusory.
As the Ninth Circuit stressed, however, a procedurally unconscionable agreement must be "analyzed in proportion to evidence of substantive unconscionability." It thereupon went on to find four provisions substantively unconscionable: the “notice,” confidentiality and, “business justification” provisions, as well as the limitation on initiation of administrative actions.
The challenged notice provision required the aggrieved employee to "give . . . notice of a Claim [within the year it arose] along with a demand for mediation" or it would be "lost forever." Quoting Richards v. CH2M Hill, Inc., the Court held this provision substantively unconscionable because it would deprive the employee of the right to assert the "continuing violation doctrine available in FEHA suits" a benefit that flows only to the employer.
The challenged confidentiality provision -- prohibiting mention of the mediation or arbitration "to anyone not directly involved" - was also found to be unduly favorable O'Melveny. As the Court explained:
Such restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny “in a far superior legal posture” by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. Id. Strict confidentiality of all “pleadings, papers, orders, hearings, trials, or awards in the arbitration” could also prevent others from building cases. . . It might even chill enforcement of Cal. Labor Code § 232.5, which forbids employers from keeping employees from disclosing certain “working conditions” and from retaliating against employees who do so.
The challenged exemption for alleged breaches of confidentiality was also found to be unenforceable. "As written," held the Court, the provision permitting a "non-mutual exception allowing [O'Melveny] a judicial remedy to protect confidential information" was “one-sided and thus substantively unconscionable.”
Finally, the Court held that the agreement's preclusion of employee complaints to agencies charged with the well-being of California's citizens such as the Department of Labor, was contrary to public policy and therefore substantively unconscionable as a matter of law.
There you have it. One of the best law firms in the country was unable to draft an employment arbitration agreement that could pass public policy muster.
Would anyone else like to give it a try?
(flickr photo: Elevate by Frozenquack)
Every lawyer, business person and neutral interested in controlling his/her future should read this month's article by Catherine Alman MacDonagh and Beth Marie Cuzzone, Perfecting Your Elevator Pitch in the ABA's current Law Practice Magazine.
When I was a young associate, a senior partner in my firm bragged that he could pick up a girl during the time it took the elevator to get from our floor, the 25th, to the ground.
"That's what you have to be able to do to develop a practice," he said gruffly, as I recalled his earlier advice that all a woman has to do to pick up a guy is to "show up." I was certain that "showing up" wasn't a sufficient skill to develop my own Fortune 500 clients but I puzzled over the elevator rule for many years as if it were a zen koan.
Today I learn that "elevator pitch" is an actual term of art -- an "introduction and description of who you are and what you do . . . ; [an] opportunity to define (or redefine) your personal brand or your reputation."
"Communicating your elevator pitch," say MacDonagh and Cuzzone, "allows [others] to remember how you help people" and gives them the ability to "be your commercial."
To be effective, say the authors, your pitch should be ten to twenty seconds in duration, succinct and memorable, spotlight your uniqueness, focus on benefits and be effortless to deliver.
Earlier today I read some great "elevator pitches" in a Los Angeles Times article about Stanford Business School's "Entrepreneur Idol" Competition. The competition required the students to "pitch their best business ideas" in one minute to a panel of four venture capitalists and one technology blogger. The prize was "$2,000 in seed money and connections to a top-level venture firm."
Contest winner Linus Liang held up a diapered baby doll and asked, "What if I could tell you how you can save 4 million babies a year?" His idea? Create a low-cost incubator that could help infants in developing countries.
I have a lot to say about "elevator pitches," but suggest you take a look at MacDonagh and Cuzzone's article first. I'll get back to this topic soon.
I was dancing at the Biltmore Hotel in Los Angeles the night Clinton was elected President. My candidate hadn't won many Presidential elections, so I was pretty happy and danced into the early morning hours with a young stranger, a smoldering Latin who spoke in a heavily accented but intricately articulate English.
Later, on a semi-blind date, I casually asked him why, as an Argentine national, he was involved in Democratic Party politics.
"Because Jimmy Carter saved my life," he responded.
Then he told me his story, about love and betrayal and deception; about the Dirty War in Argentina; and, the experience of coming to America.
He'd been a student demonstrator, having an affair with an activist while continuing to date his long-time girlfriend. The things we do when we're young and casually cruel to the people we love. The woman with whom he'd been having the affair was deeply involved in politics while he was recreationally protesting, burning mattresses in the streets, shouting slogans.
All three were arrested and sent to prison. Conditions were dire. There was much he didn't, and wouldn't, talk about.
What he did say was this:
"After Carter was elected, they sent the Red Cross in to check on prison conditions. I was also an Amnesty International Prisoner of Conscience, so it wasn't just Jimmy Carter. Amnesty International saved my life too. Saved all three of us."
So we do make a difference. We can save lives.
So I refer my readers to the Amesty International "Close Guantanamo" Blog.
First knowledge. Then action.
It's the least we can do.
While our brothers and sisters (at least one of whom, Omar Kahdr, was fifteen years old when first imprisoned) continue to suffer agonies beyond imagining at the off-shore U.S. gulag at Guantanamo, I decided to conduct an extremely unscientific survey at the intersection of Justice and Winning.
Before discussing some of those survey results (deadline extended -- take the survey NOW!) I remind my readers of the differences between distributive justice ("how much of the pie should I fairly get") and procedural justice ("how is my share of the pie fairly determined?"). See my earlier post on the several kinds of justice that scholars of dispute resolution study here.
Would We Rather Have Justice or a Bigger Piece of Pie?
One of the survey's goals is to find out what attorneys and mediators believe they would rather have --most of the pie or a fair means of dividing it.
Responses on this topic continue to run neck and neck. If forced to choose between winning in an unfair process or losing in a fair one, 53% of our mediators and attorneys would choose winning over fairness.
What Our Respondents Think Justice Is
What do our respondents mean when they use the terms "fair" or "just"? The survey permits a limited, but telling, range of "justice" options. Our respondents were asked to check as many of the "following factors that indicate . . . the negotiation or mediation process was 'fair' or 'just.'"
I list here only those that received more than 50% of the "vote."
The mediator
"listened carefully to all parties" . . . . . . . . . . . . 91%
"appeared to understand party positions" . . . .84%
"appeared to understand party needs" . . . . . . 84%
"was impartial" . . . . . . . . . . . . . . . . . . . . . . . . . . . 83%
"suggested resolution options impartially" . . . 69%
The parties
"listened to one another" . . . . . . . . . . . . . . . . . . .66%
"were honest in what they disclosed" . . . . . . . . 64%
"understood one another" . . . . . . . . . . . . . . . . . . 53%
To sum up, more than fifty percent of the (primarily mediator) respondents, if forced to choose, would rather "win" than have an attentive impartial mediator who understood party positions and needs and suggested resolution options impartially.
More troublingly, if the choice comes down to winning or losing, most of our respondents would prefer to be dishonest or to have dishonesty mar the proceedings, than to honestly lose.
Think Locally, Act Globally
This is no idle survey. When casting my own vote, I forced myself to think about how I really behave "locally" as opposed to the way I think I should behave. If the cashier gives me more change than I deserve, I always give it back. But if I don't discover her error until I get home, I'm unlikely to drive back.
If we can extrapolate from this "local" practice, I am honest when it is convenient to be so and not so much when it is not.
Which likely explains why a country of laws and, more particularly, why we as lawyers, have let the Guantanamo situation exist and persist. It's not because we don't care. It's because we're busy.
Nor do I think that if any of us thought about it longer than it takes to fill out a survey, we would jettison procedural fairness for a result that is best for ourselves (be it the largest slice of the pie or the illusion of safety in a dangerous world).
Which takes us full circle to the pained recognition that we have allowed injustice to flourish at Guantanamo and elswhere on our watch.
Now what? I recently said to someone, "I feel like standing naked in front of the White House with my hair on fire demanding representation and a fair process for the detainees. But because I blog, I'm blogging about it."
It's a start. But it's not enough.
What do YOU think we should be doing?
OK, so the part about Paris Hilton was pure tabloid (sorry, Paris, just kidding) but look! the mysterious metallic ball part is true! Though like most headline-catching mysteries, not all that interesting after you get past the excited utterance.
Justice, however, should be neither hype nor mystery.
There are only two days left for you to take the Negotiation Justice survey here.
Litigators: tell your mediators what protections and benefits you're looking for in a mediation.
Mediators: ask your lawyer friends to take the survey.
And, oh yes, the people whose disputes we resolve. Clients. Yes, that's you. The people who hire lawyers. Tell us all what it is you're really looking for. We promise we'll undertake a great effort to serve you better.
Preview from the Justice Survey
If you had to choose, would you prefer to lose in a fair process or win in an unfair process?
Win even if the process was unfair 54%Lose so long as the process was fair 46%
Agree? Disagree? Take the survey and let us know!
(photo The Real Us . . . by sesame ellis, flickr)
Thanks to Diane Levin (hey! nice new web site Diane) at the Online Guide to Mediation for hipping us to In this case . . . a blog of people telling their stories about the law.
Brought to us by Tracey Broderick, the blog's mission is to bring you people's stories about their personal encounters with the justice system. As Tracey explains:
In this case is a blog of personal stories about the American legal system. If you’ve gone through a divorce or served on a jury, you have a story. If you’ve served time or argued in court, you have a story. Any personal experience with the law can be a story. These stories show when the law does and doesn’t work; how it angers and inspires us. They describe the law and what it means to us all living our modern lives here in our country. This blog brings these stories together so we can hear each other.
I edit the stories. Some are sent to me; some are drawn from interviews with people who want to talk in person. I keep each story as true as possible to the words and voice of each person. If you have a story for the blog, please let me know–I love to help people be heard.
This blog should be required reading for anyone interested in justice issues -- attorneys, law professors, local, state and federal government officials, probation officers, therapists, social workers, arbitrators, mediators, police, sheriffs, bailiffs, judges, court reporters (the stenographers of raw American conflict), students of the criminal and civil justice systems, law students, activists, preachers, teachers, spouses, people who would like to be spouses, people who are tired of being spouses, parents, and children over the age of consent . . . . . gee, I think that means everyone.
Let me rephrase. This blog should be required reading for everyone. It's a small but powerful exercise in little "d" democracy. The kind that grows from the ground up. Not the kind that is brought to you by foreign lands at the point of a gun.
And following Tracey's example, I too will henceforth give credit to the myriad flickr photographers whose photos I use more than once a grateful day of my year.
Dear Readers,
I haven't received nearly enough attorney and/or disputant responses to the Mediation Negotiation Survey, but I can share with you some preliminary thoughts, primarily of mediators, about the qualities they think you're looking for.
Patience, by the way, is in the lead as the most-cited essential mediator quality.
Are they right? Take the Negotiation and Mediation Justice Survey to let them know now!
In Answer to What Qualities a Good Mediator Should Have, individual responses include:
The question whether mediation should be "fair" or "just" elicited the following thoughtful response from one of our attorney readers, who, as you can tell from the context, primarily represents plaintiffs seeking to recover commercial debts allegedly owed by individuals and small businesses.
Distributive Fairness
"I only think a settlement is 'fair,' says our reader, "when it incorporates the mathematical calculation of prospective damages multiplied by a risk factor of litigation (i.e. 80% chance of winning $100K, means an $80K settlement is fair)."
A mediated resolution that is "fair" under this definition only results, he continues,
when the other side "does the math" - most defense counsel just bluster and try to throw up "what if" roadblocks that derail a serious discussion about resolving the whole dispute. They don't do the math, and even if they did, there is enough disagreement over the "odds" that the process is far from transparent.
Distributive Injustice
"Perhaps," says our correspondent,
we have a different interpretation of what "fairness" is. I have plenty of situations where I sue on [a] debt [where,] by the time the . . . . [contractual] interest and attorneys' fees get worked in . . . , a $5,000 debt becomes $12,000 judgment and no [one] in the world thinks this is fair. But most eventually "settle" . . . not because they want to, or believe that the . . . settlement is "fair", but because the option of coming up with [the funds] to hire an attorney, and then eventually lose, is less attractive than trying to pay on a monthly basis.
In this case, is the settlement fair?
From my client's perspective, it will get paid more than 100% of its initial principal due, and this type of settlement completely negates the possibility of zero recovery for the creditor if the debtor is judgment proof. . .
[Many defendants are] willing to pay to get out of the case for "peace of mind" and pay
more than what they thought was fair.Fair resolutions only work when everyone is willing to play fairly - and because everyone (especially litigation attorneys) feels that dispute resolution is a zero sum game, the little tactics we use in litigation skew the process so ADR really becomes a big poker game. And when people hide information, and outside factors to the dispute loom larger than the dispute itself, it becomes less about fairness and more about force.
I listened to This American Life's broadcast on the detainees at Guantanamo for the first time this week and have this to say.
The last time I was this shocked by American injustice was in my childhood, sitting in my parents' living room watching black & white TV broadcasts of police taking fire hoses and attack dogs to peaceful demonstrators in Mississippi.
Really. And there have been a lot of shocking events since then.
I'm providing you with a link to that This American Life episode below, after providing you with the following excerpt from Chris Suellentrop's New York Times Blog The Opinionator on the same subject.
The Washington Post editorial page joins the editorial pages of The New York Times and The Los Angeles Times in despairing over the Democratic Congress’s failure to implement “the reform that may be most achievable — the restoration of the ancient right of habeas corpus to the Guantanamo detainees.”
House Democrats have not “hesitated to pick fights with the administration over such issues as whether the hiring and firing of U.S. attorneys was properly managed, or whether Karl Rove and Condoleezza Rice can be compelled to testify about their actions as presidential advisers,” the Post editorial notes.
“Why not fight for the right of habeas corpus? Maybe because it’s not really a priority for the Democrats, after all.”
Click here for This American Life's Peabody Award Winning Broadcast Habeaus Schmabeus -- MUST LISTENING for anyone interested in restoring the rule of law in the United States and having a rat's chance in %$^#@ of of holding our heads high (or least above ground level) in the international human rights community again.
Having spent nearly my entire career litigating the terms of ambiguous contracts, I'm not certain careful drafting is the only answer, but its certainly one way to avoid the dreaded process server pounding on your door.
As I used to tell my clients, litigation and trial are the legal equivalents of heart transplant surgery. Pricey and potentially life-threatening. Careful contract planning and drafting is the yearly medical physical -- prudent and worth its weight in top-flight litigators and dazzling trial lawyers.
It is for this reason that I refer my readers to "AdamsDrafting," a first-class transactional blog and website I stumbled upon this morning.
Ken Adams, who will be here in Los Angeles in June has apparently made a career of spreading the wisdom of quality writing in the drafting of contracts. Because it looks like he's the Shakespeare of the trade, I'm recommending that you subscribe to the RSS feed of AdamsDrafting Blog and avail yourself of Mr. Adams' wisdom when he appears in your town.
I'm not worried that Adams will put contract litigators and mediators out of business -- there's no way you can anticipate and provide against everything. But you can avoid the repetititve pitfalls like the one Mr. Adams describes here.
Thanks for sharing the wisdom Ken!
Here's what I like about the National Arbitration Forum -- it responds promptly and effectively to its clients -- a quality you look for in an ADR provider.
Earlier, I hipped my readers to NAF's inclusion of depublished cases in its excellent free ADR Law and Policy Update, a service upon which I rely to keep myself current.
Because I was taught never to rely upon case summaries no matter what the source, before posting an update from NAF, I check it out on WestLaw or Lexis. Sure enough, a couple of cases cited had been depublished.
I let NAF know about California's (unhealthy) habit of depublishing more cases than it publishes and received, within days, the following response:
Good Morning Vickie! In response to your email: our hope is that readers will routinely ensure a case is "good law" before citing it to a court or arbitrator. At any rate, we, the National Arbitration Forum, thank you for pointing out the recent increase in de-published California decisions.
In light of your helpful feedback, we plan to add a disclaimer to the ADR Case Law Archive and perhaps the ADR Law & Policy Update reminding subscribers not to assume that case summaries contain information about subsequent developments.
Thanks again for “hipping” us to the de-published decisions!
Best,
Christina Doucet
Communications Specialist
National Arbitration Forum (FORUM)
You're welcome Christina! And thanks, as always, for your quick and satisfying response!
The Litigation and Dispute Resolution Sections of the Los Angeles County Bar Association invite you to participate in the Second Day of WINNING IN NEGOTIATIONS.
(brief aside: Do you want to score a victory for your client or simply resolve your dispute short of trial when mediating your case? Let us hear your voice in our national Negotiation and Mediation Justice Survey here -- 3 minutes max, promise)
Ad copy for the Negotiation Seminar below:
Want Inside Information Straight from Some of the Most Successful Professionals? Session 1 was great...Session 2 was awesome! Join us for the last session that will focus on your negotiation skills!!!
May 14th, 2007
6:30 pm -- 9:30 pm
In this cutting edge workshop, you will learn how to utilize effective and successful techniques and strategies to win in negotiations.
Please join the following attorneys and mediators for the last day of this interactive and highly engaging seminar entitled “Winning in Negotiation.” This panel will use film clips and interactive role playing to highlight new methods to achieve an understanding of negotiation principles and enhance your negotiation skills.
Panelists include:
Raymond P. Boucher, Kiesel Boucher & Larson Panelist
John A. Girardi, Girardi Keese & Crane Panelist
Stephen J. Henning, Wood, Smith, Henning & Berman, LLP
Jeffrey Kichaven, JAMS Moderator
Lisa Klerman, Mediation Office
Gig Kyriacou, Mediation Offices of Gig Kyriacou
Alexander S. Polsky, JAMS Moderator
Martin D. Singer, Lavely & Singer , Panelist
Amy Solomon, Girardi Keese & Crane Panelist
Join us for insider tips from the best in the field: experienced negotiators and mediators, judges and other experts who will share their expertise with you.
Topics include:
• Distributive bargaining
• Development of target and resistance points
• Tactics in distributive negotiation
• Breaking Impasse
• Developing listening skills as a negotiator
• Why negotiations fail
• Negotiation role plays and discussion
... and so much more...
For more information please call Gemma at 213-896-6441; to register, CLICK HERE or call 213-896-6560.
I don't have the statistics but know from experience that construction defect litigators mediate their cases to settlement more often than, say, general commercial litigators (my background).
Earlier in the week, I posted a "Negotiation and Mediation Justice Survey" in this blog whose purpose is manifold.
Your Views on Optimal Mediator Practices.
As I was devising the survey, I decided to take the opportunity to get a good sampling of mediator and attorney attitudes toward standards of mediation practice.
So I put in some questions on the mediator qualities I've been told attorneys are looking for as well as those that I believe to be important, with an open-ended question to include anything I'd missed.
Here's the Problem
I've got wayyyyyyyyyyyyyy TOO MANY mediator responses and way too few attorney responses.
I really need to hear from YOU -- THE CONSUMER OF MEDIATION SERVICES.
Already, the results are surprising. I will share them with my readers (and with anyone who takes and identifies themselves at the end of the survey -- you may take it anonymously) in a couple of weeks.
I'm also writing a law review article (this is no idle threat, I have one published and one about to be published) on negotiation and mediation justice issues that will include your responses.
So I'm asking all Construction Defect Attorneys to let me know what they want and need from mediators in the hope that we can begin to have a national conversation between mediators and litigators about where we're meeting one another's expectations and where we're not.
It will be good for all of us. Please take the survey!
I don't have the statistics but know from experience that employment and family law attorneys mediate cases more often than any other specialty with the possible exception of construction defect litigators.
Earlier in the week, I posted a "Negotiation and Mediation Justice Survey" in this blog whose purpose is manifold.
As I was devising the survey, I decided to take the opportunity to get a good sampling of mediator and attorney attitudes toward standards of mediation practice.
So I put in some questions on the mediator qualities I've been told attorneys are looking for as well as those that I believe to be important, with an open-ended question to include anything I'd missed.
Here's the Problem
I've got wayyyyyyyyyyyyyy TOO MANY mediator responses and way too few attorney responses.
I really need to hear from YOU -- THE CONSUMER OF MEDIATION SERVICES.
Already, the results are surprising. I will share them with my readers (and with anyone who takes and identifies themselves at the end of the survey -- you may take it anonymously) in a couple of weeks.
I'm also writing a law review article (this is no idle threat, I have one published and one about to be published) on negotiation and mediation justice issues that will include your responses.
So I'm asking all Employment Attorneys to let me know what they want and need from mediators in the hope that we can begin to have a national conversation between mediators and litigators about where we're meeting one another's expectations and where we're not.
It will be good for all of us. Please take the survey!
The big news in the arbitration world this week is the request made to the S.E.C. by Senators Leahy and Feingold to ban the mandatory arbitration of claims made by customers against their brokers. An excerpt from the New York Times article Dear S.E.C., Reconsider Arbitration, with a link below.
ARGUING that it is wrong to force investors into arbitration when resolving disputes with their brokers, two prominent United States senators have asked the Securities and Exchange Commission to ban the Wall Street practice of requiring customers to sign away their rights to bring their grievances to court.
Last Friday, Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, and Russell D. Feingold, the Wisconsin Democrat and a committee member, wrote to Christopher Cox, the S.E.C. chairman, asking that it ban mandatory arbitration “in fulfillment of its statutory duty to protect individual investors.”
Arbitration is fine for straightforward disputes involving modest claims, the senators said. But for many investors, the courts are preferable. Arbitration not only lacks a court-supervised discovery process, they wrote, it does not require panelists to follow rules of evidence or provide written opinions justifying their decisions.
for remainder of article, click here.
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We've been following the case of Simmons v. Ghaderi since the opinion appeared in October of last year. The case went up to the California Supreme Court for review in December '06. The issue, as defined by Dr. Ghaderi is:
whether there can be an enforceable settlement agreement when all evidence upon which it is based is inadmissible under the mediation statutes.
As our previous commentary on this case indicates, we believe this accurately states the matter at issue and the source of the lower court's error. That commentary, along with a mediation analysis using the Simmons' facts as a hypothetical, can be found here, here and here.
I'm supplying you with the reply brief only. (and adding the recently posted CDRC Amicus Brief here)
Once upon a time (at least 20 years ago) a Superior Court Judge confided in me that if s/he were overwhelmed with work and facing a calendar call, s/he would read the reply brief only "because it contained all the arguments."
YIKES!!
This did considerably alter my briefing habits.
Here the Reply covers most of the arguments in the Opening Brief and the responses to the Opposition, which I haven't seen. If anyone wants to send it along to me, I'll post it too.
. . . you'll want to attend Dina Lynch's upcoming Breakthrough Summit- Expanded 3 Keys on Friday, June 8, 2007, between 9 and noon PST at Preservation Park, Oakland, CA; Robinson Classroom.
Here's Dina's description of the seminar:
The Summit- the Power of Collaboration
There's palapable excitement that happens when folks get together to create something brand new and the Summit is no exception.
You'll be inspired by a ton of ideas that can shape your practice. You'll leave with your own written 'road map' and you'll be accompanied on your journey to success by all the interesting practitioners who will become part of your network.
With the ADRPracticeBuilder community and those folks, just imagine how supported and confident you'll feel.
Seminar Topics:
This is a full morning that will definitely give you food for thought and plenty to do!
Topics covered:
What Will Your Business Bring You?
Business Systems You Can't Survive Without, including Your Fab 4: Attorney, Bookkeeper, IT person and VA
Digging into the 4 Questions to Find your Niche
Related Niche Groups- Your Secret Weapon
Getting Known the Easy Way: Article Marketing
Your Cup is Overflowing: Eliminating Limiting Beliefs
You'll leave this fun, information-packed morning with a workbook that includes:
* a written Business Vision Statement * a Checklist for evaluating your 'business system health' * a Worksheet for explore the 4 Questions * a Roadmap for finding Related Niche Groups * a template for writing articles and submission site list
All this quality information and support for under $100!
SUMMIT DETAILS HERE
For questions, please email email: dina@adrpracticebuilder.com or call 617 553-0423
Our thanks to David W. Dresnick of the Arbitration Mediation Group for passing along the recent New York Times article on the Vanishing Jury Trial -- Cases Keep Flowing in But the Jury Pool is Idle
By Adam Liptak, April 30, 2007 New York Times.
This excerpt was of the most interest to me & the most surprising:
The jury trial is a distinctively American tradition in a cultural sense, too. Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul Butler of George Washington University calls "as fundamental a part of our culture as jazz or rock 'n' roll," is dying.
(emphasis mine)
David Dresnick also generously passes along Knocking Heads Together from the February 3, 2007 issue of the Economist. Excerpt below:
Knocking heads together
Why go to court when you can settle cheaply, quickly and fairly elsewhere?
THE Bank of Credit and Commerce International's lawsuit against the Bank of England lasted 13 years and cost some £lO0m ($196m) in legal fees. The Bank of England's governor disgustedly described it as "the most expensive fishing exercise in history". The presiding judge, Mr. Justice Tomlinson, called it a "farce".
Had the parties agreed to mediation it would have taken probably a day and cost just a few thousand pounds. According to the London-based Centre for Effective Dis¬pute Resolution (CEDR), one of Europe's biggest mediation bodies, of the 3,000 or so commercial disputes that are subjected to mediation in London every year around 70-80 % reach a settlement within one or two days, with a further 10-15% settling a few weeks later.
Litigation used to be the natural way of settling disputes, especially in advanced countries. Then clogged courts and ever costlier lawsuits made arbitration look bet¬ter, especially in cross-border commercial disputes. But it often proves no cheaper, fairer or even quicker.
In America, from filing a complaint to arbitration decision takes, on average, 16.7 months. So out-of court alternative dispute resolution (ADR) procedures, such as mediation, are now in vogue. The late Sir Michael Kerr, former president of the London Court of Interna¬tional Arbitration, was a leading convert.
"In the same way’s I have had my mind changed about litigation in favor of arbitration, my long devotion to arbitration is now being eroded," he said.
for more, click here.
Thank you to our friend Alicia Freundlich, a Straus LL.M candidate, for passing along this case summary copied verbatim from the Newsletter of the Business Law Section of the State Bar of California.
(right) More serious balloon popping by the ever popular Charles Fincher of LawComix.com, who every so graciously lets me use these fabulous lawyer cartoons for free. Do support him by paying cold hard cash for a signed copy, or better yet, a custom-made print for your favorite partner, judge, client, administrator, legal assistant, or associate.
COURT UPHOLDS ARBITRATOR’S ABILITY TO USE “MULTIPLE INCREMENTAL OR SUCCESSIVE AWARD PROCESS” AS A MEANS OF FINALLY DECIDING ALL ISSUES
Roehl v. Ritchie
2007 DJDAR 1480, 2007 Cal App LEXIS 125 (Ct. App. 4TH Dist. 1/31/2007)
This case arose from a dispute between the sons of a decedent and his second wife over distribution of the estate. The dispute was arbitrated and the arbitrator issued an award on March 1, 2004 concerning most of the issues in controversy. Among other things, he ruled that the wife had a 75% interest in the decedent’s home and that the sons had a 25% interest, which should be distributed to them because the wife was still living in the home.. The arbitrator indicated that the home was valued at $575,000 based on a November 2003 appraisal which covered the home and some other assets. He ruled that the appraisal would be the basis for distribution “unless the trustee determines that changes will be needed…if…in light of new developments since [November 2003], a somewhat different distribution of assets would benefit the estate” and he offered to work with the trustee to ”review any questions he may have concerning the orders and findings made by the arbitrator”.
The wife died one week after the award was issued. The wife’s niece, her successor in interest, successfully moved to confirm the award and that decision was affirmed on appeal in an unpublished decision. While the appeal was pending, the trustee petitioned the arbitrator for instructions on several issues, including whether to value the home as of the time of the award or as of the time of the distribution of the estate assets. In October 2005, the arbitrator issued a second award in which he, inter alia, valued the home at $1,050,000. Because this would lead to a larger distribution to the sons, the wife’s niece opposed confirmation of the award on the ground that this was a correction or amendment of the original award and thus beyond the arbitrator’s power because it occurred long after the time allowed to correct or amend.
The trial court confirmed the award, the niece appealed, and the Court of Appeal affirmed. It ruled that the arbitrator, by allowing for an opportunity by the trustee to amend the valuation, plainly left the matter of the value of the home up for future consideration if the trustee determined that changes were needed.
Note: It can sometimes be difficult for a party to discern whether an arbitrator is correcting an award, amending it, or issuing an incremental or successive award and that is what happened in this case. Code of Civil Procedure 1284 provides that a party must apply to the arbitrator for correction of an award no later than ten days after service of a signed copy of the award on the applicant, other parties must object within ten days after the application is delivered or mailed to them, and the arbitrator must issue any corrected award not later than thirty days after service of a signed copy of the award on the applicant.But, in Delaney v. Dahl, 99 Cal App 4th 647, 659 (2002), the Court of Appeal held that an arbitrator may amend the award at any time prior to confirmation of the award so long as the amendment is consistent with other findings on the merits of the controversy and does not cause demonstrable prejudice to the interests of a party. And in Hightower v Superior Court, 86 Cal App 4th 1415, 1431 (2001), the Court of Appeal affirmed an arbitrator’s ability to use “a multiple incremental or successive award process as a means, in an appropriate case, of finally deciding all submitted issues”.
(emphasis my own)
We here at Settle It Now Negotiation Blog appreciate and rely upon the National Arbitration Forum's free ADR Law and Policy Update. We republish NAF summaries of ADR cases important to our clients' and readers' practices.
I've now hipped NAF to California's unusually high number of depublication orders resulting in the depublication of many of the recent ADR cases I've seen reported in NAF'S ADR LAPU.
I find NAF's case summaries among the best in the field and continue to recommend that you subscribe to the free newsletter. In doing so, however, I caution my California readers to check for depublication orders on the California cases reported.
by clicking on THIS LINK HERE, NOT ON THE TITLE LINK.
MY GREAT GOOD BLOGGING FRIEND DINA LYNCH AT MEDIATION MENSCH AND ADR PRACTICE BUILDER ASKS OF THIS SURVEY:
"SHOULD I TAKE THE SURVEY AS A MEDIATOR OR A CLIENT/LAWYER?"
THANKS FOR HELPING ME SEE THE CONFUSION DINA!
HERE ARE THE FUNDAMENTAL QUESTIONS UNDERLYING THE SURVEY:
Are we as mediators in the business of delivering justice or simply final resolution?
Do the attorneys and/or clients who use our services WANT US to be in the business of delivering justice (or enabling it?) when we help them resolve a dispute?
HERE'S THE ANSWER TO DINA'S QUESTION:
You can't really take the survey as a mediator. You need to take it as a lawyer serving clients or as the client itself.
THE QUESTIONS ARE NOT ASPIRATIONAL, i.e., would you REALLY rather WIN at any cost or LOSE fairly?
That's a genuine question.
The answers can be anonymous.
It's not an easy question to answer truthfully.
Try your best to put yourself back into a situation where you really wanted to prevail.
Now answer the survey! Here's the link to the survey again.
We'll post the results here next week.
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The year's must-read California Litigation Journal article is Justice Ignazio Ruvolo's "It's Time to Re-examine the State of Civil Litigation in California." You have to be a member to read the issue on-line (here Crisis in the Courts?) but if you're not, find a friend who is and steal her copy.
Justice Ruvolo begins his concise history of the state of California's courts by suggesting that "if your bar number has fewer than six digits, then you doubtlessly witnessed firsthand the crisis that was the progenitor of the current state of civil litigation in California."
He not only proceeds to swiftly chronicle the way we got to mega-firms, six-figure first year associate salaries, and partner-free-agency, but also to question whether the Courts are doing the public a disservice by continuing to provide ADR services. A few thought-provoking excerpts below:
If the courts intend to stay in the ADR business for all time, some complain that they are not now competing with private ADR very successfully. One reason for this non-competitiveness is inadequate funding . . . . [C]ourts cannot afford to provide uniform training for mediators or to pay for mediation services and must rely on voluntary panels which compete with fee-generating private ADR for the time of neutrals. Some believe that the courts must necessarily impose a level of procedural uniformity for court-sponsored ADR that is inimical to the creativity and flexibility that is at the heart of successful mediation.
Of perhaps greater concern is the growing view that ADR-related activities by the trial courts are diverting money and resources away from the judiciary's core role: that of providing adjudicative processes to litigants . . .
Since ADR has truly become part of the legal system's culture, perhaps then the courts could safely leave ADR largely to the private sector. If the judiciary limits its role in ADR it will have the associated benefit of freeing judicial resources needed to shore up the court's adjudicative services. Case management, as it relates to ADR, might focus on locating those cases in the civil justice system that are suited for non-traditional resolution but which lack the financial resources to employ ADR. These are the cases that should be the beneficiaries of court-sponsored ADR.
(emphasis mine)
I promise not to walk down memory lane about paper, pen, ink, envelopes, stamps and the leisurely way we all used to communicate with one another.
I will only refer you to humorist Dave Barry's review of SEND: The Essential Guide to Email for Office and Home by David Shipley and Will Schwalbe from the coming week's New York Times Book Review.
(to buy it, click here)
Thank goodness Shipley and Schwalbe have included in their concise and lively tome, “Five Ways to Apologize for an Inexcusably Tardy E-Mail Reply.”
Dave Barry's Belated Amends
"On that last topic," writes Barry,
the authors advise that “it’s always better to send a hideously late response — even an inadequate one — rather than none at all, if you have any interest in maintaining a relationship.”
With that in mind, I want to state the following: Bill Osinski, I’m sorry I never replied to you regarding that thing you e-mailed me two years ago. I got swamped. It got so bad that I was doing my e-mail in the “Small World” ride. But that is no excuse, so I’m stating here in The New York Times Book Review that I am worthless scum.
Victoria Pynchon's Amends
I'm glad Dave Barry had only one such amends to make. I have three currently keeping me awake at night (you'd think it would be more efficient to just get up out of bed and respond). I'm certain there are more of which I'm blissfully unaware.
My friends are so used to the apology accompanied by the "worthless scum" admission, that I have to do Dave Barry one better and include in my amends a promise that in the future I will really really really make an effort never again be inexcusably tardy.
Apologees, you know who you are.
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More Unsolicited Advice for Young Attorneys
Because I'm getting a lot of "hits" to this post, I'm providing my readers with additional resources on effective use of email -- 20 Rules of Writing Effective Business Emails by Paul Soltoff of SendTec Marketing; the copyblogger's warnings about Five Grammatical Errors that Make You Look Dumb (yes in email too); Is Email Marketing Right for Lawyers from Tom Kane's Legal Marketing Blog and Between Lawyers' dated (2005) but still essential E-Filing and the Learning Curve.
From our friends at the Neuromarketing Blog, we learn that twenty-somethings are more risk-averse than seniors.
Story: Mediation Practice
In my mediation practice, I find that people accurately assess how risk-averse they are and that they will readily tell you why ("I was poor"; "I was rich"; "I survived the Viet Nam War"; "I lost my parents when I was ten and was sent to live in an orphanage" etc., etc.)
Because I now help people make decisions on a weekly if not daily basis, I know that both the "why's" and the "therefore's" of risk-tolerance are as unique as fingerprints.
Story: Dad and the Grapes of Wrath
I, for example, was raised by parents who experienced the Great Depression. My father's family worked its way west from Nebraska to Portland and finding no source of sustenance there, drove the model-T south through California's fertile Imperial Valley, picking fruit and vegetables on the way (the entire family, including all children old enough to pick).
Dad's family eventually settled in the foothills of San Diego (Ramona) where they raised chickens. His mom took in the neighbors' laundry to fill in the financial gaps.
Other than Mr. Thrifty, Dad is the most financially risk-averse person I know. (oh no! you DO always marry your dad!)
Story: Me and Mr. Thrifty
But let's go to the second generation. Raised by depression-era parents, my older sister is incredibly financially risk-averse and I (to Mr. Thrifty's horror) am on the far end of risk-courting. Mr. Thrifty's childhood financial distress, on the other hand, seems to have produced two financially prudent children -- neither pathologically "tight" nor abnormally risk-seeking.
But this is all anecdote, you say.
Yes, but the truth resides in the particular, not in the general.
Story: Innocence and Experience
At the beginning of the semester at the Straus Institute one year, the professor asked each student to jot his or her greatest fear on a piece of paper. Roughly half of the class was post-forty mid-career people and the other half twenty-something law students.
I was genuninely shocked by the result. In a roomful of statistically over-achieving outliers, every twenty-something law student said "failure" and every mid-career student said "nothing."
If pressed, I'm sure we mid-career types could have populated a lengthy list of fears: ill health, war, earthquake, loss of our children, etc., etc., etc. That our first response was "nothing," however, said something about us. What? And why were all these bright, talented young people who were so clearly successfully achieving so afraid of failure.
Then it struck me. We mid-career people were not afraid of failure because we had likely already failed. And survived. Rather joyously. The law students who haven't yet failed think failure will be a far greater catostrophe than it ever actually is. This is not only the wisdom that comes with age, but also the new finding of the neuroeconomists.
Finally! the Neuroscience
In a 2005 article in the Illinois Law Journal, Law and the Emotions: The Problems
Affective Forecasting (80 Ind.L.J. 155, 167) Syracuse Law School Professor Jeremy A. Blumenthal summarizes the current research on one's ability to anticipate the degree of suffering that might be caused by failure as follows:
although people are relatively adept at knowing which emotion they will experience and whether it will be positive or negative, people are surprisingly inaccurate at predicting the intensity and the duration of those emotions. Moreover, this is so even for relatively “straightforward” emotional experiences, such as winning the lottery or suffering severe injuries. It is on such inaccuracies—in predictions of the intensity and duration of future emotional experiences—that most of the affective forecasting research has been focused.
Id. (emphasis added).
Parting thought? There's no greater gift to one's peace of mind than failure.
Birthday Gratitude List
We're not opining about the recent patent ruling other than to say that the Supreme Court's KSR v. Teleflex opinion is causing quite a stir.
For law students and new attorneys, the transcript of the oral argument before the Supreme Court is here for your edification.
That was Al Gore's granddad who invented the bread slicer, no? Gore changed his name from Rohwedder at Ellis Island I understand.
For a cogent analysis by the Duane Morris firm of this and the Microsoft opinions handed down by the Supreme Court on the same day, click here.
