Here's the road map -- Ken Cloke's new book, Conflict Revolution, Mediating Evil, War, Injustice and Terrorism -- How Mediators Can Save the Planet.
Pre-order here now! Not convinced you have the power? the skill? the ability? the knowledge? the courage? the audacity? check out the review below by clicking in the right hand corner and then choosing "view full screen" at the bottom of the drop down menu.
Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more free documentsVictoria Pynchon, Settle It Now Dispute Resolution Services, 499 North Canon Drive, Suite 400, Beverly Hills, California 90210 T.323.217.5162 F.323.852.1535 vpynchon@settlenow.com www.settlenow.com
Tuesday
Negotiate a Revolution in Conflict Resolution?
Friday
We've Moved to Negotiation Law Blog Dot Com
If you've landed here, please click here for the new Settle It Now Negotiation Blog.
Sunday
Tuesday
Ready, Set, Go . . . .
to our new blog site . . .
The Settle It Now Negotiation Blog is moving to http://negotiationlawblog.com.
The new blog will be easier to read and to receive. You'll be able to sign up for the RSS feed so you won't have the Blog cluttering up your email box (or being caught by your company's spam catcher).
The new blog has lots of other great features as well, which we'll all be learning to use together.
So don't be surprised if you don't find settleitnow.blogspot.com here in a couple of weeks. Don't worry. We'll leave a link with a candle glowing in the window to direct you to our new home.
Victoria Pynchon, Settle It Now Dispute Resolution Services, 499 North Canon Drive, Suite 400, Beverly Hills, California 90210 T.323.217.5162 F.323.852.1535 vpynchon@settlenow.com www.settlenow.com
Wednesday
BATNA's and WATNA's
Is Litigation a Better (or Worse) Alternative to a Negotiated Agreement?
I was thinking immodestly about what a great deal my own mediation fees were the other day. A deposition transcript alone, I was thinking, must cost only a little less than my half day fee. Casting about the internet for a good source on the cost of a deposition, I ran across attorney-mediator Thomas A. Cohen's article, Anatomy of a Lawsuit, which he has graciously given me permission to re-print for you here.
Even the most savvy business executive could benefit from reading this step-by-step guide to the great American pass time, litigation.
ANATOMY OF A LAWSUIT
by Thomas A. Cohen
So. You want your piece of the American dream. You want to do the dance sensation that is sweeping the nation. You want your ship to come in. In short, you want to file a lawsuit. Here's what you can expect: the steps involved, the costs, and the likely result.
We will assume that you have cleared the first hurdles: you are aggrieved; the law can furnish relief; and there appears to be some reasonable chance of winning and collecting the judgment. We will also assume that you can assert jurisdiction over the defendant in either State or Federal court.
THE COMPLAINT
A lawsuit begins when your attorney drafts a complaint. This is a written pleading which identifies the legal and factual contentions involved, and sets forth what a party proposes to prove at trial so that his opponent will know what contentions he must be prepared to meet. The complexity of the complaint varies with the complexity of the issues to be tried. At the simplest level, certain disputes are so run of the mill that a Judicial Council form complaint may be filled out by checking certain boxes and filling in a few sentences of narrative. For example, a form complaint may be used for the collection of a written promissory note. In contrast, a class action alleging that Hollywood studios have conspired to deprive writers of profits from feature films (an actual pending suit) requires significant detail covering many pages.
THE COST OF THE COMPLAINT AND ITS SERVICE ON YOUR OPPONENT
The complaint is filed with the court and then served with a summons on the defendant. The filing fee in California Superior Court is $185; in federal court it is $120. The summons and complaint generally must be served by personal delivery to the defendant. Simple local service of process costs from $25 to $50. A summons is a one page form which is completed and signed by the attorney, and filed with the court. When properly served, it requires the defendant to file a written response within a given number of days. In California a defendant has 30 days to file a written response. Failure to file a response results in a default judgment against the defendant. If unchallenged, this default judgment is as valid as a jury verdict. Thus, the penalty for failing to respond to a lawsuit can be severe, and it is the rare solvent defendant who ignores a properly served complaint.
THE RESPONSE AND CROSS-COMPLAINT
Generally, a defendant responds to a complaint with a pleading called an answer. This document, which must be filed with the court, can often be very simple. While not available in all cases, a general denial of all allegations will often suffice. Each defendant must pay a filing fee in the same amount as the plaintiff's fee. The defendant is not limited to filing an answer. Instead, or in addition, he may file a motion to dismiss/demurrer, or a cross complaint/counterclaim. Different terms are used in state and federal court, but the essence of the pleading is the same.
Generally, there are two situations in which a dismissal would be granted at such an early stage. First, if the complaint fails to allege an injury for which there is legal redress, it will be dismissed. An allegation that your best friend ran off with your wife might be tragic, but the law can=t solve the problem. Second, the complaint might fail to include a necessary allegation. For example, one cannot plead breach of contract without specifying when the contract was entered into, the names of the parties, and its essential terms. While the court will give the plaintiff a chance to fix any defects in the complaint, when such defects are incurable the action will be dismissed.
A cross complaint is simply a complaint against the plaintiff or others filed by the defendant. It must arise out of the same transaction or occurrence as the complaint. Our hypo of the month serves as a good example. Let's assume that Prudence Producer hires Calvin Cameraman to shoot her commercial for the California Catfish Advisory Board. Assume further that Calvin shows up for work on the appointed day, but forgets to bring his camera. The Catfish Board fires Prudence, she doesn't pay Calvin and instead sues him for breach of contract. Calvin might cross complain for lost wages. The issue in court might be whether or not it was clear that Calvin was required to bring his camera to the shoot. Since Prudence filed first, she is the plaintiff, but when served with a cross complaint she also became a cross defendant with an obligation to respond in 30 days. Thus, while the plaintiff is usually the aggrieved party, in some instances she is simply the first one to the courthouse.
DISCOVERY
Once the complaint and answer are on file, the case is at issue and discovery begins. Discovery is the procedure by which information is obtained from opposing parties and witnesses prior to trial. The primary method of discovery is by deposition. This is the procedure by which attorneys for each side question witnesses under oath before a court reporter. Any party to a lawsuit must appear at a deposition, but third party witnesses must be subpoenaed in order to compel attendance. Generally, a party or witness may only be deposed once, although the deposition may last for as many days as it takes to unearth relevant information. Because court reporters have a strong lobbying arm, the cost of a deposition is high. Reporters charge by the page, and a simple four hour deposition with a few exhibits will cost about $500 just for the original transcript. Copies for the deponent are not quite as expensive, but still run about $1.50 per page. Video tape depositions are acceptable in California. With the approval of all counsel the deposition need not have a court reporter, but the camera operator must be a licensed notary.
Other forms of discovery are interrogatories, production of documents, requests for admission, physical examinations and inspections. In spite of what you see on Perry Mason, there are very few major surprises at trial. Smoking gun documents are produced during discovery, not delivered to the counsel table by a comely assistant during closing argument. The purpose of discovery is to get all the relevant evidence out on the table where both parties can evaluate it before going to trial. While some parties and some lawyers try to play hide the ball, the penalties for doing so can be severe. In extraordinary cases, a party's willful failure to produce requested evidence can result in a court ordered judgment in favor of the other party. Discovery may last for several months, and in some cases, several years.
In California, all discovery typically must be completed 30 days before trial. The final phase of discovery usually involves expert witnesses. Experts are used to inform the judge and jury about matters which are not commonly known to a lay person. In short, an expert must be helpful to the court. In our hypothetical, Prudence Producer might hire an expert to render an opinion as to whether it is standard industry practice for a cameraman to bring his own camera to a shoot. The expert might be a highly regarded producer, or an experienced cameraman, or the author of a book on film production. Calvin Cameraman would likely hire his own expert to testify on the same subject. The strong likelihood is that the experts will disagree, and will charge an arm and a leg for their testimony. Experts typically charge in the range of $200 to $600 per hour for their work. Often this involves considerable research and writing, and the costs can run into the thousands or hundreds of thousands. In our hypothetical, the amount of research would be minimal, and one might expect to pay for only a few hours at $200 per hour. If, as is usual, you depose the other party=s expert, you must pay the expert=s fee for the time it takes to depose him.
POTENTIALLY TERMINAL PRE-TRIAL MOTIONS
Once significant discovery has occurred, one party or the other may wish to bring a motion for summary judgment. This is possible when there are no material facts in dispute and the law requires a finding in favor of one party. In our hypothetical, assume that there was a written contract between Prudence and Calvin which specifically required Calvin to bring his camera to the shoot. If, after full discovery, it is undisputed that the contract was valid and that Calvin did not bring his camera to the shoot, then Prudence should prevail on summary judgment. No trial would be necessary on liability issues, although the amount of damages might still be in dispute. Summary judgment motions are usually somewhat complicated and work intensive for the attorneys. Despite this they are often used to smoke out the opponents legal and factual contentions.
MANDATORY SETTLEMENT CONFERENCES & ADR OPTIONS
Mandatory settlement conferences or some other form of alternative dispute resolution will occur sometime before trial. These are ordered by the court and may take several forms, but virtually all courts require a settlement session with all parties in attendance. These are conducted by a judge (not the trial judge), a magistrate, or a lawyer, and may last from 15 minutes to 15 hours or more.
I am not sure of the precise statistics, but more than 90 percent of all civil cases are disposed of or settle before trial. Settlement need not come at a settlement conference: it can happen at any time for any reason. It is said, with some truth, that all cases with good attorneys on both sides should settle. The reason is that with extensive discovery and a thorough analysis of the relevant law, smart lawyers should be able to predict how most cases will come out. Of course, there are always situations in which the facts are reasonably disputed or the law is unclear or in conflict, but this is somewhat rare. More often, there will be a reasonable dispute as to the monetary value of a case. The parties, themselves, are most likely to have unreasonable expectations about damages. I blame the media.
DAMAGES
Damages must be provable and reasonably certain. The public reads about multimillion dollar jury verdicts for spilled coffee or sexual harassment and thinks this is typical. In fact, these verdicts rarely stand up on appeal or are settled after trial for much less than the figures given in the headlines. The plain truth is that punitive damages are extremely rare. That means that damages are limited in most cases to making the plaintiff whole. No more and no less. Thus, in our hypothetical, Prudence might win the suit, but the amount of money that would compensate her for her losses would probably be equal to the amount of the production fee that she would have actually earned from the Catfish Advisory Board.
She might try to claim that her fee was $25,000 per day or that, but for Calvin's screw up, the Catfish Board would have hired her to produce a weekly TV series, or that her career would have been jump started by her Catfish commercial and that the next logical step would have been production of an Oscar winning mega budget featureC all of which mandates five million dollars in lost future profits damages. Unfortunately for Prudence both sides get to speak at trial. While provable lost profits are recoverable, Calvin and his experts might be able to show that most Oscar winning producers don't get there directly from Catfish commercials. Or, more to the point, commercial producers don't make $25,000 per day. The finder of fact (either judge or jury) would likely award Prudence her actual day rate, and not much else.
One exception to this limitation on damages is the money awarded for pain and suffering in a personal injury case. Because this amount can never be proved exactly, the jury is free to value this intangible as it sees fit. A very general rule of thumb used by many insurance companies is that pain and suffering should equal three times the medical bills. Thus, if a plaintiff has incurred $5,000 in medical bills, the pain and suffering is worth an additional $15,000. There is no such thing as pain and suffering in a contract case, although emotional distress damages may sometimes be awarded. Like anything else, these must be proved--usually with evidence of bills for psychological counseling and medication.
COST OF TRIAL
If a case goes to trial, there are additional costs. The court reporter's fees are split between the parties, and additional fees are charged by the reporter to any party that wants an actual trial transcript. Jury fees, although nominal, must be paid by the party who requested the jury--usually the plaintiff.
The American rule is that each party bears its own attorneys fees. There are exceptions. Some contracts specifically recite that if litigation to enforce the contract ensues, the prevailing party will be awarded attorneys fees. There are also statutory attorneys fees. In discrimination cases, a prevailing plaintiff is almost always awarded fees. And in copyright cases, a prevailing party (plaintiff or defendant) may be awarded fees if the case has furthered the purposes of the Copyright Act. There are other instances of fee awards, but if in doubt, assume that you will have to pay your own fees and costs.
Litigation is tough--it is time consuming, emotionally draining, and expensive. However if the cause is just and the damages are real, it is a valuable method for asserting your rights. It's better than pistols at 20 paces, and better than what passes for justice in many parts of the planet.
Thanks, Tom, for summing it up for us so neatly!
Have a GREAT BUSINESS DAY!!
Victoria Pynchon, Settle It Now Dispute Resolution Services, 499 North Canon Drive, Suite 400, Beverly Hills, California 90210 T.323.217.5162 F.323.852.1535 vpynchon@settlenow.com www.settlenow.com
Tuesday
Durable Settlements
and the Mediation Confidentiality Protection in California
As entertainment attorney and complex commercial mediator Lou Meisinger says, you can't make a deal that is "too rich" for you and too hard on your bargaining partner. If you do, there are innumerable ways your aggressively negotiated agreement can fail -- bankruptcy, creative lawyering (i.e., non-performance), and retaliation from your business community.
Simple non-performance is, of course, enough, because it will require litigation -- the triple by-pass surgery of the law. Better to visit your general practitioners (read: transactional attorney) on a regular basis than face the legal practitioner bearing a scalpel.
(no, that's not Lou; that's the infamous Ari Gold from HBO's hit-series Entourage)
The first item your litigator will excise is your peace of mind, followed by your productivity and profitability. I know these things. Before I became a mediator, a conflict resolution coach and a quasi-academic, I was one of the toughest scalpel-wielders in the west.
Not that you shouldn't have the telephone number of an aggressive litigator and masterful trial attorney ready at hand when you need one -- someone really terrifyingly good like the fictional Alan Shore or all too real John Quinn. Still, it's best to have your commercial affairs, including your all-important business relationships, in good order. That way, you'll never need to see the inside of a courtroom or spend seven hours (or more!) being questioned in a deposition proceeding that feels more like watching paint dry than enjoying Boston Legal. (Denny Crane!)
With that said, I am linking you to a recent article in the Los Angeles Daily Journal -- written by yours truly and master-arbitrator and mediator, Deborah Rothman, who has those Ivy League credentials (and writing ability) I've never stopped envying. (not that the California state school system wasn't cheap AND stellar when I was growing up, what with all those mid-century American under-employed women available to teach us kids grammar and syntax).
But I digress. Here's the article -- on enforcing settlement agreements reached during mediation without transgressing California's mediation confidentiality protections (more on Simmons v. Ghaderi) -- Take Steps to Insure Mediated Settlements Can Be Enforced.
Have a GREAT BUSINESS DAY!
Victoria Pynchon, Settle It Now Dispute Resolution Services, 499 North Canon Drive, Suite 400, Beverly Hills, California 90210 T.323.217.5162 F.323.852.1535 vpynchon@settlenow.com www.settlenow.com
Monday
Follow the Money
Insurance Coverage Disputes
by John H. Mathias, Jr.
John D. Shugrue
and Thomas A. Marrinson
$219.00
I'm passing this along because knowledge of insurance coverage is critical in all areas of business negotiation today. I haven't read this volume and I don't know the authors. I am not recommending it particularly. I am, however, certainly recommending that you have a comprehensive guide to insurance coverage at hand if you are in business or in the business of giving advice to business people.
But remember -- no matter what the law says, it is critical that you read the actual policy language. This may seem an obvious point but you'd be surprised how many lawyers say, "I know there's a policy. I haven't read it. But I don't think x is covered." In response to which I say, read Jordache v. Brobeck and consider notifying your malpractice carrier.
Finally, if you are uncertain about coverage issues in any of your client's affairs, consider hiring mediators with coverage experience, a few of whom recently opened their own mediation panel, IDR Mediation Services.
I was consulting with Lance LaBelle of IDR just this afternoon on a complicated insurance question that I couldn't answer after ten years coverage litigation experience of my own. I met Lance while co-mediating a settlement conference with Judge Chaney in the Complex Court here in Los Angeles. He's one of those guys whose mind works so quickly and so well that you think you can see the wheels turning as you watch him. A great mediator and a truly nice guy. You can reach him here or hear him talk here about how a savvy coverage mediator can settle those cases you think can't possibly be resolved short of trial.
The rest of the post is a verbatim sales pitch for the Coverage book above from a recent VerdictSearch newsletter:
Insurance Coverage Disputes is a comprehensive, chronologically organized and clearly written guide to the issues that can arise at every stage of a coverage dispute, from the initial inquiry into whether a policy exists to complex questions of law, evidentiary matters, procedure and strategy.
The authors explain in detail all aspects of litigating insurance coverage disputes, including: the varieties of policies and coverage; obligations of policyholders and insurers; and the nuts and bolts of proving or disproving coverage, from pretrial motions through settlement. Topics include: case management; venue; parties; justiciability; discovery disputes and privileged documents; insurance policy interpretation and construction; bad faith and extra-contractual claims; and trial of an insurance coverage dispute.
You'll find out about environmental claims and employment practices liability under a variety of policies, coverage for sexual molestation claims, and many other timely topics. There is also a series of ready reference charts summarizing the controlling law of each of the fifty states and the District of Columbia on a number of key liability insurance issues.
#00638; looseleaf, one volume, approximately 600 pages; published in 1996, updated as needed. ISBN: 1-58852-075-7
Your purchase price includes the cost of all previous updates and any updates that may be issued within three months of your order.
You can buy it by clicking here.
HAVE A GREAT BUSINESS DAY!!
Victoria Pynchon, Settle It Now Dispute Resolution Services, 499 North Canon Drive, Suite 400, Beverly Hills, California 90210 T.323.217.5162 F.323.852.1535 vpynchon@settlenow.com www.settlenow.com
