THIS SHOULD BE EVERY TRIAL LAWYERS MANTRA

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MEDIATION AND MEDIATORS

I’ve written about settlement mediation before on this blog: http://plaintifftriallawyertips.com/wp-admin/post.php?post=157&action=edit

The entire subject of modern settlement negotiations has been much more complex then when I started the practice. The insurance adjustor would come to the office and negotiate with you. In other cases, you would get a phone call from the defense lawyer who would want to talk settlement. In all but rare situations you negotiated your own cases directly, either with an insurance representative or the defense lawyer.

Now, even the smaller cases are settled through mediation. We have created an entire new field of mediators and mediation companies. The most common issue seems to be finding a “good” mediator. Experience has shown that one lawyer’s idea of a great mediator is not that of some other lawyer. I think there is an inherent problem in our trying to objectively evaluate mediators. That’s not just due to the mediator, but as much the approach and expectations of the lawyer towards mediation.

How, we regard the mediator depends to a large extent upon how we approach mediation and our attitude about the role of the mediator. Therefore, we are not going to be able to objectively evaluate a mediator until we agree on what we are looking for in mediation and in the mediator.

Some lawyers approach a mediation with a willingness to remain until it gets done, who are willing to cooperate with the mediator by giving them a large measure of control and who are chiefly relying upon the mediator to get the job done. These lawyers are looking for a mediator to fulfill that role and if the mediator doesn’t fit that idea the lawyer is likely to be unhappy.

On the other hand, lawyers who see the mediator as essentially having a limited role as a communicator between sides and who retain control of everything from how long they will allow the process to last, to not allowing the mediator to have exchanges with their client to argue the mediator’s view and who are have strong ideas about the process are not going to be happy with a mediator who doesn’t fit that role.

Conceding that we all have, from time to time, cases where we are desperate to settle a case we wish we didn’t have in the office, nevertheless my personal strong belief was the latter approach fit me best. Everyone has their own idea, but for what it’s worth here is mine.

I have long believed that 80% of the progress in a mediation happens in the last 20% of available time. When we do not set firm time limits there is a great likelihood that the mediator will waste time and things will drag out unnecessarily. My position was that mediations should never be scheduled for more than ½ a day. If for some reason there was a genuine reason for a longer session I always wanted it re-scheduled and not extended past the firm deadline.

I also believe the mediator will never have the same skill I have to evaluate my case and am not concerned about his or her idea of the settlement value. What other verdicts have been are also irrelevant to me because I didn’t try those cases and the defense lawyer in those cases wasn’t the same as in my case so there is no way to draw logical conclusions from verdicts in other cases. 

I will never allow the mediator to make an argument to my client about the settlement and strictly control those communications.

I am interested in what the mediator can tell me about the defense position. I am interested in a qualified mediator telling me what they see as the issues in the case but not a jury argument about it. I either agree or don’t agree, but I want to know about any issue I may have overlooked.

I see the chief role of the mediator to communicate between the two sides and I expect the mediator to be able to tell me in a very short time whether there is any reasonable chance of settling the case. If not, I do not stay and waste my time dickering. I will discontinue the processs if there is no likelhood of reaching a settlement in my range.

Clearly some mediators are not qualified for any of our cases and some are qualified for the great majority of our mediations. But. Finding the right mediator for each of us depends a lot upon what we are looking for in the mediator and mediation.

Not to be overlooked are those plaintiff attorneys who avoid mediation except where required by courts or law. They have their own approach. One great plaintiff’s lawyer I know, would make a demand and warn that the amount would go up by a specified sum every week from that point and if not accepted within a minimum specified period before trial would be automatically withdrawn. Defense lawyers who did not believe him soon learned to regret it and his verdict success was outstanding. Yes, there are ethical considerations involved, but the approach is still an alternative for the qualified lawyer.

TRIAL ASSISTANT INSTRUCTIONS

When I was a young lawyer in the small town of Mount Vernon, Washington I would sometimes fly to places for legal work as the quickest way to get there. Just outside town there was a narrow dirt air strip right along a standing field of corn on one side and a drainage canal on the other. The local pilot who flew the farms for spraying the fields had his planes there and one was a small two seater he would fly me in. He had been flying for over 30 years and had flown hundreds of hours. Never the less, every time I flew with him, he would get out a clipboard with a checklist and walk around the plane with it. He would methodically go through it out loud even though I was the only one with him. He would even open the window on his side before we started out and shout out “Prop On!” before firing up the engine.  The only thing close to us would be cows crazing a long ways away. I was struck how much importance he put on a checklist for some thing he had done hundreds of times. I decided that in my law practice I would create a checklist for every thing we did. Every time we did something new I made a checklist. I modified them as we used them, but they were given to all the paralegals and we followed them together. Here is an example of an early checklist I created when I was really trying simple cases alone but always with a paralegal with me. It will give you an idea of the concept. Of course, this is really simplistic but it gives the general idea. TRIAL PARALEGAL CHECKLIST  Arrangements need to be made to transfer the client files and exhibits needed for trial to the courtroom. The computer, projector and electronics are also to be set up for trial. The general outline for  responsibilities during trial follow: MORNING 

  1. ARRIVE AT COURT AT SAME TIME LAWYERS ARRIVE
  2. ASK ATTORNEY FOR INSTRUCTIONS WHEN YOU ARRIVE
  3. REVIEW WITNESS LIST FOR WITNESSES TO BE CALLED
  4. MAKE SURE WITNESSES ARE THERE & READY TO TESTIFY

WITNESS MATERIALS

  1. HAVE ALL OF THE WITNESS MATERIAL READY FOR THE ATTORNEY. THIS INCLUDES DEPOSITIONS, EXHIBITS AND MATERIALS.
  2. BE PREPARED TO GIVE THE LAWYER THE MATERIALS DURING THE EXAMINATION
  3. HAVE BOXES & TRIAL MATERIALS ORGANIZED FOR EASY LOCATION  AS NEEDED.

DURING TRIAL

  1. BE OBSERVANT FOR ANYTHING NEEDED BY LAWYERS
  2. BE RESPONSIBLE FOR WITNESSES WAITING TO TESTIFY
  3. NOTE OBSERVATIONS REGARDING JUDGE, JURY, WITNESSES & COURT IN GENERAL. DON’T PASS NOTES TO ATTORNEY

MORNING RECESS

  1. CHECK WITH LAWYER FOR PROJECTS
  2. SHARE ANY OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS

NOON RECESS

  1. BE PREPARED TO GET FOOD FOR LAWYERS OR WITNESSES IF ASKED.
  2. REVIEW OBSERVATIONS WITH LAWYER & SHADOW JUROR COMMENTS.
  3. ADVISE REGARDING STATUS OF NEXT WITNESS
  4. REVIEW ANY MESSAGES FROM OFFICE OR OTHER NOTES
  5. ASK LAWYER IF ANYTHING IS NEEDED
  6. CHECK ON WITNESSES FOR AFTERNOON

AFTERNOON RECESS

  1. ASK IF LAWYERS NEED ANYTHING
  2. SHARE OBSERVATIONS OR MESSAGES
  3. REPORT ON WITNESS STATUS – ENSURE WITNESSES READY
  4. ADVISE SCHEDULING PARALEGAL OF TRIAL STATUS

END OF DAY

  1.  REVIEW WITNESS STATUS AND SCHEDULE FOR NEXT DAY
  2. FIND OUT WHAT PROJECTS LAWYER HAS FOR YOU
  3. ADVISE WITNESS PARALEGAL OF STATUS.
  4. HAVE WITNESS MATERIAL AVAILABLE FOR LAWER
  5. GIVE REPORT FROM SHADOW JURORS AND OBSERVATIONS
  6. GET INSTRUCTIONS FOR FOLLOWING DAY.