AdvocateSept14issuebksv3_Advocatetemplate2007.qxd8/18/20142:52PMPageA1
Journal of Consumer Attorneys Associations for Southern California
The other road to justice Resolving the emotions-driven employment case Mediating the first-party insurance case Mediation impasse: Reality or fallacy?
Pre-litigation mediation — a signal of weakness or a sign of strength? Effective arbitration advocacy
Finding a mediator goes digital
Getting the most out of your “at BATTs”
Breaking the psychological barriers to settlement Interview: Mediation methodology
Hollywood Confidential: High profile mediations Private enforcement of nursing home staffing mandates
Authenticating Google Street View photos for use at trial PAGA: A decade of victories
Litigation financing for small law firms
September 2014
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Contents Volume 41, Number 9, SEPTEMBER 2014
Editor-in-Chief Jeffrey Ehrlich Associate Editors Martin Aarons, Joan Kessler, James Kristy, Spencer Lucas, Beverly Pine, Norman Pine, Rahul Ravipudi, Ibiere Seck, Geraldine Weiss, Ronnivashti Whitehead Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman
Managing Editor Cindy Cantu cindy@caala.org Copy Editor Eileen Goss
Publisher Richard Neubauer rn@theadvocatemagazine.com Art Director David Knopf
Consumer Attorneys Association of Los Angeles President Treasurer Geoffrey Wells Mike Arias President-Elect Secretary Joseph Barrett Shawn McCann First Vice President Immediate Past President David Ring Lisa Maki Second Vice President Executive Director Ricardo Echeverria Stuart Zanville
Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, David deRubertis, Danica Dougherty, Jeffrey Ehrlich, Tobin Ellis, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Jeff Greenman, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Tobin Lanzetta, Tim Loranger, Anthony Luti, Minh Nguyen, Christa Ramey, Rahul Ravipudi, Taylor Rayfield, David Rosen, Jeffrey Rudman, Ibiere Seck, Doug Silverstein, Kathryn Trepinski, Geraldine Weiss, Ronnivashti Whitehead, Andrew Wright
Orange County Trial Lawyers Association Secretary President Casey Johnson
President-Elect Ted Wacker
First Vice President Vincent Howard Second Vice President H. Shaina Colover
Third Vice President Geraldine Ly
Features:
12
Mediating the first-party insurance case
20
Effective arbitration advocacy
26
Mediation methodology – Interview with Mariam Zadeh
34
Getting the most out of your “at BATTs”
46
Hollywood Confidential
60
Resolving the emotions-driven employment case
72
Mediation impasse: Reality or fallacy?
B. James Pantone
Treasurer Jonathan Dwork Parliamentarian Jerry Gans Immediate Past President
88
Board of Directors Melinda S. Bell, Anthony W. Burton, Brent W. Caldwell, Darren J. Campbell, Cynthia A. Craig, Robert B. Gibson, T. Gabe Houston, Paul E. Lee, Kevin G. Liebeck, H. Gavin Long, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman
Periodicals postage paid at Los Angeles, California. Copyright © 2014 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited.
ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224 www.caala.org
POSTMASTER:
Send address changes to ADVOCATE c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine
SEPTEMBER 2014
Counsel can control the arbitration process at the front end, the mid-point, and even the conclusion. Alexander Polsky In this interview, attorney Howard Shernoff ruminates on the mediation process, while mediator Mariam Zadeh provides perspective. Interview by Howard S. Shernoff
Mediation is the “Best Alternative to Trial” whether the need is for confidentiality, a quick resolution or meeting a client’s desire to be heard. Jan Schau A discussion of confidentiality concerns in high-profile celebrity mediations. “Non-disclosure” agreements can affect everyone, so get them right! Robyn Weinstein Identifying the disruptive emotions that frequently sabotage the mediation process. Three simple, yet powerful tools to manage those emotions. Therese White You and your client spent 10 hours in mediation. Your client went through the entire range of emotions, and gave in beyond the “bottom line” you’d set together, and still it didn’t settle. Lee Jay Berman
Pre-litigation mediation – a signal of weakness or a sign of strength?
The advantages to pre-litigation mediation and how to use it as a creative litigation strategy. Joan B. Kessler
Scott Cooper
Executive Director Janet Thornton
Motivations for mediating a first-party case, even if there is an arbitration requirement. Also, a look at bad-faith cases and why both sides should study the mediation alternative. Robert M. Bennett
92
Finding a mediator goes digital
Find a mediator using Web search tools. A look at the specialized mediator-search tools provided by professional associations, mediation services providers, and online mediation brokers. Deborah Crandall Saxe
102
Private enforcement of nursing home staffing mandates
112
Authenticating Google Street View photos for use at trial
A review of the tools available to the plaintiff. Steve Garcia
Especially valuable in premises liability to prove notice, Street View can be admitted into evidence if you follow these tips. Steven C. Glickman
Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: advertising@theadvocatemagazine.com Rate card available online at www.theadvocatemagazine.com
Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: editor@theadvocatemagazine.com. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: cindy@caala.org
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118
Litigation financing for small law firms
120
PAGA: A decade of victories
126
Breaking the psychological barriers to settlement
The first step to establishing a line of credit is to have a business plan for the firm. Hon. Joseph S. Mattina The Private Attorneys General Act empowers plaintiff attorneys in employment law. Bryan Schwartz and Cecilia Guevara Zamora People cannot divorce themselves from their emotions and perceptions when they decide to mediate. Hon. Patricia Schnegg
Departments:
8
132
A BOUT THIS I SSUE Alternative Dispute Resolution
98
B OOK R EVIEW Law and Motion Deskbook Trilogy
128
A PPELLATE R EPORTS & C ASES
IN
B RIEF
Gregory v. Cott applies the doctrine of primary assumption of risk to an occupational hazard, not a recreational activity; extends the “firefighter’s rule” to in-home health-care workers
Jeffrey Ehrlich
130
G OVERNMENT R ELATIONS B ULLETIN Updates from Sacramento and Proposition 46
E XECUTIVE D IRECTOR
Get ready for some name-calling
Stuart Zanville
134
F ROM
THE
P RESIDENT
Orange County Trial Lawyers Association
Heating up
O t l s b b
A chance to be part of the solution
Quick to read and easy to use. No history or long discussion, but lots of practical forms
Authors: David N. Finley & Douglas R. Parker Reviewed by Donna Bader
THE
Consumer Attorneys Association of Los Angeles
The campaign to pass Prop 46
“Alternative” is not really “alternative” but may be a necessity to resolve legal disputes given the courts’ cutbacks
Joan B. Kessler
F ROM
Casey Johnson
136
CAALA C ONNECTION C ENTER
137
CAALA R ESOURCE C ENTER
138 140
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS
Welcome and connect with the newest members of CAALA
New affiliate vendors are an excellent resource to help improve your practice
F ROM
THE
O r t i r
P RESIDENT
Consumer Attorneys Association of Los Angeles
Never give up! Don’t let fear paralyze you. Move on and fight
Geoffrey Wells
T c I a
On the cover: Main Image: Inyo County Courthouse in Afternoon Light | trekandshoot | www.thinkstockphotos.com
SEPTEMBER 2014
The Advocate Magazine — 7
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About this Issue Joan B. Kessler Associate Editor
Alternative Dispute Resolution “Alternative” is not really “alternative” but may be a necessity to resolve legal disputes given the courts’ cutbacks My interest in conflict resolution began over 40 years ago, when I trained as a Communication professor and jury consultant after receiving my Ph.D. from the University of Michigan. I taught conflict resolution, interpersonal communication, intercultural communication courses, and I even taught communication issues to law students, lawyers and law enforcement officers. That led to law school and over 25 years of being a litigator. I work full time as a mediator and arbitrator and have been working in that field for eight years. Over the past eight years as associate editor for the annual ADR issue of Advocate, I have enjoyed collecting and editing some very interesting articles. I think you will find this year’s ADR issue to be an innovative and informative collection of useful ideas. This is especially true given the many court closures, elimination of the State Court ADR program, and staff cutbacks in the court system this year. What was “alternative” may now be a necessity in resolving legal disputes. My own article is entitled “Prelitigation mediation: a creative strategy” and discusses the advantages to all of pre-litigation and early mediation and how it may be a creative strategy. Jan Frankel Schau of ADR Services Inc. has been an outstanding dedicated neutral since 2003. In her article “Getting the most out of your at BATTs (Best Alternative to Trial): Key Techniques for maximizing your ADR experience,” she describes several key techniques for maximizing your experience in mediation, through real examples of exceptionally “smart plays.” Therese White has been a highlyregarded non-attorney mediator and organizational conflict consultant since 1992. In her article “Resolving the emotions-driven employment case: three 8 — The Advocate Magazine
SEPTEMBER 2014
simple tools for managing runaway emotions,” she identifies disruptive emotions that frequently sabotage the mediation process and provides simple tools to help manage those emotions. In a most unusual and insightful article, Mariam Zadeh, a distinguished mediator, is interviewed by Howard Shernoff, a prominent plaintiff ’s attorney, about “mediation methodology.” Attorney Shernoff ruminates about the process, and Mediator Zadeh provides prospective. Alex Polsky is a well-known JAMS mediator, arbitrator, and special master as well as trainer. In his article “Effective arbitration advocacy,” he discusses how attorneys can best impact the outcome of arbitration. Deborah Saxe is a well-respected, full-time neutral at AAA and ARC. In her article “Finding a mediator goes digital,” she discusses some of the neutral organizations and explains how they assist counsel in finding neutrals. Rob Bennett is a very popular neutral at Judicate West. In his article “Mediating the first party insurance case: Benefits and Black Holes,” he explains problems mediation can solve as well as create. Carrier mistakes are explored along with strategies for maximizing results. Robyn Weinstein is a well-regarded mediator, incoming President of the Southern California Mediation Association and Program Director for the Los Angeles Office of Arts Arbitration, and Mediation Services at California Lawyers for the Arts. In her article “Hollywood Confidential: A discussion of confidentiality concerns in high profile mediations,” she addresses confidentiality concerns relating to high-profile parties in mediation and the use of nondisclosure or confidentiality agreements.
The Honorable Patricia Schnegg, longtime and highly regarded Los Angeles Superior Court sitting judge, is a highly respected Settlement Judge. In her article “The psychology of the settlement process,” she explores the ways human motivation, perception, personality, interpersonal relationships as well as emotions are all part of the mediation process. Lee Jay Berman is a nationally known trainer and a leader in the neutral world. He is a Distinguished Fellow with the International Academy of Mediators, a Diplomat and board member with the National Academy of Distinguished Neutrals. In his article, “Mediation impasse is a fallacy: a call to make mediation more effective” he focuses on how to deal to improve results in the mediation process. −JBK In addition to the fine ADR articles put together by Joan Kessler, we have some bonus articles this month. One in particular makes a statement about why Advocate is the premier plaintiff magazine in the country. Steven Glickman, a former CAALA president who I daresay is a busy guy, had a premises-liability case and figured out how to use Google Street View to prove notice. More to the point, he figured out how to get it admitted into evidence. And then he took the time to produce this unsolicited article for our readers. Why? Because he thought our readers could benefit from it – nothing to promote his practice, just an article that will save other lawyers hours of trial and error. And may in fact keep their premises case alive. That’s what makes us special, people who give unselfishly of themselves to help fellow trial lawyers and ask nothing in return. − JIE, editor-in-chief
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10 — The Advocate Magazine
SEPTEMBER 2014
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SEPTEMBER 2014
The Advocate Magazine — 11
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From the Executive Director Robert M. Bennett
Consumer Attorneys Association of Los Angeles
Mediating the first-party insurance case to avoid a bad-faith action In mediation a claimant can assert elements of bad faith – perhaps receiving consideration for them – without explaining it all to a jury The first question often asked when a discussion about mediation and firstparty claims comes up is: “Why would I mediate when the contract calls for binding arbitration?” The answer, of course, involves either the dramatic benefits or the “black holes” connected with firstparty insurance practice. The issues in play are ones often asserted by claimants and routinely denied by insurance carriers that can be the issues of bad faith. An insurance carrier can often make it so easy for a bad-faith claim to arise, in even the simplest first-party claims, by failing to meet the standard of care that its insured has not only paid for, but deserves. This goes all the way back to when Percy Sloan hit Anthony Comunale 12 — The Advocate Magazine
SEPTEMBER 2014
in a crosswalk (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654). There is likely some element of identifiable bad faith in almost any claimshandling scenario; the problem is whether or not the claims handling, or mishandling, rises to the level of actionable bad faith causing separate damages for which the carrier must compensate the claimant. It has long been held that sloppy or careless claims handling is not in itself an act of bad faith, but what actually is bad faith conduct may not always be so simple to identify. This is why mediation can become the solution for both claimants and carriers. Claimants (and their counsel) need someone not only sophisticated in the
subtleties of identifying bad faith but also adept at putting an appropriate value on the damages arising from that bad faith. Carriers need to resolve a bad-faith exposure at the same time that they resolve an underlying claim. They also want confidentiality and will sometimes even pay a premium for it. Another argument for mediating the first-party claim that works for both sides is the fact that, if the underlying claim is resolved, no second effort is required by way of a postarbitration trial of the bad-faith issue(s). The “black hole” that the claimant may fall into if they are overly aggressive in asserting bad faith, is that the carrier won’t buy into those assertions at all,
Black Holes continues
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Black Holes — continued
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continues to deny that it did anything wrong, and then forces the claim into the contractually mandated arbitration. If the arbitration result is then reasonably within the carrier’s value range, or even just within policy limits, the carrier pays up and the claimant has to overcome the carrier asserting the genuine-dispute doctrine and press on for whatever is left of their bad-faith allegations. Remember that carriers have the right to argue on behalf of the uninsured or underinsured motorist and that is not yet deemed to be bad faith if that is done with reasonableness. Cases where there is a potential for bad faith can benefit from mediation in many ways, but the potential in those cases tends to disappear only when a carrier begins to put realistic values on a claim which values would hold up if attacked in a second lawsuit. Mediation is also a venue wherein the claimant can assert elements of bad faith, and receive some premium for it, without actually having to explain it to a jury – a jury who has no idea what the concept is. Just as a jury may have difficulty placing value on subjective injuries when it can clearly be guided on a broken leg, a jury can struggle with badfaith damages, especially when they have the insurance contract and its available coverages right in front of them. Juries just may not always understand why an insurance company should pay more, absent any extremely egregious behavior. So, mediating clearly has benefits for the claimant, but what about the carrier? Insurance companies are like any other business, whether or not they are for-profit, reciprocal, member owned, or publicly held. They take in a lot of money, and they also have very large departments that do nothing but pay out money in the form of claims. The big black hole for the carrier is that they hold themselves out as the experts on value of a claim. They see thousands of cases a year. They are often correct on those values but, when they are wrong, they are very wrong! Those errors often come from the garden-variety disbelief in the reasonableness or necessity of medical treatments, the severity of injuries,
or the length and scope of recovery time leading to disability and lost earnings. Whatever it may be, it creates the opportunity for an incorrect valuation which, if asserted improperly in a first-party case, may be perceived as bad faith. Just as all plaintiff ’s attorneys are not in business to instruct their clients how to build up damages, and not all chiropractors and doctors are overtreating accident victims to beef up their cases, not all insurance companies and their lawyers are motivated to cheat a claimant out of a recovery on the claimant’s own policy. But, in fact, the carrier does have a duty to its shareholders and/or policy holders to identify and challenge issues of excessive treatment, incorrect coding by the providers, and overbilled or repetitious diagnostics. As good as the available panels of arbitrators might be for these types of cases, Arbitrators are not likely to put full value on a case with an obvious buildup. They have seen it all. If a carrier simply challenging the special damages in a firstparty case is deemed bad faith, then every insurance company in the country commits bad faith on a daily basis. As a plaintiff ’s attorney it can be particularly challenging when a claimant has treated conservatively, returned to work, and not incurred a huge amount of special damages – even where they may have been warranted. However these cases may still find the carrier being overly aggressive or in disbelief of damages that have been presented to them. The black hole for the claimant’s attorney is to be reaching for policy limits in every case, and the corresponding black hole for the defense is to try to save money off of every policy even when a policy limits case is clearly presented.
“Winning” a first-party case at mediation
The beauty of mediating these cases is that all the protections of mediation hold true and yet, if the mediation is not successful, both parties still have the opportunity to prevail in the contractual arbitration proceeding. But the claimants
Black Holes continues
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Black Holes — continued
should be prepared for most skilled mediators being intent on actually settling their cases. This may leave a final offer from the carrier which is high enough to rescue them from bad-faith exposure but perhaps not strong enough to meet claimant(s)’ expectations, if they have been set too high. Rule #1 is to come with realistic expectations. Where there is a rule #1 there must be a rule #2; that is that claimants must not sandbag the defense, or hide meaningful evidence with a desire to surprise the carrier at arbitration. Some of these tactics certainly work at trial, and periodically work at arbitration. Mediation, however, requires that the carrier come with authority and a wallet big enough to settle the case. Insurance companies grant that authority based on what they actually know about the claim. Carriers also love a paper trail, so don’t hide evidence, or assert positions you cannot support. Give the defense attorney or the claims staff all the documents you have supporting the value of the claim. This includes medical reports, status, and recommendations for future treatment or surgeries as well as letters from employers documenting time lost from work. The carrier still may act as if they have not come with enough authority, but if all that paperwork has been presented prior to your mediation, there is likely more authority available than they may let on.
16 — The Advocate Magazine
SEPTEMBER 2014
Rule #3 for succeeding at mediation is to demonstrate that you actually came to get the case settled. The first side to genuinely send the message that they want to get the case resolved will often get control of the case which can be difficult to wrestle away from them. There are many different styles of negotiating on display in mediation, for example: • Wild demands: Somewhat unorthodox, but which may still be effective, is the wild demand by the claimant. This approach, sometimes also called “shock and awe” can be effective because the claimant then moves significantly from the wild demand, in the hopes that they will then demonstrate the true desire to settle by moving into the reasonable range of the case value. The black hole in this approach is that the carrier side is so disgusted by the demand that they disengage themselves from the process or respond and lock down at unreasonably low numbers. In this scenario a skilled mediator will keep the parties involved and reset the numbers so meaningful negotiations can commence. • The voice of reason: Some demands are reasonable. So reasonable that the claimant’s case falls into the black hole of possibly being undervalued in the eyes of the carrier. “That opening is pretty realistic…they must not think much of their case” says the carrier. The mediator will coach the claimant not to budge on the demand for a while so he can stress to the carrier that the demand was genuine and not just a starting point for show (see above). • The middle grounders: So many mediations get hung up by the offers being made having some sort of a midpoint in mind. Not only do the parties fall into this black hole, but mediators themselves often do it by attempting to set “brackets” or ranges that the parties might agree to in the hopes of narrowing a wide gap that exists between the parties. In this situation, the winning side, if there is such a thing, will go with a well suggested bracket range, or counter with another one that they like, and will avoid getting scared off by what the midpoint
of those numbers is. When the case gets closer to settlement as the gap becomes narrower, one side or the other will budge off of their midpoint resistance and grab at an opportunity to settle at a number close to their goal. • Chipping away: Similar to the middle grounders, the “chippers” like to start perhaps realistically but at a large distance from where they believe a case will settle. They don’t believe in brackets, and they like lots of small moves to achieve their goal. A good mediator will often break this style open by suggesting that one party make a large move and then stay put. The black hole not to fall into for either side is failing to recognize when the chipper has started to lose interest and isn’t throwing in enough chips anymore. • The final number proponents and variants: Final number people agree to mediation and then virtually refuse to participate by saying that their last offer on a case (or last demand) is the “final number” and the mediator should get the other side to accept it. This approach seldom works unless there is a real problem for one side or the other that makes settlement mandatory and the opposition knows it. The mediator usually can break down the final number practitioner by challenging them to be involved in the process which they chose to be a party to. The troubling variations on final number practitioners is either a carrier who may take money off the table that they have previously offered, or the claimants’ counsel who has negotiated in good faith prior to the mediation and then jacks the demand up at the mediation (see wild demands above). A lot of time is wasted on both of these players to get them back to the range the mediation was originally based on. So many other styles and scenarios play out in front of a neutral mediator that it would take volumes to cover them all but the key theme here is to avoid the black holes of mediation in a first-party case while at the same time maximizing the benefits of mediation. Every insurance carrier has one goal and that is to
Black Holes continues
T
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Black Holes — continued
settle the case and get it off of their desk. The benefits to mediating include the opportunity for early resolution, even pre-litigation, and the savings from avoiding costly discovery and legal expenses. This creates one of the bonuses for the claimant: those savings can be put in the claimant’s pocket and good mediators know that. Good mediators are not fooled by lots of good-faith claims handling that was preceded by some gross act of bad faith, like a breach of a duty to pay medical benefits or property damage, or a serious bad-faith negotiation tactic like lowballing or unsupported creeping offers. The best reason to mediate this type of case is that the mediation process
18 — The Advocate Magazine
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will allow the time line of the case to be presented clearly – and to someone who understands it. With all of the above in mind, practitioners should never fear going forward with a decent bad-faith case. A lot of factors will weigh in on whether an insurance company really wants to risk a trial result, and the negative publicity that can result, as well as the possibility of a jury really, at the end of the case, understanding bad faith and wanting the carrier to have to pay handsomely for committing it. If both sides can look past their own case, and intelligently evaluate the case the opposition has, there could be some eye-opening realizations that the certain-
ty of a mediated result may indeed be the best solution. That kind of unilateral examination of every case will also pay off when a trial is the only alternative. Robert M. Bennett practiced bad faith and personal injury law as the plaintiff, defense, and insurance counsel for over 32 years. He is admitted to practice in New York, California and Vermont. He has been a neutral mediator for the past eight years and is now a full-time mediator and arbitrator for Judicate West, handling cases in California, New York and New England.
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Alexander Polsky
Effective arbitration advocacy – take control! Counsel can control the arbitration process at the front end, the mid-point, and even the conclusion Arbitration is a fact of life. Lawyers must treat the process and evidentiary burden just as they would a trial. Many do not, with serious consequences – for which they often blame the arbitrator. Who really controls the arbitration process? By ceding control to the arbitrator, counsel relinquishes a valuable benefit conferred by the privatearbitration process. The fact is, counsel can control the arbitration process at the front end, the mid-point, and even the conclusion. 20 — The Advocate Magazine
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Front-end control of arbitration processes
Attorneys typically draft arbitration agreements. By carefully spelling out the rules to be applied at arbitration, the parties to a dispute will know, in advance, the process that will be used. Failure to spell out the rules may leave the parties subject to the provisions of the Civil Code and the Codes of Civil Procedure and Evidence, at best, or the whim of an arbitrator at worst.
The growth in arbitration practice has resulted in thousands of solo arbitrators, as well as newly created or well established arbitration tribunals. Arbitration tribunals, often covering multiple states, have developed comprehensive rules which will govern the proceedings if the specific tribunal is written into the contract, or the parties elect to voluntarily adopt the rules. Most state statutes provide that, if no rules are spelled out in the arbitration
Effective continues
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agreement, the portion of the Civil Code relating to arbitration will control. The Civil Code generally provides that the Code of Civil Procedure and Evidence Codes will rule the day. Many arbitrators disregard these provisions and permit all evidence to be admissible, subject to the weight to be accorded it by the arbitrator. This sometimes includes the admission of surprise written testimony or reports, or unanticipated live witnesses. All of this is avoidable either through a carefully drafted arbitration agreement, or by reading further in this article…
The arbitration submission
Even before an arbitrator is selected counsel should meet and confer to create an arbitration submission. This submission could supercede the arbitration agreement by stipulation or, where there is no agreement, is used to avoid surprise and guide the arbitration process. A well-crafted arbitration submission will accomplish the following: (1) Identify the process that will be used to select the arbitrator. (2) Set forth the rules that will govern the hearing. These could be the JAMS, AAA or other arbitration services rules; or the parties could rely on applicable state or federal arbitration acts; or agree that the parties will proceed pursuant to the rules given to them by the arbitrator. (3) Determine the manner by which documents will be exchanged. (4) Reach an agreement pertaining to the exchange of briefs. (5) If possible, provide an estimate of the length of the arbitration hearing. Many of the items listed above are generally not addressed until the actual commencement of the hearing. This leaves tremendous control in the hands of the arbitrator. It also produces significant misunderstandings and frustration when documents are either admitted unexpectedly, or rejected by the arbitrator. It must be remembered that, in the absence of specialized circumstances, the jurisdiction of the arbitrator is determined by the arbitration agreement if one exists, or by the arbitration submission. If counsel do 22 — The Advocate Magazine
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not communicate, and do not create a formal agreement, there can be surprise and/or an undue waste of arbitration time.
Selection of the arbitrator
This is a critical step in client representation and process control. Even where an arbitration agreement specifies the provider organization, the identity of the arbitrator is typically not specified. Thus, in the absence of a stipulation, the arbitration provider will generate a strike list and curriculum vitae to provide the parties with a choice. If the parties are unable to choose, most private providers select an arbitrator at random, subject to local disclosure rules. Arbitrators come in all shapes and sizes with varying demeanors and attitudes. Some are known to compromise, others are better at complex legal or technical issues, some better versed in substantive law than others. If the case needs a strong management hand to rigorously enforce the rules of evidence and insure the requisite timetables are met, the parties will want to work to select an arbitrator known for that level of management, as opposed to one who simply permits arbitrations to meander. If the lawyers want a full hearing, and do not want an arbitrator to “split the baby” they should work cooperatively to identify arbitrators in the community who are not known for their ability to compromise in the issuance of awards.
Pre-hearing activity − the mid-point
Pre-hearing discovery is a considerable source of frustration for parties. Remembering that arbitration is intended to be streamlined and cost-effective as compared to trial, legislation and private ADR rules generally limit the discovery process. Nonetheless, practitioners feel uncomfortable proceeding to hearing in significant cases without having engaged in meaningful discovery. Remember, if the parties can agree on a discovery plan, the arbitrator is obligated to comply with their intentions as expressed in the prearbitration submission. Even where there is no submission, disputes pertaining to discovery and admissibility of documents
may be avoided through a pre-hearing conference or conference call between the arbitrator and the attorneys. This will result in an arbitrator’s order pertaining to the same issues addressed in the prearbitration submission portion of this article. Again, counsel has control starting with selection and moving to establishing a conference call to set out guidelines.
The brief
Perhaps no single activity can demonstrate a lawyer’s lack of commitment to the case than the failure to invest the time necessary to submit a meaningful brief to the decisionmaker. A briefing schedule should be established in the arbitration submission or conference. A brief should be submitted to the arbitrator in advance, and exchanged between the parties. It is often unnecessary to attach exhibits. In fact, unless the pre-hearing conference call established a protocol for joint introduction of exhibits, providing an arbitrator with exhibits before their admissibility has been determined could jeopardize the hearing or the ultimate award because an item that is objectionable may be reviewed prior to the objection being raised. Do not attach hundreds of exhibits to the brief. Instead, reference transcripts and reports by page number (or page and line), and attach a copy of the operative page, with the key information highlighted. At the hearing the entire transcript or report may be introduced. Remember, the purpose of an arbitration brief is “impact.” The opening paragraph should be a clear statement of what the lawyer intends to tell the arbitrator concerning the nature of the case, and the remedy sought. This should be an impact paragraph. The brief should be clear, concise and thoroughly proofread. Meaningful photographic exhibits may also be attached.
The hearing
As counsel for a party, you have more impact upon the outcome than you realize. True, the outcome of arbitration is principally determined by the facts and
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the law. However, in arbitration counsel is presenting to a single individual, or a panel of three. Your professional conviction, the manner in which you present the evidence, and the testimony of the witnesses are key to obtaining a desired result. Lazy lawyering conveys disinterest and a lack of commitment in the claim. The inefficient or ill prepared lawyer will rarely overcome the challenges presented where the facts and/or law are in dispute, and opposing counsel is up for the task. There are steps that competent counsel will undertake in order to assist in obtaining the best possible result. Exhibits: Professional exhibits are helpful. However, there is nothing wrong with handwritten chronologies or charts that are prepared in advance. An exhibit demonstrates to the arbitrator that you believe in your case and illustrates the evidence while concurrently providing an organized roadmap to focus both you and the arbitrator’s attention. Witnesses: It is hard to believe the number of witnesses who appear unprepared. Witnesses should not be coached, in the sense that their testimony is rehearsed as that will come out during cross-examination and impact credibility. However, counsel should take witnesses through a dry run of anticipated questions and assist your witness in understanding the most effective way(s) to respond to examination. With the exception of forensic experts, most witnesses have not experienced skillful cross-examination. These witnesses tend to run on or become argumentative or defensive. Appropriate preparation is the key to avoiding these traps, and insuring that your witness will present the most effective testimony possible. Tell your witness not to argue, and not to explain unless an explanation is requested. Your steps to insure that your witness presents calm, accurate and truthful testimony will do more to assist you, as counsel, in obtaining your client’s desired outcome than perhaps any other single action. Objections: Use them sparingly. You’re playing to an audience of one (or three in panel arbitration). If an objection will not totally block the receipt of evidence, the 24 — The Advocate Magazine
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objection should probably be avoided and the issue addressed during crossexamination. If the arbitrator is repeatedly overruling objections, consider that as a sign that you are objecting too frequently. That said, when opposing counsel is leading the witness excessively, or the objection will absolutely block otherwise inadmissible evidence, then you should be sure to object but do so in a manner consistent with the arbitrator’s personality. Warts: Every case has problems. You should be the one to identify the problems that exist in your case, and deal with them. You control the impact the problems will have on the arbitration panel. If the warts are brought out through cross-examination and it appears counsel was hiding the ball, that could have a disastrous effect on the outcome of the hearing. Do not over-reach: Arbitrators appreciate qualified, prepared and focused witnesses, particularly expert witnesses. When witnesses are calm, lay the proper foundation, and testify in a professional manner, your chance of a favorable interpretation of the testimony is enhanced. When they are not prepared, farfetched, arrogant or take short cuts, they severely undermine your case. Introducing testimony through transcripts: Nothing is better than live testimony. Nuff said. Closing argument: Avoid becoming too dramatic and prepare a concise closing argument that is focused, well reasoned and calm. Do not shy away from telling the arbitrator what you feel is a fair recovery, and why. If you are the plaintiff, ask for a specific amount of money, and if you are the defendant, give the arbitrator options depending on potential findings. There is a trend toward submitting written closing arguments. The negative is that it delays the result and increases the costs of the process. In addition, a busy neutral is totally focused on the hearing at the time of the hearing. Evaluate whether you really want to break this focus. If not, give an oral closing argument.
After the hearing Perhaps no area exists wherein counsel can have the greatest pre-hearing control than in consideration of the posthearing remedy. When drafting the arbitration agreement, counsel can provide in the agreement for post-arbitration appeal. The Ninth Circuit Court of Appeals stated: “The parties indisputably contracted for heightened judicial scrutiny of the arbitrator’s award when they agreed that review would be for errors of fact or law.” The court went on to reject the notion that its review would be limited to the guidelines of the Federal Arbitration Act by holding that the primary purpose of the Act is to insure enforcement of private agreements to arbitrate, in accordance with the agreement’s terms.” (See Lapine Tech. Corp. v. Kyocera Corp. (9th Cir. 1997) 130 F.3d 884). In simple terms you, as the lawyer, may create an appealable and reviewable arbitration process either through specific contract drafting or by agreeing to a postruling remedy that is placed into the arbitration submission document. If you elect not to provide for this review, challenges to arbitration awards are very limited and generally exist only to correct numerical errors, possibly for violations of disclosure act requirements or a few other limited terms.
Conclusion
Consideration and action by counsel at the front end saves surprise at the back end. Participate in the drafting of pre-arbitration agreements and clauses for your clients and when a matter is being set for arbitration, work with opposing counsel to craft a fair and mutually beneficial pre-arbitration submission. In this manner you, and not the arbitrator, will set the ground rules. Alexander Polsky is a principal of JAMS and an adjuct professor of Negotiation/ADR at USC Gould School of Law. He provides mediation, arbitration and special master services in complex commercial, employment, class action, maritime and serious injury litigation, as well as training programs and seminars. He can be reached at apolsky@jamsadr.com.
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Howard Shernoff
Interview:
Mediation methodology An interview with mediator Mariam Zadeh on the mediation process Interview by Howard S. Shernoff
Terminology
HSS (Howard Shernoff): Mariam, mediation seems to have evolved to the point that these days we distinguish between mediation and a mediation session. Mediation is the process that starts with setting a session but may not end until the case is ultimately resolved, even if that happens ten months later by jury verdict. A session is just one step of the process. I shouldn’t say “just” because it is generally the most meaningful part. But is it fair for me to expect that you are going to be ready, willing and able to stay with my case all the way through to resolution? If so, should litigators take more advantage of that? 26 — The Advocate Magazine
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MZ (Miriam Zadeh): You’re right, mediation has evolved. And I would agree that the mediation session, itself, is only one part of the process. A good mediator will stick Zadeh with your case and follow up with both sides until the end, continually looking for resolution opportunities, whether you expect her to or not. Many attorneys seem surprised that I continue to follow up with them even through trial. You never know when a settlement opportunity may present itself. So, yes, it is fair for you to expect your mediator to stay with the case. And yes, litigators should continue to seek the mediator’s assistance well
after the mediation session. A good neutral is a valuable resource who should be committed to you for the long haul.
Modern litigation
HSS: One increasingly hears the sentiment that our civil justice system is much less adversarial than it used to be, that most cases nowadays resolve through the two sides working together in negotiation and not necessarily against one another in an all-or-nothing derby. Do you find that effective negotiation requires skills and techniques not necessarily consistent with traditional trial advocacy skills? If so, what can trial lawyers do to have a more rounded skill-set to better serve their clients?
Methodology continues
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Methodology — continued
MZ: Successful negotiators are proactive rather than reactive. They possess not only strong analytical skills but the ability to view and appreciate the landscape of the case from various angles: their own, their adversary’s, and that of a thirdparty audience, whether it’s the jury, judge, arbitrator or mediator. They are also adept at improvising and adapting without harboring attachment to the positions they hold. These skills allow for fluidity. And fluidity is a necessary component of a successful negotiation since the process must be given the freedom to evolve organically. Fluidity requires the ability to actively listen, problem-solve and quickly assimilate data and recalibrate. And also to eloquently articulate one’s position, have it challenged and be able to respond without becoming emotional or letting issues get personal. These traits can allow a trial attorney to remain fully committed to his client’s cause while simultaneously staying somewhat detached from the outcome. This may not be helpful in trial, but it’s necessary in mediation.
Trial track record
HSS: I’ve always been curious about how much emphasis the defense puts on the trial record of the plaintiff ’s attorney. At my firm, we’re all trial lawyers, and we’re all willing to take a case to trial. Some of us have better, or longer, records than others. Myself, I just try to convey two things: that I won’t hesitate to go to trial, and also that I’m not afraid to lose at trial. I think this last sentiment helps because it tells the defense that whatever points of bad law or fact come my way, they’re not going to deter me. I want them to know that I’m a careful trial lawyer but also a little irrational. Is this the right message to send? MZ: When I worked as a young defense attorney in New York, part of my research entailed investigating the plaintiff attorney’s experience, expertise, trials, verdicts, etc. But I’ve since learned that I was merely scratching the surface with that kind of analysis. If I were to 28 — The Advocate Magazine
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travel back in time, I wouldn’t limit my analysis to the attorney’s past experiences. I’d take a more holistic view and think about whether this particular attorney has the drive, desire and passion to make an impact. Is this individual someone I would call a “true believer” – an attorney who permits his or her decisionmaking to be affected on an emotional and visceral level? If so, the accompanying passion for the case, and its resulting unpredictability, can make the defense nervous – which may accentuate your leverage.
Pre-mediation
HSS: My practice is to never pre-mediate a mediation with opposing counsel. Defense counsel often want to get into conversations about the merits or try to figure out if we’re “in the same ballpark.” And they always want a demand beforehand. I tend to eschew these overtures. I feel that there is too much risk of derailing the process before it starts. Would you endorse this approach, or do you feel that pre-mediation communications among the parties can foster a more productive mediation? MZ: I’m a proponent of “checking in” with your opposing counsel before the mediation session, whether it’s during the convening stage or after the case is already on calendar. There’s nothing worse than having parties come to the mediation with no idea about how the other side perceives the case. I’m not talking about concrete numbers or even settlement ranges, but rather taking the pulse of the case. You would want to know if the defense views your case as having only nuisance-value when you see six-to-seven-figure potential. Learning this for the first time at the session is counter-productive and frustrating for both sides. Likewise, it’s important that each side has at least a basic understanding of the other side’s theory of the case so that half the day isn’t spent educating one another. This can easily be accomplished by exchanging briefs, which I always encourage.
Early mediation HSS: Many courts nowadays are pushing parties into mediation right from the first case management conference. The result is mediations that are early in the litigation, often before much discovery has been exchanged or testimony taken. I used to abhor these early mediations because the success rate is low, as is the value of the case. It was frustrating and disappointing for me and my clients. But I’ve now changed that dynamic by altering expectations. I tell my client that there is a very small chance of resolving at early mediation but that the process will be beneficial in the long run because we may learn about the defenses we face, and we will get a good case evaluation by an experienced third party. Approaching it this way has made the process much more palatable. And in fact there have been many surprises, where the case settled at far higher than I thought possible at that stage. What is your opinion of early mediations? Are there times when they are best avoided? MZ: I have mixed feelings about early mediations. There are times when they are beneficial and other times when, as you point out, they leave parties feeling frustrated. That can make future negotiations more difficult. In situations that turn on a question of fact, it can make sense to agree to a limited, informal discovery exchange, perhaps including deposing two key witnesses. This approach avoids any discovery wars, while ensuring that sufficient information is available at the mediation to reasonably evaluate the case. Cases that rely more on the law lend themselves better to early mediation. Each side takes a position on why the law favors their case, and after spending a couple hours hashing that out, both sides end up having to agree to disagree. From there, we can dive into the negotiation. If we can’t reach a resolution after having debated the legal arguments, then the likelihood is that it will probably require a few rulings
Methodology continues
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Methodology — continued
from the court before negotiations can become productive. So I endorse early mediations not as a general rule but when they make sense.
Mediation briefing
Robert T. Hanger, Esq. Mediator/Arbitrator
with over five decades of experience • Available throughout So. California
• Practice Areas: Complex Litigation, Discovery, Homeowners Association, Personal Injury, Premises Liability and Products Liability
Member, ABOTA since 1983
Member, Association of Southern California Defense Counsel
Member, Los Angeles County Bar Association; Chairman of Industry Liaison Committee (ASCDC) (1995) Guest Speaker, Los Angeles Trial Lawyers Association
TOLL FREE
1.800.347.4512 www.arc4adr.com 30 — The Advocate Magazine
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HSS: I consider mediation briefing a really important topic. I’d like to explore three aspects: (1) timing, (2) exchanging and (3) quality of writing. In terms of timing, my mantra is the earlier, the better. Insurance companies these days make decisions by committee, so I want to give them all the time they need to consider my position, evaluate my case and designate the proper resources to settlement. So I aim to get my brief to them two weeks before the mediation. Regarding the exchange, if you are a plaintiff aspiring to a monetary settlement, you must give your brief to the other side. That’s the whole point. Often the defense won’t give its brief to me because they think they might show their hand, or perhaps they are a little embarrassed by their own aggressive tone. When this happens, I enlist the help of the mediator to get me the brief – or even a redacted version of it. As to quality of writing, I’m a big proponent of excellency in written expression. Mediators have a ton of briefing to read, so I believe you can help your cause by providing a brief that is flawlessly written, easy to read and above all else, not too long. I feel that I have these three aspects figured out, but as always, I’m sure you’re going to show me the error of my ways…? MZ: If your rationale were flawed, I would point it out. But here it’s not. In terms of timing, two weeks in advance is certainly ideal. I typically see briefs come in about a week in advance, which is sufficient for me but not for the defense. There isn’t much to add about exchanging briefs. I’m always in favor of sharing, and I applaud you for showing yours even if they don’t show you theirs. Unfortunately, many of your plaintiff-bar brethren don’t follow your lead – they won’t give their brief unless there’s an exchange. And then at the session they
wonder why the defense isn’t prepared to pay on the case. As to caliber of writing, I would rather not receive a brief at all than receive one that is incoherent or overlong. If I don’t know what your case is about by page 15, something’s wrong. While I certainly enjoy receiving a brief that demonstrates “excellency in written expression,” that doesn’t happen very often. I’m thrilled if the brief is simple, concise, easy to read and comes in on time.
Deception and credibility
HSS: Even a less cynical person than I would observe that everybody is playing everybody else at a mediation session. The clients are playing the lawyers. The lawyers are playing the mediator. The mediator is playing the clients and the lawyers. I guess that is the nature of the beast. Yet I believe that here, as in all aspects of litigation, one value rises above the others: credibility. A lawyer needs credibility with his clients, his peers, opposing counsel, judges and mediators. What’s the best way for a lawyer to lose credibility with a mediator, and what is the ultimate damage? MZ: Understating and exaggerating, which are both forms of deception, qualify as acceptable tactics that leave one’s credibility intact. For example, an attorney might assert that he is not particularly concerned about losing on a motion for summary judgment, when in fact he has significant concern. That’s an understatement. And it’s not taken at face value by either opposing counsel or the mediator, because understatements and exaggerations are expected in this forum. Equivocations, such as indirect or ambiguous statements, and concealments are two other forms of deception often used in negotiations. For instance, in a disability or employment case, the mediator might inquire as to the plaintiff ’s plans to return to work. The plaintiff might respond with, “I haven’t given it much thought because I’m disabled and can’t work,” or “I have been looking for work
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but employers don’t want to hire someone who has been fired.” Now consider that plaintiff ’s counsel is aware that the client has been considering returning to work in some capacity if the disability case settles or that the client’s job search has been less than adequate. Is this considered concealing information? The answer probably depends on which side you ask. Information is being omitted and equivocations are being made, but they are probably within the acceptable range of deception. When any form of deception is taken to the extreme, or if information is not disclosed where there is an expectation that it should be disclosed, then one’s credibility is put at issue. An extreme exaggeration or understatement in the example above might be where the attorney knows his client has an open job offer yet remains silent while the plaintiff represents that he hadn’t thought about working or couldn’t get a job. This is a lie and is unacceptable. Concealing or avoiding disclosure of information that is rightfully expected is certain to destroy an attorney’s credibility with both the mediator and opposing counsel.
MZ: I would caution that if one side is approaching the mediation from that perspective while the other side has expectations to resolve the case, then one side is bound to be let down. The result of that letdown is going to be felt later on when negotiations are revisited. And there will be a price to pay. It could be modest or it could be steep. It could also cause the side that felt let down to reconsider mediations with their adversary in the future on other cases. This ties into credibility. There have been instances where I have been told emphatically at the beginning of a session that the case will not settle because plaintiff is there only to gather insight and information. Hearing that for the first time at the start is awkward because it doesn’t allow the mediator to manage the other side’s expectations. If information-gathering is the objective, the better approach is to let the other side know. The mediator could then facilitate an informal dialog at the session. If that dialog results in a settlement, all the better. If it doesn’t, your credibility and rapport with the mediator and opposing counsel remain unblemished.
Alternative uses of mediation
Case devaluation
HSS: It amazes me that with such a developed system of civil justice, plaintiffs are afforded few opportunities to understand the defenses they face. A plaintiff in a bad-faith case, for example, might discover the insurer’s theories of the case only two years after filing suit, at summary judgment. It seems wasteful. That is why I am almost always willing to mediate. I feel there is nothing to lose, and I don’t see it as a sign of weakness. My opponents know me better than that. To me, the session can be a valuable milestone in the litigation, enabling each side to understand the other before expending further resources. If the case doesn’t settle, the issues are honed, the litigation is streamlined and the chances for settlement down the road are improved. Is this a healthy, good-faith view of mediation, or should a lawyer be committed only to resolving the case?
HSS: Something I always keep an eye on is having my case lose value at mediation. I’ve seen this happen, when a plaintiff begins to negotiate and moves downward from her original demand only to have the case not settle. In the mind of the defendant, the last number on the table becomes the new value of the case. Admittedly this is not a “true” value, but I know that it’s very hard to make an insurance company, for example, go north of that value ever again. As a result, unless I am confident that the negotiations will end in a settlement, I can be reluctant to engage and will advise my client not to negotiate at the session. Is losing value like this a valid concern for a plaintiff? Isn’t it true that you can never move the goalpost back? MZ: Agreeing to mediate assumes the willingness to negotiate. What I hear you saying is that you want to know if the
defense is willing to pay something close to your price, and you want to know that early in the session. I would encourage you to soften that stance because that approach may not allow for the process to unfold. That’s not to say that you should continue negotiating if it becomes clear after two or three rounds that the parties are light-years apart. In that case, I would agree that it probably makes sense to adjourn so that the defense is not offering money that won’t ultimately settle the case, and the plaintiff isn’t losing value. As to moving the proverbial goalpost back, once a plaintiff – or a defendant, by the way – has put a number out there, it becomes extremely difficult to back away from that. Expectations get set, strategies are formed and plans are put into motion. Moving the goalpost throws a monkey wrench into the mix and causes the other side to go into a frenzy, wondering what’s changed. If you don’t have a compelling answer to that question, be prepared for a failed negotiation.
The money dance
HSS: Let’s talk about “the dance” – the back-and-forth money negotiation, which hopefully occurs after the parties have articulated their respective views and realize that no one is going to change his mind. I used to shoot from the hip somewhat. I’d enlist the mediator’s help in formulating offers and counter-offers and generally keep my eye on the end result that I desired. I’ll add that I’m terrible at anything involving numbers. But then, after observing some very smart negotiators in action, I realized that I should take a more clinical approach and carefully consider my offers and always formulate and monitor the midpoint as counter-offers come in. I feel like my results improved. Am I fooling myself? Does the other side simply have the money they have, and in seeking to alter the x or y axis am I actually practicing a pseudo-science? MZ: There is a science and an art to negotiating, so it’s a good thing that you’re no longer just shooting from the hip. You’re not fooling yourself. Your SEPTEMBER 2014
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DO ON N’
Methodology — continued
TR G results have improved for a reason, and that is because you’ve taken a more clinical approach. And it might help to understand that you can find yourself in two different kinds of negotiations: cooperative and parallel. A cooperative negotiation follows the pattern you describe and involves attention to the mid-point of the numbers and keeping track of the degree, proportion and sequence of moves. The parties are engaging and responding to one another. Now let’s contrast that with parallel negotiation. There are times when parties are so far apart that the only conceivable way to move forward is in parallel. An example of this would be where the plaintiff demands $950,000, and the defense offers $2,000. A cooperative approach, where you’re keeping your eye on the mid-point and responding in kind, would never work here. If, however, both sides are willing to move forward in parallel, then the possibility of resolution remains viable. In this scenario, plaintiff may have demanded $950,000 hoping to end at $350,000, and the defense may have responded with $2,000 because they value the case at $150,000. If each side works its way in parallel toward its respective goal, the session may end up with a spread that can be bridged with a
mediator’s proposal – in this example, say at $250,000. This form of negotiating can be more frustrating for the parties and really requires the assistance of a seasoned mediator to keep the parties focused on the endgame rather than on each round of the negotiation.
Mediator’s proposal
HSS: Ah yes, the ever-popular mediator’s proposal. It seems like this nifty tool in the mediator’s toolbox is reached for more and more these days. And I’ve seen it close some pretty large gaps. One mediator I know has told me that he won’t make a mediator’s proposal unless he’s 99 percent sure it will be accepted by the parties. Otherwise, he loses credibility, and the proposal as a tool starts to lose its effectiveness. Is this 99 percent rule your standard as well? Should trial lawyers wearing their negotiator’s hat be doing anything to better position their case for a mediator’s proposal? MZ: I do have colleagues who follow the 99 percent rule, or something close to it. But what happens when you’re not 99 percent sure? What if one side wants the neutral to make a proposal and the other side is harder to read? Things get complicated when you adhere to
stringent guidelines. I won’t make a proposal unless I feel relatively confident that each side will give my proposal serious consideration. I know – what makes me “relatively confident,” and how do I determine whether “serious consideration” will be given? I gain that information through discussions with each side before making a proposal. I like to be as open as I can without turning the proposal into a negotiation between counsel and me, which can happen if you’re trying to ensure 99 percent success. My proposals meet with success about 95 percent of the time, but not because I require it to be that way. It’s merely the statistical outcome of the approach I take. In terms of positioning a case for a successful proposal, the key for attorneys is to have established a certain level of transparency and trust with the mediator. Everybody “playing” each other, which you mentioned earlier, has to come to a close because if I’m tasked with bringing everyone together with one final move, I need to know what I’m working with. I might tell the parties something like, “It’s time to open the kimonos.” If the rapport is where it should be by that stage of the session, then the resulting goodwill will go a long way toward getting the case done. Howard S. Shernoff is managing attorney of the Los Angeles office of Shernoff Bidart Echeverria Bentley. He handles cases involving insurance bad faith, business disputes and securities fraud. He can be reached at hshernoff@shernoff.com.
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SEPTEMBER 2014
Mariam Zadeh, partner with Jeffrey Krivis at First Mediation, has resolved thousands of disputes, including complex insurance, mass tort, employment, catastrophic injury and class-action matters. She obtained her L.L.M. from the Straus Institute and is a Distinguished Fellow at the International Academy of Mediators, a global organization committed to integrity and competence in mediation. She can be contacted at mzadeh@firstmediation.com.
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Jan Frankel Schau
CAALA Board of Governors member
Getting the most out of your “at BATTs” Mediation is your “Best Alternative to Trial” whether your need is confidentiality, a quick resolution or meeting a client’s desire to be heard “People will come, Ray. They will arrive at your door, as innocent as children, longing for the past. They will pass over their money without even thinking about it: for it is money they have and peace they lack. And they will watch the game and it will be as if they dipped themselves in magic waters. People will most definitely come.” (Field of Dreams, Universal Studios, 1989.) Like an Iowa farmer who hopes to build a baseball field on a corn farm, we are increasingly leading our clients to 34 — The Advocate Magazine
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mediation, a settlement of their claims, even though they have retained us to “seek justice” and “penalize the wrongdoer” by taking their precious cases to trial. In the early days of mediation, lawyers were concerned about appearing to be weak if they suggested mediation to their opposing counsel or their own clients. Times have changed; it is now the rule rather than the exception that most every case makes an attempt at mediation or informal settlement before
the bright lights are activated and the score board begins counting balls, strikes and runs in the theatre of the courthouse.
Attribution bias & reactive devaluation
Using a neutral third party to assist in these delicate negotiations can be invaluable for many reasons. First, when you set the value as your initial demand,
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there is an automatic psychological phenomenon known as “attribution bias” which will sometimes cause your opponent to assume, because it came from you, that the reasoning and values are misplaced. By engaging an intelligent, trustworthy neutral to articulate how you arrived at the particular opening demand, you are less likely to trigger attribution bias and more likely to get into the negotiating game in earnest. Consider the construction accident where there are several defendants, with insurance carriers who are at odds with one another about the value of the underlying case as well as their relative contribution, the reservations of rights and the burden of who is taking the laboring oar in the costs of defense. In that case, a hypothetical initial demand of $1 million by the plaintiff, which extends beyond every available defendant’s coverage, may be a non-starter. But with a diplomatic neutral, who recognizes and can manage the various participants’ expectations, the case can resolve with a satisfied plaintiff and several defense attorneys who can save face with their respective carriers by putting together a reasonably managed package
to present to each carrier on a hypothetical basis. In addition, using a neutral to convey the initial, often “outrageous” demand can safeguard the initial demand from what is known as “reactive devaluation.” Similar to attribution bias, this negotiation tactic is an almost automatic response designed to send a message of “outrage meets outrage.” Just as in baseball, the way the first pitch is delivered may speak volumes as to how the game will proceed. Using a skilled and diplomatic professional may save you and your clients many innings of anxiety on the day of mediation.
Using a neutral
Practically speaking, it is worth spending that extra hour discussing how you arrived at your pre-mediation demand and enlisting the assistance of a savvy neutral to articulate the basis for the demand, however inflated it may be. When a neutral third party presents it, it is much less likely to be met with disdain and ridicule than if you presented it yourself, simply by virtue of the team to which each “side” has been assigned in the game of negotiation.
The other advantage in using a neutral to help evaluate the best strategy for negotiation is that your client hears from a respected third party about the potential pitfalls of his case and is better prepared to manage his own expectations if the “reality testing” comes at the beginning of the hearing, instead of disappointing results at the end. There was an interesting study conducted by social psychologists in the Midwest who approached busy business people during their lunch hour and asked if they would help a foster-care agency by accompanying a youth in the foster-care system to a designated outing on one weekend per month. Not surprisingly, few agreed. On the same day, another group of psychologists stopped men and women on another street corner nearby and asked if they would be willing to adopt a child. None agreed. Then they asked if they would be willing to chaperone a foster child one time per month, on the same terms and conditions as their counterparts had asked. Approximately twice as many agreed, because the psychologists had deliberately managed their
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SEPTEMBER 2014
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we expectations by intentionally inflating their initial request so that a more modest proposal, even moments later, would be met with more open-mindedness and even assent. Negotiation is contextual and whether a party is “getting a good deal” depends upon what it is compared to. When presented with two options: a full time, forever, commitment to adopt a child, and chaperoning on an occasional afternoon, it was clear that more were willing to accept the latter as a reasonable option. Before the first offer is made, it is an invaluable management tool to have a neutral third party talk through the expected result of a particular starting offer. This dialogue should occur with you and your client as well as with opposing counsel and her client. The neutral can, if you invite them to do so, put the negotiation into context so that both parties are continually managing their expectations throughout the long negotiation process.
Customize the mediation process for maximum benefit Ray Kinsella: “Don’t we need a catcher?” Shoeless Joe Jackson: “Not if you get it near the plate, we don’t.” Clients are generally less certain than their lawyers about the rules of
mediation and trial. Trial lawyers know that trial is not science and there are no exact ways to predict the outcome. It is important to draw the distinction between the formality and rule-bound courtroom trial and the flexible, customizable process found in mediation. By customizing the mediation, you can gain control of the rules and set the negotiation up for success. For example, in a recent case of wrongful termination based upon violation of public policy after the plaintiff reported a widespread failure to pay accurate earned commissions, the employer ended up going out of business and being acquired by a new company. There were multiple insurance policies available, but none that covered the disputed claim without a reservation of rights. Plaintiff ’s counsel (and her client) had grown weary of dealing with four different lawyers, each of whom were expressing that their own client had unique reasons why they were not at risk in this lawsuit. By successfully getting one defense counsel’s agreement to recommend mediation to all (some of whom appeared at the mediation hearing even though they had not appeared in the lawsuit yet), plaintiff ’s counsel was setting the case up for maximum success. You can demand, as a condition to mediation,
that certain individuals and company representatives are physically present at the negotiating table. Carefully consider whom you will likely need, and whether they will need to be present or available by phone, Skype or e-mail. You have the control even where you would not have the right to compel these people to trial, because the mediation is a voluntary, consensual and non-rule-bound process. The next step in the planning is to determine the “agenda” for the mediation. Should the mediator begin with attempting to determine an appropriate allocation as between the disputing defendants, or begin by pegging the value of the plaintiff ’s claim and then sorting out the rest? Should the defendants negotiate separately or together? Does the plaintiff ’s counsel want to risk being outnumbered by a united front or negotiate through a designated spokesperson for the entire defense “team”? All of these are options, which you may select to maximize the likely outcome at a mediation hearing. The obvious benefit to using a professional to assist in negotiating a case with multiple defendants and numerous issues beyond the damages is that she can work with you to design a process that will be effective, efficient and flexible enough that “if you get the ball near the plate, you don’t need a catcher.”
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SEPTEMBER 2014
In a security case, in which a retail store is sued for false imprisonment, false arrest, and negligence after a very aggressive security guard wrongfully detains a suspected shoplifter and forcefully knocks him to the ground, only to find he has not stolen any merchandise, both parties may have a real interest in maintaining the confidentiality of the action. Videotapes, incident reports, criminal records and other personal information may be better left “off the field.” The typical confidentiality, which is a hallmark of mediation, allows the
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parties to control the flow and dissemination of information. By working with a responsible mediator, you will be able to
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successfully hold back the damaging information unless it is truly helpful to get your case resolved. You may even
want to time the mediation hearing to occur before embarrassing or damaging depositions have been taken or complete discovery of documents has occurred. And even after the damaging documentation has been exchanged, you can certainly craft your own informal protective order, allowing only the eyes present at the mediation hearing, or the mediator, to view the damaging or embarrassing evidence. In some instances, a savvy litigator will show the mediator informally videotaped interviews of witnesses or forensic evidence captured on their computers, but not yet provided to the other side. These confidential bits of evidence can be extremely compelling, yet effectively withheld from the other side’s view, in case the matter does not settle and litigation continues. One of the other benefits of mediation is that you can effectively “seal” all records and evidence and protect disclosure of anything that is revealed as a condition to the ultimate settlement if that is what you and your clients desire. On the other hand, the confidentiality of the mediation process may, at times, be exactly what your client does not want. Often times, clients believe that the public nature of a trial will be cathartic for them and allow them to fully express their hurt and damage and gain some vindication beyond a general or even special verdict. If that is the case, upon your very diplomatic request, a sensitive mediator will invite your client to fully express themselves, either to her or the other side or both. After all, many plaintiffs are genuinely victimized by the wrongdoing of the defendants they have sued. When they conclude their case, they may suffer what psychologists refer to as “loss reaction”: that deep wound that they have been harboring for the past two to five years is suddenly gone, replaced by money, but nothing more. They may genuinely mourn the loss of the struggle that got them to that point. Honor that by permitting them to express their emotions in the mediation process. In that
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way, you will maximize their personal satisfaction beyond the monetary gain.
Let the magic happen
Litigation is hard work, as is negotiating to end a litigated dispute. It takes courage and humility to give up your vision for how your best day at trial may go for the sake of your client’s best interest when a respectable offer comes through. Don’t discount your own role in stepping aside from controlling the discovery, flow of information, timing and litigation strategy when, at the eleventh hour, an offer comes through which your client wants to accept. As Terrence Mann, the acclaimed author and ‘60s activist said to Ray Kinsella in “Field of Dreams”: “Then they killed Martin, Bobby and they elected Tricky Dick twice, and people like you must think I’m miserable because I’m not
“There is enough magic out there in the moonlight to make dreams come true” (Dr. Archibald ‘Moonlight’ Graham to Ray Kinsella in “Field of Dreams”).
involved anymore. Well, I have got news for you. I spent all my misery years ago. I have no more pain for anything. I gave at the office.” For trial attorneys, there is a little “loss reaction” too, when we give up a case to a settlement. All of those deadlines, anxieties and strategies get neatly boxed up and put into a filing cabinet. Take heart, they will inevitably be replaced by another file at your office. By approaching mediation cleverly, preparing diligently and stepping away
from control to allow the process itself to achieve the best result for you and your clients, you can achieve the best outcome possible. Jan Frankel Schau, Esq. of ADR Services, settles litigated cases arising out of employment, tort and business disputes. A dedicated neutral since 2003, Jan was recognized as a Top 50 Neutral by the L.A. Daily Journal in 2013 and a Super Lawyer for the past six years. A Distinguished Fellow of the International Academy of Mediators, she is also a popular trainer, author and lecturer on issues related to Alternative Dispute Resolution and the Author of a book, “View from the Middle of the Road: A Mediator’s Perspective on Life, Conflict and Human Interaction”. Follow her musings at: www.schaumediation.com/blog.
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R Robyn Weinstein
Hollywood Confidential A discussion of confidentiality concerns in high-profile celebrity mediations Public figures as well as high-profile businesses have an obvious interest in private and confidential settlements of their disputes. For mediators and advocates who assist high-profile parties to resolve their disputes, it is important to address confidentiality concerns early, to help parties understand and consider issues of public perception, and to help clients manage the public relations aftermath of a dispute. The purpose of this article is to discuss confidentiality concerns relating to high-profile parties in mediation, the use 46 — The Advocate Magazine
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of non-disclosure or confidentiality agreements in mediation agreements, and the use of public relations techniques after a high-profile dispute is resolved.
Confidentiality in California
When representing high-profile individuals or companies as parties to a mediation, it is important to understand the limitations of the California Evidence Code as it applies to statements made during the course of mediation. California Evidence Code section 1119 (a) states:
Except as otherwise provided in this chapter: (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
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The statute only protects statements made during the course of mediation from admissibility during subsequent litigation. The Evidence Code does not protect information discussed at the mediation from being disclosed to third parties or from being shared in a public forum. Unless agreed to otherwise, parties to mediation are permitted to share information with the public about statements made during the course of mediation as well as information about any settlement that is reached. Therefore, if confidentiality is not addressed as a part of the settlement agreement, parties may later share information about the mediation, negotiations, the amount of the settlement, and any other salacious information that emerges during the mediation.
Confidentiality and non-disclosure agreements In order to expand upon the confidentiality provided by laws, high-profile parties may wish to incorporate a confidentiality or non-disclosure agreement (NDA) into settlement agreements. NDAs create a confidential relationship between the parties as well as a legal obligation to keep the protected information secret. In his article about the use of NDAs to protect trade secrets, Rich Stim explains that an NDA can be either unilateral or bilateral. “If an agreement is unilateral, it protects the person who is disclosing the information from the other party to the agreement. If an agreement is bilateral, both parties have exchanged information, which they each expect the other to keep
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confidential.” (Richard Stim, A nondisclosure agreement (NDA) helps a business protect its trade secrets NOLO, https:// www.nolo.com/legal-encyclopedia/ nondisclosure-agreements -29630.html.) Stim also explains that there are five components of an NDA which include: 1) definition of confidential information, 2) exclusions from confidential information, 3) obligations of receiving party, 4) time periods, and 5) miscellaneous provisions” such as liquidated damages. (Richard Stim, A nondisclosure agreement (NDA) helps a business protect its trade secrets NOLO, https:// www.nolo.com/legal-encyclopedia/ nondisclosure-agreements-29630.html.)
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When drafting the definition of confidential information, it is important that it be done in such a way as to outline the content of the confidential information without disclosing any of the secret information. This is paramount because a settlement agreement that results from mediation may be disclosed in a court of law for purposes of enforcement if the parties satisfy the provisions set forth in Evidence Code section 1123(c). In defining the confidential information, Stim states, “the purpose is to establish the boundaries, or subject matter of the disclosure without actually disclosing the secrets.” Parties may also have an interest in carving out some exceptions to confidentiality based on their individual needs. The exceptions might be in the form of a public statement or press releases regarding the dispute.
The NDA should also describe the specific obligations of the party to be bound by the confidentiality statement, such as limits on communication regarding the settlement as well as the surrounding negotiations and mediation session. Additionally, some NDAs incorporate specific time limitations in which the agreement will be enforceable. In drafting the NDA, parties may also want to consider incorporating a liquidated-damages provision against the party in breach of the agreement. Damages could include a specific sum, or a more general cost such as attorneys’ fees to the prevailing party.
How and when to discuss confidentiality agreements
It is good practice for advocates to ask their mediation provider or mediator
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about confidentiality agreements well in advance of the mediation. Advocates with particularly high profile clients may also want to ask the mediators to sign an NDA while the mediators are running conflict checks and going through the selection process. Mediators are under an ethical duty not to disclose information pertaining to a mediation, but are not under a statutory duty to withhold information. Advocates may also ask witnesses, spouses, children, and support people who are a party to the mediation to sign an NDA as well. Many mediation providers ask the mediator and the parties to sign a confidentiality agreement at the start of the mediation, but the content of those agreements varies and it is unusual for provider agreements to incorporate limitations on statements made to third parties. Additionally, many independent mediators take the position that it is up to the parties to raise issues relating to confidentiality to third parties. Most independent mediators typically will not address issues of confidentiality unless they are raised by the parties. As an advocate, addressing the issue of confidentiality at an early stage in the mediation can prove helpful during settlement negotiations. Parties will often negotiate for hours in order to reach a monetary settlement, yet do not address issues of confidentiality until they are drafting the settlement agreement. If confidentiality is not addressed until after a monetary settlement is reached, additional negotiations regarding the limits of confidentiality may take place. Some plaintiffs may even make additional financial demands based upon a defendant’s request for confidentiality and vice versa. Sometimes a party may feel that it is an important part of his or her “personal justice” to be able to share information about the settlement. Others may desire that the defendant take “responsibility” for his or her actions. Conversely, a defendant may want to share information about the settlement in order to address a public perception issue, while the plaintiff may wish the settlement remain
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private. If the parties do not address the issue of confidentiality early on, the parties may then need to engage in a second negotiation, which can put the first negotiated agreement at risk for failure. Advocates and mediators should also be aware that negotiating the wording of a public statement or press release can be time consuming and require additional hours of negotiation. Informing clients of these potential issues at an early stage and coming to the mediation with proposed statements in mind may be helpful in efficiently reaching a resolution on issues of confidentiality.
Breach of a mediation-confidentiality agreement Even with the insertion of confidentiality agreements, there remains a risk
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that the information will somehow be released. Remember Carrie Prejean? Prejean was the former Miss California who came in second place at the Miss USA Pageant after she shared her views on traditional vs. same-sex marriage. After the pageant, Prejean filed suit against the pageant executive directors based on defamation, public disclosure of private facts, religious discrimination, and emotional distress. The parties ultimately decided to settle the dispute and attended a mediation hosted by JAMS. At the mediation, the parties reached a settlement and signed a JAMS confidentiality agreement. The parties also inserted their own confidentiality statement in the settlement agreement, which required that specific information revealed during the mediation remain
confidential and be destroyed, and that the Prejean parties would be entitled to seek damages for any violation of the non-disclosure agreement. (LiMandri v. Wildman, Harrold, Allen, & Dixon, LLP et al. 2013 Cal. LEXIS 7592) The confidentiality clause states: Each of the pageant-related parties, and their counsel shall destroy any and all tangible copies of, and eliminate and purge all electronic copies of, those certain video and photographic materials . . . Further, none of the pageantrelated parties shall ever, directly or indirectly, reveal that such material exists or existed; the contents of such material; the nature of such material; and/or, the source of such material. Each party in the possession of such
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photographic or video material shall subscribe a sworn affidavit affirming the destruction and/or purging (as applicable) of such material. (LiMandri v. Wildman, Harrold, Allen, & Dixon, LLP et al. 2013 Cal. LEXIS 7592) One day after the settlement was reached, details of the settlement and the negotiations were leaked to and reported by TMZ. TMZ reported that Prejean settled for around $100,000 but also that during the mediation, Prejean was shown footage from a sex tape that depicted her, and that she settled for a small sum to avoid the release of the tape. (Prejean Sex Tape Triggers Settlement, TMZ (November 4, 2009, 7:00pm EST), http://www.tmz.com/2009/11/04/carrieprejean-sex-tape-settlement-misscalifornia-usa-pagneat/) The information released was severely damaging to Prejean’s reputation and was released in breach of the confidentiality and settlement agreements. Subsequently, Prejean’s attorney, Charles LiMandri, filed suit against the defendants and their attorneys for breach of the settlement agreement, breach of the JAMS confidentiality agreement, fraudulent inducement, and breach of the implied covenant of good faith and fair dealing. LiMandri alleged that only Prejean, the mediator, and the defendants were in the room at the time the sex tape was revealed and argued to the satisfaction of the court that the defendants may have breached the agreement. (LiMandri v. Wildman, Harrold, Allen, & Dixon, LLP et al. 2013 Cal. LEXIS 7592) Once the information was released there was little value to the settlement for Prejean. She and her attorney were left to litigate for more than four years in order to prove the amount of damages caused by the breach.
The Gulliver case
Another example of a breach of confidentiality agreement comes from a Florida case, Gulliver Schools, Inc. v. Snay, 2014 WL 769030 (Fla. Dist. Ct. App. February 26, 2014). In this case, the parties had a clear liquidated-damage clause that stated:
[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement. . . A breach . . . will result in disgorgement of the Plaintiffs portion of the settlement Payments. After settlement was reached, the plaintiff disclosed information about the settlement to his daughter who subsequently posted on Facebook, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The Facebook post was sent to the daughter’s more than 1200 Facebook friends, some of whom were former or current students of the Gulliver School. After the post, the defendant informed plaintiff that he breached the agreement by telling his daughter about the settlement. The plaintiff then sued to enforce the agreement, but the Florida appellate court found that the plaintiff was in breach and therefore not entitled to retain his portion of the settlement. This case shows how strictly confidentiality clauses are enforced, and also that they should be carefully crafted and consider third parties such as children and spouses. In light of the Prejean case and the Gulliver case, advocates may want to negotiate for a specific and reasonable amount of liquidated damages in the event of a breach. This specific amount can serve as an additional motivator for compliance and reduce the need for subsequent litigation.
An attorney hiring a public relations consultant should understand that the communications with that consultant will not be privileged communications unless the following requirements are met: (1) communications between the PR firm and the attorney are made in confidence; (2) the services of the PR firm are necessary to assist the lawyer in providing the client with legal advice; and (3) the communications between the PR firm and the attorney are predominantly legal in nature. (Michael Lasky, Navigating the attorneyclient privilege, PR Week (November 15, 2013), http://www.prweekus.com/article/ navigating-attorney-client-privilege/ 1274090) PR firms that manage legal disputes should maintain a privilege log, which records the nature of the communications between the attorney and the PR firm. Attorneys may want to maintain a similar log in case it is necessary to show that the purpose of communications are predominantly legal in nature. Advocates representing employers should consider if and how information about the settlement should be released to employees. Many employers have an interest in keeping the settlement confidential from employees in order to prevent similar claims from being filed. Other employers may want to be able to announce to their employees that the ongoing litigation is complete. Advocates should work with their clients to determine if information about a settlement should be released, and if so, the optimal way to release the information.
In the case of Carrie Prejean, once the information about the sex tape was released, the damage to her reputation was done. High-profile parties should always be prepared for the possibility that their private information may be released. One way to prepare parties for this possibility is to hire a public relations professional to assist in managing the public perception of the client and the dispute.
In high-profile divorces the couple often releases a joint statement regarding the dissolution of their marriage. Rather than releasing information about their separation through legal documents, the celebrities craft a joint public statement that they release themselves explaining how they plan to separate. Consider the recent example of the March 2014 “conscious uncoupling” of Gwyneth Paltrow and Chris Martin. Their public statement
Public relations considerations
Joint statements
SEPTEMBER 2014
The Advocate Magazine — 55
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Confidential — continued
was released through Paltrow’s ecommerce site, Goop, which drove so many visitors to the site that it crashed for a brief peri-
od. It’s clear that Paltrow and Martin saw additional opportunities in the way the information was released and created a
positive outcome from what many might consider a very negative situation. In light of this example, parties may want to negotiate when and how the statement is released and make sure to include the text of the joint statement as well as information about its release as a part of the written settlement agreement. Such statements should be discussed as a part of the mediation in order to avoid further disputes once the settlement agreement is complete. Terry Fahn, a senior executive at Sitrick and Company, who specializes in strategic communications, litigation support, crisis and reputation management and transactional public relations, explained that the best way to craft a joint public statement is through “collaboration with attorneys, clients, and public relations professionals.” Fahn described a case where the plaintiff demanded that a public statement be released as part of the settlement. The defendant’s attorney hired Fahn to help draft the statement and assess the long-term effects the statement might have on the defendant’s reputation. With Fahn’s assistance, the parties developed a statement that was satisfactory to both parties, and a settlement was reached. Fahn described another scenario where a plaintiff and defendant ultimately agreed to disagree regarding the content of their public statements. In that case, the parties crafted their own public statements that did not conflict with one another and released them separately when the settlement was complete. Solutions regarding the release of information are not restricted and can be creatively crafted to benefit both parties. Advocates should encourage their clients to be open-minded and creative in the way the parties release information about the dispute. Mediation often provides an excellent opportunity for parties to maximize the outcome of their resolution.
Conclusion
When resolving disputes for parties where the dispute is of public interest,
Confidential continues 56 — The Advocate Magazine
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Steven G. Mehta is one of California’s premier, awardwinning attorney mediators, specializing in intensely-difficult and emotionally-charged cases. Steve’s book, 112 Ways to Succeed in Any Negotiation or Mediation, will turbo-charge your negotiation skills regardless of your experience. To schedule your mediation or order a copy of Steve’s new book, call
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advocates and parties should consider issues of confidentiality at the outset of a mediation. Advocates should consider incorporating an NDA or confidentiality clause into the settlement agreement, and discussing this with opposing counsel at an early stage during negotiations. Further, advocates for high-profile parties should consider the effects of the public aftermath of a dispute and incorporate public relations’ techniques, such as developing joint statements and hiring public relations professionals, in order to maximize the outcome of the dispute resolution process.
Robyn Weinstein is the Program Director, Arts Arbitration and Mediation Services (AAMS) at California Lawyers for the Arts. She is also an attorney and mediator including arts and entertainment matters, employment disputes, contract disputes, real estate disputes, as well as family disputes. She is the current president-elect of the Southern California Mediation Association and adjunct clinical professor of mediation at the Straus Institute for Dispute Resolution at Pepperdine School of Law. Previously, she served as adjunct clinical professor of mediation at the Benjamin N. Cardozo School of Law.
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SEPTEMBER 2014
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Therese White
Resolving the emotions-driven employment case Three simple tools for managing runaway emotions Anger. Sadness. Fear. Disgust. Shame. As you well know, disputes are often full of powerful, negative emotions on both sides. Sadly, these emotions can overwhelm good judgment and damage attorney/client relations, thereby reducing the possibility of a timely and successful out-of-court resolution. Sometimes, they even force an otherwise risky and unnecessary trial. This article is about helping attorneys and other professional conflict managers reestablish order after the client’s emotional brain has overpowered his thinking brain. It’s also about the effective use of mediators to accomplish this task. 60 — The Advocate Magazine
SEPTEMBER 2014
When emotions take over
In his classic book, Emotional Intelligence, Dan Goleman says, “(Emotions) are self-justifying, with a set of perceptions and proofs all their own . . . When in control, the emotional mind harnesses the rational mind to its purpose, thus distorting past memories and current realities.” What matters is what seems to be rather than what is, what is desired rather than what can be reasonably expected, and what is demanded rather than what can be negotiated. An emotion is defined as a feeling and its distinctive thoughts, psychological
and biological states, and propensities to act. There are hundreds of emotions — good and bad. Emotions have their own variations and nuances, not to mention the ability to blend with other emotions. Some people manifest their negative emotions in outbursts, others through quiet storms. But one thing for sure is that when people are acting on an emotion (be it for a split second or for a lifetime), they honestly feel it is the best thing to do, no matter how stupid it may appear later. You see, most people act out because they prefer a conflict they know to the resolutions they cannot
Emotions-driven continues
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completely imagine. People also use emotions to keep from getting at the core of the conflict, which may be too painful to face head-on. It’s not unusual for people to use strong emotions to
avoid having to deal with owning their role in the conflict. In any event, emotional over-reactions and under-reactions are merely attempts to gain or regain control.
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Experience has shown that given their left-hemisphere mindset, many conflict managers, especially attorneys, have great difficulty dealing with the emotions of their clients. Having been trained in the logic-driven rigors of fact-finding, analysis, and debate, it can become impossible to properly address highly charged matters of the heart and spirit. For that matter, attorneys often unwittingly feed the emotional fires of their clients. Here’s how . . . Conventional wisdom demands getting a “good, tough lawyer to protect your interests.” Knowing this, some attorneys feel it’s their duty to play that role to the extreme. The issues between the disputants then become subordinated to the increasingly complicated litigation process, and the “winner-take-all” battle between the attorneys. Feeling overwhelmed, the clients are forced to hide behind their attorneys, and relinquish all control over the outcome. At this point, according to a seasoned mediator, “effective communication between the (parties) has been all but eliminated, and…the parties undoubtedly feel more not less fearful and experience greater not less anxiety.” This is where “emotional intelligence” can put the conflict manager and their client on the same page. Here are the tools to foster that goal:
Tool #1: Emotional collisions
Like it or not, there is no official place for emotions in the litigation process. This is unfortunate in that a simple clearing of the emotional air can move numerous conflicts to resolution. Only then can the unseen emotional complexities surrounding a case surface. This is especially true in situations involving workplace diversity, discrimination and harassment. I recently mediated a seemingly impossible, employment conflict pitting a “facts-only” corporate attorney against an abrasive, highly emotional plaintiff. The breakthrough finally came in caucus when I validated the plaintiff ’s frustrations and
Emotions-driven continues 62 — The Advocate Magazine
SEPTEMBER 2014
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asked what I could do to make the process easier. That is when she confided that she had a mental disability (unbeknownst even to her attorney) that interfered with her ability to communicate civilly under stress. I then decided to keep the two sides apart and to translate their respective points of view in a manner each could respect. That important finding made all the difference for a variety of logical and emotional reasons. The case settled quickly because the plaintiff finally felt listened to and understood. And the defendant’s attorney was able to appreciate the validity of the plaintiff ’s position.
Tool #2: Reality checks
“Is that all they’re willing to offer, after all I’ve been through?” “Why should we give that (expletive deleted) a dime?” These are examples of what mediator Jeff Kichaven calls the Climatic Question. It is the defining question that conflict managers know will arise sooner or later, and that they had better be prepared to answer with conviction. Otherwise, cases that should settle won’t, and the manager is stuck with a continuing lawsuit and a client or boss with serious doubts about the manager’s effectiveness. When faced with these and other troublesome situations, conflict managers should take advantage of a good mediator’s ability to safely deliver bad news to difficult, inflexible clients by expanding their perspectives. Take, for example, the case of a delusional client who wouldn’t back off the overly “optimistic figure” his attorney quoted well before unexpected discovery suggested far less. The attorney feared to further press the issue with the client; so she pursued mediation. The opposition concurred, and I was selected to mediate the case. After the mediation, I learned that I had been the agent of reality that the attorney in question had expected me to be. That is, I presented (in caucus) some modest outcomes of similar
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cases I had experienced and talked about the inherent risks of a trial. After presenting the reality check, I left the room and invited the client and his attorney to discuss the information so
they could agree on next steps. Not surprisingly, the client quickly adjusted his stance, and was very happy accepting a more reasonable figure recommended by his attorney.
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Tool #3: Non-monetary solutions “When they say it’s not the money; it’s the money − but not every time.” That old saying has been modified to recognize the fact that emotions aren’t always driven by money alone. Mediation unlike litigation is excellent at finding the pivotal, non-monetary needs that can sabotage an agreement. This is because skilled mediators are equally adept at dealing with the interests of the parties as well as the facts of the case. Getting away from win-lose debates over which side has the higher quality facts and moving toward creative, collaborative solutions are at the heart of the mediation process. Think how often you’ve heard this statement or its equivalent from a distraught disputant: “I just don’t ever want this to happen to anyone else.” Concern for others is as much an emotional interest/need as are safety, greed, and revenge. Accordingly, a defending employer’s offer to begin a manager sensitivity training program might be just the thing to end a stalemate. Sadly, if attorneys aren’t truly sensitive to the significance of such seemingly innocuous statements, they miss out on the opportunity to really satisfy their most difficult clients.
Bonus tool: Diversity antennae (be alert)
The workplace has become a primary meeting ground for people of highly diverse backgrounds. However, it would be very limiting to think of diversity issues existing only between the disputing parties. There may also be some very real problems between the parties and their respective representatives, as well as problems with the neutrals hired to help resolve the conflict. Thus, there are the clashes of decision-styles, communications patterns, personal interactions, expectations, behaviors, priorities, role definitions, and leadership styles. Each participant has his own unique definitions, assumptions and stereotypes. And when they are
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challenged, a cycle of distrust and emotional storms can rapidly develop. Imagine this situation: You are a 20-something, Hispanic, single mother, clerical assistant who is accusing her boss of sexual harassment. He is a middle-aged, married, white, executive v.p. You’re in a mediation room with the accused and his all white male (goodol’-boy-network-looking) defense team. And, by the way, you’ve just realized that your African-American attorney has much more in common with them than with you. The mediator is expected to arrive any minute. Some loaded questions: • If you were she, just how trusting of anyone currently in the room would you be? • Who would you least want to see enter the room as the mediator? Why? • Would you trust any of them? Or would you be tempted to trust yourself and, by default, your own emotional selfprotective behavior? Unfortunately, I have seen this scenario played out countless times, and not just in harassment complaints. I have seen similar imbalances across all types of employment dispute resolution processes, and their very predictable results. Conflict managers should not assume that their clients trust them without reservation. Nor should they select neutrals solely on the basis of their legal credentials. Rather, these managers should evaluate the potential for “diversity mismatches” and move to address them, forthwith.
Conclusion
Apprehension/despair, embarrassment/ humiliation, and wonderment/shock are just a few of the numerous other misread, emotional deal-killers. Good mediators know how to identify them even in their most subtle forms, and then help discover effective solutions. And these solutions may have little to do with money. Sometimes nothing more is needed to make it all go away than a sincere apology and an enforceable promise to change.
My final advice, when presented with an emotionally charged dispute(s), is to select a determined mediator and steadfastly commit to the mediation process. My friend and mentor Kenneth Cloke says, “Refuse to give up on anyone, no matter how unpleasant, opinioned or difficult they are to deal with.” The process and the aforementioned tools work! Even when it seems impossible to reach people, or when pain and rage explode, there’s always that possibility (no matter how remote) that someone will say something that turns the entire mediation in a positive, constructive direction. So, always hold the thought that resolution is possible. Hopefully then, people at your mediation table will catch your infectious commitment, and walk away having learned something positive about themselves and the conflict, even if a mutually beneficial agreement isn’t reached. Therese White has been an independent, non-attorney mediator and organizational conflict consultant since 1992. Her specialty is in rescuing emotionally charged, diversityimpacted employment disputes. Among the panels on which Therese serves are the American Arbitration Association’s National Registry of Mediators, the EEOC, the U.S. Postal Service, the U.S. Transportation Security Administration, and the Los Angeles County Bar Association Attorney-Client Fee Dispute. She has also trained hundreds of attorneys, corporate and community leaders, and their staffs in the mediation process and workplace conflict management. Therese can be reached at theresewhite@yahoo.com.
This article was adapted from Chapter 45, Managing Client Emotions: How a Mediator Can Help, L. Therese and Bill White in the American Arbitration Association’s Handbook On Mediation, 2nd Ed, 2010.
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Lee Jay Berman
Mediation impasse: Reality or fallacy? Mediators are hired to settle cases, so impasse is a bad word if not an outright fallacy It happened again. You drove with your client to the mediator’s offices, you spent 10 hours in a mediation session− often waiting for long stretches for the mediator to return from the other room, your client went through the entire range of emotions during the day, and gave and gave until they had reached beyond any “bottom line” the two of you had established, and still the case didn’t settle. Now you have that long, tedious drive back to the office with a client who is frustrated, disappointed, wrung out, maybe even angry. During the silence you know that somehow your client is blaming you. You selected the mediator, who was disappointing at best. You had the client’s hopes up that today would be the day the case would settle, and they could begin to move forward. You 72 — The Advocate Magazine
SEPTEMBER 2014
managed the negotiation all day. Your client is unhappy, and you can’t escape being held at least partially responsible. Every lawyer knows that feeling and has had that drive. Every lawyer has hesitated before picking up the phone to call the client in the next day or two, knowing that it just doesn’t reflect well on you, no matter how you spin it. Even if there was nothing more you could have done. It’s almost worse than losing at trial because at least there you can say that the judge or jury didn’t understand the case or had some other flaw, but here, it was in your hands, you had control, and your client spent the whole day compromising, and that still wasn’t enough. This is a feeling you should not have to have. And the sad thing is that most
days, this is unnecessary. You are suffering in vain.
The impasse
Twenty years as a mediator has taught me that most cases can be resolved, and many more than actually do. When everyone at the table thinks there is an impasse, more often than not, it was something that could have been, and should have been avoided, and that responsibility falls to the mediator. I often wonder who invented the concept of impasse. Who first said, “We are stuck. We cannot go any further.”? Who decided that we should give it a name, acknowledge its existence, and make it the scapegoat for all that goes wrong with a mediation or negotiation?
Impasse continues
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The Advocate Magazine — 73
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Impasse — continued
My guess is that it was the first mediator who had run out of tools. With imagination exhausted, someone threw his hands into the air and declared the negotiation over and decided it was time to send everyone home, declaring an impasse and deeming the mediation process, not just the session, to have failed. For negotiators to declare an impasse can make sense. The goal in negotiation is to win, so the threat of impasse can sometimes be an effective tactic in achieving that goal, especially in cases where one party needs it to resolve worse than the other. Commercial mediators, however, are hired to settle cases. In this world, impasse is a bad word. Moreover, I believe it is a fallacy. Achieving resolution, by definition, means either avoiding or breaking impasse. If an impasse can be broken, then
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SEPTEMBER 2014
advocates to the neutrals – participating in mediations in those settings have also made us all lazy. If we look in the mirror, we all know we could do a better job at researching neutrals, preparing, and in conducting the process. This too goes for advocates and neutrals alike. But at the end of the day, it is the mediator’s job to make a mediation successful. If a mediator’s success can be defined by a successful outcome (which may oversimplify the entirety of the mediator’s role, but ultimately is the primary goal in commercial mediation), then the mediator is responsible for managing every step of the process with an eye toward anticipating and avoiding the potential for any possible impasse during the mediation. Here, we will break the process down into five stages, and look at what a good mediator must do, and what a good attorney can do, to forge better outcomes in mediation, and have fewer of those long drives home with a less-thansatisfied client.
Convening
Defining convening as everything that happens in advance of the day of the mediation, then it is surprising how many potential causes of impasse can be avoided by doing things right during this stage. Impasse often occurs because the right people are not in the room. Good mediators initiate pre-mediation phone calls with counsel – together or individually – and even sometimes with clients and adjusters, if counsel recommends it. On these calls, it is the mediator’s job to figure out the nature of the case, and ask who should be in the room, what discovery needs to be completed or what information needs to be exchanged, when the timing will be right to mediate, and how the case should be briefed. These calls can be done before briefing, to arrange for all of the above, and/or after briefing, for the mediator to drill down into specific issues and ask counsel to investigate or clarify issues or damages in advance of the mediation. Good mediators ask a lot
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of questions and are not afraid to push to better understand all of the dynamics of the negotiation. Some people, and some institutional clients, simply can’t hear information for the first time at a mediation and process it effectively on the spot and incorporate it into their valuation of the case or adopt it into ideas for creative solutions, which can lead to an impasse. Helping counsel prepare for a mediation means sharing briefs, especially in cases that are newer, where counsel need to prepare themselves and their clients for the other side’s theories, damage calculations, and reasoning. This is especially important for plaintiffs’ lawyers to help prepare the insurance carrier, and to allow them to base the authority they request on the same set of facts upon which the plaintiff is basing their opinion of value. Helping the mediator prepare for a mediation means also sharing a confidential or “pocket” brief with the mediator, explaining more about the negotiation dynamics, client and counsel relationships, underlying interests driving things, insurance complexities including coverage issues, and anything else that counsel would otherwise want to whisper into the mediator’s ear during the day. Having this information in advance helps everyone prepare better and walk in the door more informed than they would otherwise be. Mediators also need to ask for the negotiation history in advance. Few things are more embarrassing to a mediator than bringing the third offer from one room into another, only to hear, “Finally, they’re back to where they were three weeks ago when we tried to settle this!” Another line that mediators often hear is, “I may be able to get more authority, but my adjuster (or supervisor) is on the east coast and has gone for the day.” This is something that needs to be discovered during convening. Good mediators ask questions in advance about authority and understand as much as possible about which specific individuals need to be involved in the ultimate settlement of a case. Phone arrangements (desk and mobile phone) need to be 76 — The Advocate Magazine
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made (negotiated) for any decision makers who will not be in attendance. It is a mistake to wait until 5:00 p.m. on the day of the mediation to try to make these arrangements. These are impasses that need to be avoided. And defense counsel need to understand the reason why mediators are asking and cooperate with them in making these arrangements during the convening stage. Mediations can sometimes end abruptly when one participant has a time constraint. This can sound like, “It’s 3:30 and I have to pick up my kids” or “I never thought it would last this long.” This can be avoided by the mediator reaching agreement with the parties on time expectations and availability. Good mediators ensure themselves an ample window of time, and manage the parties’ expectations so that they do the same. Good mediators are the first to arrive and the last to leave, but if they don’t manage people’s expectations around time availability in advance, everyone can leave frustrated.
Preparation
Preparation is critical to avoiding impasse, but in addition to the mediator, the lawyers and the parties must all be adequately prepared in order to reach a settlement. Each person needs to know enough about the case so that they can analyze settlement proposals and make informed decisions. Failure to prepare, and failure by the mediator to attempt to ensure that the participants do their preparation, leads to an impasse that ends with, “We just don’t know enough” or “we need to do more discovery.” Good mediators do more on a premediation call than set the time and date,
they dig into the specifics of the case, using their experience to guide them to asking good, probing questions about what additional information each participant will need in order to make a final decision and reach closure at the mediation. Of course, this level of preparedness varies greatly from the discovery necessary to prepare for arbitration or trial. Should an informational impasse occur despite the mediator’s best efforts, it is also part of the commercial mediator’s role to help the parties stay on a settlement track, focusing their efforts and their laser-beamed discovery on preparing for a return to mediation. Sometimes this means a little bit of extra, key-written discovery. Other times it means another deposition or two to help figure out what key witnesses or experts will say. But too often, mediators can allow counsel to leave with the idea that the mediation process has failed, leaving them headed back to the litigation preparation track. Good mediators take the time at the end of a “not settled yet” mediation to discuss jointly with counsel exactly what additional information is needed, the most efficient way to obtain it, and the time frame necessary to do so. Then, taking into account the time necessary for insurance claims management and others to review and take this new information into account, this process should ultimately culminate in a return to mediation date that everyone calendars right then and there. The mediator’s role never changes, regardless of what stands in the way of agreement. The mediator simply continues to facilitate agreement between the parties with an eye toward eventual settlement. Most so-called impasses are really just the next problem to be solved.
Communication
Impasses that simply cannot be pinpointed often occur due to a failure during the communication stage. Simply stated, the mediator may not have discovered or addressed a party’s underlying interests. When parties have underlying interests or emotional barriers to
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The Advocate Magazine — 77
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Impasse — continued settlement, it is common for them not to know what is keeping them from settling. Impasses that result from emotions or unmet underlying interests sound like, “I just don’t know. I just know it’s not enough.” or “I just don’t understand why I need to pay that much.” A good mediator knows that this can be the cue to revisit the underlying interests and the emotional resistance – the feelings that are keeping one person from reconciling themselves with the difficult decision that needs to be made. These feelings can be as straightforward as greed, revenge or ill feelings toward or about the other person or the event. But they can also be more subtle and complex, such as unwillingness to let go of a conflict and move on with life, unwillingness to let go of a relationship – such as it is – with the other person, or feeling that they are not being made whole for the pain or suffering they experienced (i.e., no amount of money can make them whole or restore what has been lost). These feelings need to be uncovered and addressed by the mediator early in the mediation and dealt with then, in order to avoid them getting in the way of a settlement in the later, more stressful stages. Most people attach emotions to conflict and need to reconcile themselves with letting go of those emotions before they can resolve the dispute. Stated simply, readiness to settle can mean really different things for counsel than it does for clients. Another emotional objection to settlement can be inexperienced participants (and even counsel) who fall in love with their cases. The best analogy is when a person sells their home. They love their home and think it is worth a lot of money because they believe it to be special and unique. However, they have to sell it in a marketplace that is well established, and sets its value based on how it compares to other, similar houses. And, it rarely compares as favorably in an objective marketplace as the owner thinks it should. Enter the realtor, who is supposed to give the seller a more objective opinion of value, but who has the incentive to
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stretch the valuation more toward the seller’s in order to win the competition to list the house and have a happy seller, and ensure that the seller knows that the realtor is on his or her side. However, in the end, the actual value of the house is only that which a buyer will actually pay for it in a market where there are other comparable houses available. Lawyers and clients who fall in love with their cases, and who lose the ability to see them through objective eyes have to be reminded of the context in which they are attempting to place a value on the case. The context is an informed marketplace where most cases can be measured objectively, and where comparable cases can anchor their value to a norm which theoretically reflects a value based upon what a judge or jury would do, and what risks there might be at trial. Most mediators can talk about the risks at trial, point out the weak points in a case, and discuss costs of litigation, but a good mediator must also ground everyone in reality by bringing a fresh perspective and experience with the objective marketplace in which this negotiation is occurring. Finally, underlying interests can often be non-emotional. For example, they can relate to finances or other, more tangible issues. Answers to these concerns, once uncovered, can sometimes take the form of payment terms or structured settlements. The most common indicator here is when a plaintiff anchors their settlement expectation to something having nothing to do with the case itself, such as their debt, their mortgage, or some other external factor. The mediation process can become very flexible and creative, making most impasses a fallacy, but only once the parties’ real interests are uncovered. However, creativity in mediation works best when it is purposeful and in direct response to a party revealing an underlying interest.
Negotiation
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impasse here is that the mediator played too passive a role in the negotiation process. Mediators need to act as orchestra conductor here, bringing up the strings and down the percussion and keeping everyone together in the same rhythm as best they can. Too many mediators cast themselves as observers in the negotiations, demonstrating no skills, expertise or finesse in helping to keep the negotiation moving in the way it needs to in order to reach a settlement. The first thing that seasoned mediators know is that the negotiation stage of the mediation begins during the convening stage, as we negotiate together who will attend, when and where the mediation will be held, and what authority will be needed in the room to bring about a complete settlement, and the negotiation continues until agreement is signed. Experienced mediators understand that every demand by counsel, even as early as the convening stage, is part of their negotiation strategy. Another negotiation challenge is the mediator buying into the bluff. When one party says, “That is our bottom line,” what they often mean is that they have not yet been convinced, or given enough information, to change that final position. That statement is heard by the seasoned mediator as, “Knowing what I know now, about the case and about the other parties, I am not willing to move from this position.” It might also simply be a negotiation tactic to attempt to scare their opponent. What can be learned from this perspective is that a “bottom line” is usually just another strategy in the negotiation process. This is not to say that people are not being truthful when they announce a bottom line. Sometimes they are. This is not to say that mediators should not believe people when they say that a particular number is a bottom line or best and final offer. The seasoned mediator knows that this means that this is how they are evaluating the case under the present circumstances as they see them. The key to working through this barrier is to help them see things a different way.
Knowing that this bottom line objection may occur is what occasionally prompts some experienced mediators to keep a key case fact or mediator observation in their back pocket. Holding back a useful piece of information in anticipation of such a moment can help everyone. It is a fact that people don’t change their minds, but given new information, they are free to make a new decision. This is another way of allowing people to save face and back down from that “final offer” statement by helping them have a legitimate reason to move a little further. While everyone in the room may be responsible for knowing, understanding and discussing the facets of the case (facts, law, cases, legal climate, and settlement marketplace), there is only one person in the room who is responsible for the big picture. That is the mediator. The reason that the mediator is in sole charge of this is simple: psychologists would say that the other participants are in a state of conflict. When people’s amygdala gets triggered, it literally reroutes brain function from the logical, rational part of the brain into the part that processes emotions. It puts people into fight or flight mode. When people are embroiled in a conflict, their stress level is high and that can put blinders on them, often without them realizing it, seeing nothing but the conflict. They can lose their peripheral vision which would otherwise allow them to see how this litigation or conflict fits into their everyday lives, their time, their budget, and their stress level. In days of old, attorneys were removed enough to give their clients this perspective. Today, some still are. But today’s legal marketplace can demand that attorneys become just as embroiled in the case as their clients are. What some lawyers gain in intimate knowledge, passion and advocacy effectiveness, they can lose in their ability to remain detached and to see the big picture. The mediator is hired to be the one who is not in a state of conflict, and who is charged with remaining clear and mindful of the big picture, and helping the participants remain that way
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throughout the negotiation. Some mediators call it “going to the balcony.” I think one needs a larger perspective than that. A good mediator needs the ability to see the big picture of the case, the negotiation, and the big picture of the parties’ lives and how this case impacts them, their families and their businesses. Injecting this perspective is one way that a case can be made to look different, and bring more of reality into the negotiation. The key to the mediator helping the parties avoid most negotiating impasses is for the mediator to see them coming. This is the other reason it is critical for the mediator to have a perspective of the negotiation that more resembles that of a helicopter at 5,000 feet. If the negotiation steps by each party are not going to lead to a point of intersection or agreement, the mediator has to see this by the third or fourth move and help to choreograph the negotiation to foresee the potential for impasse and avoid it well in advance. Mediators can only do this if they understand the science of the math in a negotiation. Each number telegraphs a message. Your mediator should be carrying more than just a number from one caucus room to the other. I call that a naked offer, when it’s not draped in the context, the meaning, or the explanation that is vital to its complete understanding. Too many mediators leave participants guessing what a number means, and given the conflict they are in, can tend to paint it with the worst of intention and with the most skeptical eye, unless the mediator brings a different message to accompany it. Additionally, there is still much more going on in the mediator’s mind – namely calculating whether the parties are on track to get to an agreement. The mediator must have his or her eye on the finish line at every moment of the process. That finish line, of course, is an agreement containing all parties’ signatures. Remember, the deal is not done when there is agreement on a number. The negotiation must include all of the settlement terms, including payment terms, 82 — The Advocate Magazine
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confidentiality (if applicable), release language, and other terms that are important to the parties, in addition to the standard California Civil Code section 1542 waiver and Code of Civil Procedure section 664.6 for enforcement. This requires the mediator to be multi-tasking. Your mediator must be simultaneously at ground level, toe to toe with the parties, being compassionate and a good listener and discussing specifics about the case, while also stepping back metaphorically to question whether the present conversation is going to help everyone get to the finish line, and then rising up higher yet to lift high above the conflict to see the big picture of the negotiation strategies the participants are employing. The mediator must be calculating and extrapolating the progress of the negotiation numbers, as well as understanding the impact of the non-economic terms that need to be discussed, when to introduce those terms into the negotiation, and what impact they will have. The mediator must also be mindful of each parties’ big picture – their real life and the rest of their business outside of this case, and when to bring those perspectives into the conversation. Another negotiation impasse that can occur is one I call “looking sideways.” This occurs when participants in a multiparty mediation are paying more attention to what another party is getting, or paying, than whether an offer is in their own best interest. This frequently occurs when there are multiple parties on one side of the table – either multiple plaintiffs who will divide a settlement in some fashion, or multiple defendants, such as in construction defect and product liability claims where there can be dozens of defendants contributing to a global settlement. In this instance, one co-defendant will stake out a position that is completely dependent on another co-defendant’s offer. For example, one subcontractor will say, “I will pay whatever so-and-so pays, but not a penny more.” Or one co-plaintiff will object to a global settlement offer from the defendant(s) because they don’t like the distribution of the settlement
fund. This isn’t a cause for impasse either, it’s just the next challenge that needs addressing. It means that someone has a need that has to be met and considered before an agreement can work for everyone. Looking sideways can also describe when a defendant becomes more concerned with the windfall to a plaintiff, rather than whether the settlement makes economic sense for them. This can sometimes be remedied by including non-economic terms or by paying part of a settlement to a third party, such as a non-profit organization. When parties are looking sideways, instead of at their own best interest, the mediator has to use an “above the fray” perspective to help that party keep their eye on the ball and decide whether their individual share results in a fair settlement to them, without regard for what others are doing. For example, if a case is settling for a global settlement of $300,000, and one plaintiff feels like he deserves more than an equal division of those funds, the mediator’s question to them, keeping the big picture in mind, is whether they are satisfied with their settlement amount when compared to their expectations coming into the mediation, or perhaps whether they’re satisfied with their settlement amount as a percentage of the whole, rather than compared to each other co-plaintiff. One last approach is to ask them what they’re going to do with the settlement money when the case is done, turning their focus to spending the actual, tangible money, rather than quibbling over abstract numbers as though it was Monopoly game money. These approaches may make their individual settlement amounts seem fair and relevant to them, allowing them to explain it to others (spouses, parents, adult children, etc.), if that is necessary.
SP
The agreement
Threat of impasse can also come about when the parties are writing the terms of the settlement agreement. One reason to be sure to write a settlement
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agreement at the end of the mediation, even over the parties’ predictable resistance after hours of difficult negotiation, is because the exercise of writing the agreement forces the attorneys and mediator to focus on the details of the agreement, which can often be overlooked during the negotiation stage. If a mediator has not inquired in advance about potential deal points such as confidentiality, payment terms, release language and who will be released, then this exercise can be like a ticking time bomb. Too often, deals blow up at the end where all parties think that they have reached agreement, only to find out once they are tired and anxious to be done, there is a problem with a deal term. Problems at this stage of the mediation are generally met with rock-solid positions, ultimatums, and emotional parties ready to walk away from the pending agreement unless they get their way, or “win,” on this newly raised term. This is a logical result of a compromise process where each party lays out their case and their position in the morning or in advance of the mediation, and then spends the entire mediation stepping back from that position, and then being asked to step back even more in each
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round. Experienced mediators have seen parties ready to walk away from a hard fought, yet fragile settlement over disagreement on issues such as the number of days until payment will be made. Emotions run high at this stage in the process, and the mediator owes it to the parties to anticipate this and gently raise and negotiate these deal points along the way, when the parties are still in the middle stages of their negotiation, and there is still a willingness to give-and-take. In short, if a mediator can anticipate common causes for impasse, such as these, the mediator can help the parties to avoid the potential for impasse all together, and find their way directly to a successful resolution. Finally, if it sounds like the author has all of the answers to avoiding impasse and settling cases, the fact is that even this mediator only settled 92 percent of the cases he mediated last year. And all of this learning comes from mediating more than 1,800 cases over 20 years, and making every one of these mistakes – many more than once. Learning, of course, comes from making mistakes and looking back to see, with the benefit of hindsight, what caused it and how to avoid it the next time.
Mediators learn by experience – by their time in the chair at the head of the table. And hopefully by reading articles that help them avoid such problems by knowing in advance where to look for these bumps in the road. Hopefully, readers will remember the next time they are staring at a situation that looks like a potential impasse, that what they are looking at is more likely just a signpost that they are simply not finished yet, and that there is more work to do. This just means that it is time to dig down deeper into their toolbox and find the right tool, because most impasses really are a fallacy. Lee Jay Berman is a mediator based in Century City. He is a Distinguished Fellow with the International Academy of Mediators, a Diplomat and board member with the National Academy of Distinguished Neutrals and nominated by his peers to the Who’s Who of International Commercial Mediation in 2012, 2013 and 2014. He has published numerous articles on mediation, negotiation and ADR, and is contracted to write two upcoming books for the ABA. He can be reached at atleejay@mediationtools.com. Visit http://aiminst.com/ljbpma for more information.
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About this Issue Joan B. Kessler Associate Editor
Pre-litigation mediation a signal of weakness or a sign of strength? A look at the reasons to mediate earlier in the civil dispute process Recently, I have been asked to mediate various cases before lawsuits are filed. In order for a mediation of any type to be successful, both sides must want to mediate the issues between the parties. Why and when might counsel encourage this process? Is it a sign of weakness or is it really a sign of strength? Who might benefit from such a process? When might such a process be valuable? Is it a creative strategy? This article explores these issues and concludes that early mediation may be the creative strategy. 88 — The Advocate Magazine
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Why do pre-litigation mediation?
There are various reasons to do a mediation before suit is filed. First, some contracts require mediation before arbitration or before filing a lawsuit to collect prevailing party attorney fees. For instance, the California Association of Realtors (CAR) for California Residential Purchase Agreements require mediation before filing an arbitration in order, in most cases, to collect prevailing party fees in an arbitration or court action.
There are other similar provisions in other industry agreements such as some stock agreements. There are other reasons to conduct pre-litigation mediations other than to collect fees. One is that arbitration tribunals and judges and juries are uncertain at best. Many times it is like Las Vegas going to arbitration or to trial. There are no certainties. Also, litigation can be very emotionally draining on plaintiffs, especially in
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very emotional cases. Additionally, as litigation goes on, the relationship between the parties may deteriorate even further. Further, the dispute may become more complex as litigation goes on and the disputes escalate. Of course, one of the most compelling reasons for early mediation is the expense in hotly litigated matters. Time away from jobs and family may be yet another justification and motivation for pre-litigation mediation. Many times in a mediation I will encourage settlement if the deal works when I see the emotional and sometimes physical toll that prolonged litigation has on family relationships and its impact on the litigant’s life in general. While many of the pro bono or party pay state-court panels have fallen by the way of budget cuts, the U.S. District Court in the Central District of California still provides a three-hour free panel to hold court-ordered mediations. This is after the case is already filed but many times mediation is ordered early in a case by the district judge. Of course, counsel may always request an early mediation and may take the initiative to have all sides stipulate to a panel mediator in Central District. All in all, there is a move to mediate early in the process. Even the American Bar Association Section of Dispute Resolution has gotten involved with the Planned Early Dispute Resolution (PEDR) Task Force to do early mediations. This program is to help promote the idea of PEDR to lawyers and clients and to help utilize neutrals at the earliest possible time. (See www.americanbar.org/ groups/dispute_resolution/resources/ planned_early_dispute_resolution _pedr.html). Another area where early mediation is helpful is in the Family Law arena. In dissolution actions or even before the action is filed, mediation may be helpful in deescalating the conflict, keeping costs down, preventing even more emotions to heat up and to speeding the process along. Similarly, many times business disputes are like a divorce, but in a business 90 — The Advocate Magazine
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context. In partnership disputes or shareholder disputes, an early mediation and especially a pre-litigation neutral intervention may actually save a business relationship.
How to prepare for pre-litigation or early mediation
The first step in pre-ligation mediation is to verify that both or all parties and counsel are willing to pursue an early resolution to the dispute. Rather than being a sign of weakness, a well drafted demand from Plaintiff/Claimant may be a strong creative strategy. Showing defendant a real downside risk may encourage early neutral involvement. Likewise, a defendant who receives a demand letter may show good business judgment by having counsel request an early mediation to save costs and stress of lengthy litigation. A detailed demand letter may be a key to an early resolution. This demand concept is particularly valuable in the employment-law area. In cases where the alleged wrongdoing may involve individuals who are high up in an organization and claimant’s counsel has done the research, a pre-litigation demand may yield a good client result. This is, of course, if there are no statute-of-limitation issues requiring administrative proceedings and/or litigation or arbitration action immediately. However, if time is on claimant’s side, a well thought out, well crafted demand with factual statements and even detailed legal analysis may help the client avoid the prolonged stress of litigation dispute escalation and yield an early influx of settlement funds.
Benefits to plaintiff in doing a pre-litigation mediation
• Avoids prolonged, potentially emotionally draining depositions and delays • Shortens the time to recovery of settlement funds • Allows plaintiff to move forward with their lives sooner • Gives certainty of result • Maintains confidentiality
Benefits to defense in doing a pre-litigation mediation • Avoids disruption to the company • Helps keep the dispute confidential in what could be an embarrassing situation (especially in employment) • Reduces large litigation costs • Keeps insurance rates from escalating from litigation exposure • Gives certainty and finality
When is the best time to commence a pre-litigation mediation?
Usually, if informal discovery is possible, then mediation might be timely before costly discovery and depositions take place. In other cases, there are key depositions that must take place first for a resolution to be possible from a mediation. In some cases, it is not until the eve of a summary judgment motion when mediation is timely. In high profile employment and entertainment cases, earlier the better may be the strategy.
Conclusion
Sometimes, pre-litigation mediation or early mediation just are not an option. The other side will not agree, the risks to either side are not clear yet, discovery needs to be taken. But, where the time is right, the benefits to all may make prelitigation mediation the creative strategy. Joan Kessler, a full-time mediator and arbitrator, received her Ph.D. in Communication before she attended law school. She was a jury consultant, Communications Professor and has practiced law for over 25 years. She specializes in employment, real estate, trust/estate, business, commercial, entertainment, and insurance cases. Ms. Kessler may be reached at: jkessler@kesslerandkessler.com. Ms. Kessler is on the American Arbitration Association panel of arbitrators and mediators, the United States District Court panel of mediators and she mediates and arbitrates matters independently. She recently partnered with DecisionQuest and American Arbitration Association on developing CaseXplorer Arbitration as an online assessment mechanism in arbitrations. Her Website is www.joanbkessler.com.
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BECAUSE NOT EVERY CASE IS A MASS TORT CASE We litigate complex cases one at a time Many “mass tort” law firms don’t accept referrals of “one-off ” cases involving pharmaceuticals, medical devices, dietary supplements, or childhood sexual abuse. That’s where we come in.
B ECAUSE NOT Experience matters EVERY CASE IS A MASS TORT CASE
Partners Thomas Moore and Ronald Labriola have a combined 50 years of experience litigating health care products liability cases. Our lawyers have successfully confronted all of the most difficult issues in these types of cases, including FDA preemption, drug/supplement regulations, complex medical causation, defense discovery abuses, and insurance coverage disputes. We also have represented victims of childhood sexual abuse in many high profile cases, including over 100 current plaintiffs against the Los Angeles Unified School District.
Results speak volumes In the past four years alone, we have had an eight-figure settlement and multiple seven-figure recoveries, including the largest known settlement of a dietary supplement personal injury claim.
We reward collaboration We accept direct referrals as well as co-counseling arrangements. We’ve gladly paid eight-figures in referral fees to our partners.
The Senators Firm was co-founded by former state senators Joe Dunn and Martha Escutia
www.thesenatorsfirm.com 866.899.1962 1 9 1 0 0 V O N KA R M A N AV E , S U I T E 8 5 0 , I R V I N E , C A 9 2 6 1 2
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Deborah Crandall Saxe
Finding a mediator goes digital Web sites and search engines you will find useful in selecting a specialized or more skilled mediator It can be difficult to find just the right mediator. Historically, people have found mediators by trial and error and word of mouth. Those methods undoubtedly will persist because they often work. But they may be inadequate if you need a mediator for a type of case that is different from the kind you usually handle or if you want someone new, more specialized, or more skilled. In that circumstance, you may want to turn to the Web to find a mediator. Obviously, you can find mediators by using popular search engines such as Google and Yahoo. For instance, you can find an employment mediator in Los Angeles by using Google to search for “mediator employment Los Angeles.” You may, however, find that mediation92 — The Advocate Magazine
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specific Web sites offer better, faster tools for locating the right mediator for your case.
Professional associations
The National Academy of Distinguished Neutrals The National Academy of Distinguished Neutrals (the “Academy”) is a professional association whose membership consists (according to its Web site) of attorneys distinguished by their hands-on experience in the field of civil and commercial conflict resolution and their commitment to methods of alternative dispute resolution. NADN maintains a Web site (nadn.org) with a “Neutral Search” function that allows users to find a mediator who is a member of the
Academy and has expertise in a particular field, such as employment, real estate, or personal injury. Members of the Academy have been vetted by the Academy. The California Academy of Distinguished Neutrals The California Academy of Distinguished Neutrals (the “California Academy”) is a chapter of the Academy. It provides a “Quick Search” function that allows users to find a member of the Academy who mediates particular kinds of disputes in Northern California, Southern California, or in a particular California County. The result is a list of mediators with links to their online profiles, which have links to printable
Digital continues
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resumes and client testimonials. Some members of the California Academy post their calendars on this site so the user can determine their availability. The Southern California Mediation Association The Southern California Mediation Association (“SCMA”) is a professional organization that provides opportunities for mediators to enhance their skills, knowledge, and professional practices. Its Web site, scmediation.org, has a “Select A Mediator” function. Those listed in the SCMA’s “Select A Mediator” Directory must have taken at least a 40hour course in mediation, or the equivalent, or must now be, or have previously been a member of a recognized court
mediation panel. The “Select A Mediator” tool allows a search for, e.g., an “employment” mediator within 10, 20, 30, 40, 50, or 50+ miles of a particular zip code. The search results consist of photos, addresses, telephone numbers, and a list of specialty areas (such as “employment”) for each identified mediator. There also is a link to the profile the mediator has placed on the SCMA Web site and a link to a map showing the location of the mediator’s office. SCMA has a Reduced Rate Program for cases in which the parties certify that the amount in controversy is $25,000 or less, or in which at least one of the parties is not represented by counsel. Mediators participating in this program
agree to charge half their usual rates for mediations or, in the alternative, to provide the first two hours of service free of charge. The “Select A Mediator” function permits a search for mediators who have agreed to participate in this program. The International Academy of Mediators The International Academy of Mediators (“IAM”) is an invitation-only organization. According to its Web site (iamed.org), its mediators are “the most successful and highly trained professional mediators in the world.” Its Web site does not have a find-a-mediator function. However, if you identify a mediator using one of the other online sources listed in this article, you then can go to iamed.org to use its “Locate A Member” function, enter his or her name, and find out if he/she is a member of the IAM.
Mediation services providers
Employment Litigation Statistical Analysis & Survey Research Personal Injury & Wrongful Death Loss Analysis Asbestos Litigation Class Action Litigation Lost Profits & Commercial Damages Credit & Finance-related Issues Wrongful Termination & Discrimination Data Analysis
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Your Expert Solution 94 — The Advocate Magazine
Economics / Statistics / Finance Consultation / Research / Testimony
SEPTEMBER 2014
Another way to find mediators on the Internet is to visit the Web sites of the various mediation service providers. In Southern California, the leading mediation service providers (other than the American Arbitration Association (“AAA”)) are JAMS (jamsadr.com), Judicate West (judicatewest.com), PMA (pma-adr.com), ADR Services (adrservices.org), and Alternative Resolution Centers (arc4adr.com). JAMS, Judicate West, PMA, ADR Services, and ARC post profiles of their mediators on their Web sites. The mediators who appear on the Web sites of these service providers have been vetted by the providers. The American Arbitration Association (“AAA”) has a new division called Mediation.org, which has a Web site of the same name. If you do not know the name of the mediator you want to use, you can use the “Find A Mediator” tool at mediation.org to search for a mediator by practice area (such as “employment”) and geographical location (city and state or 10, 25, or 50 miles from a particular zip code). There also are boxes to check to limit the search to mediators who are judges, to mediators who handle large complex cases, to
Digital continues
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The defense has an appellate department. Now, so do you. “When defense counsel threatens to appeal, just tell them you have to review the matter with your appellate department. Then call me.”
Steven B. Stevens
Certified Specialist in Appellate Law, State Bar of California Board of Legal Specialization CAALA Appellate Lawyer of the Year (2001) 28 Years as Plaintiff ’s Counsel “Steven is not only one of the finest researchers and writers, he has tried a dozen cases himself, so he understands the problems of busy trial lawyers. He gets it and gets results.” M. Lawrence Lallande, Sr.
“Steven has been a leader in reforming the law of Medi-Cal lien reimbursement. He has obtained consistent and substantial lien reductions for us.” Bruce Brusavich, Agnew & Brusavich
“Steve has done our appellate and motion work for a decade. His batting average is well over 900.”
“Steven knows how to persuade trial judges to significantly reduce Medi-Cal lien claims. He was the appellate lawyer whose cases changed the reimbursement law to benefit injured plaintiffs.” John P. Blumberg
Associate ABOTA ATLA “Top 100 Trial Lawyers”
Phil Michels, Law Offices of Michels & Lew CAALA Trial Lawyer of the Year (2003) Member ABOTA
CAALA Trial Lawyer of the Year (1992) Diplomate of ABOTA
ABOTA Advocate Certified Specialist in Medical & Legal Malpractice, ABPLA
Medical malpractice, catastrophic personal injury, insurance bad faith, employment, Medi-Cal lien resolution and general civil litigation Certified Specialist in Medical Professional Liability Law, American Board of Professional Liability Attorneys CAALA Board of Governors / CAOC Amicus Curiae Committee Admitted to practice in California, the Ninth Circuit and the U.S. Supreme Court Hourly, Contingency and Flat Fees available
Appeals • Writs • Law & Motion
Steven B. Stevens 310-474-3474
SBStevens@TheStevensFirm.com SEPTEMBER 2014
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Facilitating Practical Solutions to the Most Challenging Problems Digital — continued
MEDIATION WITH GARY FIELDS personal injury | complex litigation | real estate construction defect and accident | professional liability product liability | business | employment | insurance
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Mediate.com and mediation.com
Mediate.com and mediation.com exist for the sole purpose of providing online search tools to find a mediator. Neither one provides administrative services for mediations and neither one vets the mediators it lists. However, many of the mediators who choose to be listed there are extremely well-qualified and have been vetted by other organizations. At mediate.com, you can search for a mediator by type of matter (e.g., “employment”), city, state, and/or area code. When the results have been displayed, you will find links to the mediators’ Web sites and the ability to check boxes for up to 10 acceptable mediators to propose to the other party. Mediation.com also provides a search function. Deborah Crandall Saxe is a full-time neutral specializing in employment law matters. She is a member of the employment mediation and arbitration panels at the AAA and is a member of the master mediator panel at ARC (Alternative Resolution Centers). Before becoming a full-time neutral, Ms. Saxe practiced labor and employment law at international law firms for more than 30 years. She received her J.D. from the UCLA School of Law. www.Deborahsaxe.com.
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mediators who speak particular languages, or to mediators with hourly billing rates of less than $150, $150 to $250, $250 to $350, $350 to $500, or more than $500. Like other mediation services providers, Mediation.org manages mediations in return for an administrative fee. The mediators who can be found at mediation.org are members of the AAA’s various mediation panels and other mediators who have subscribed to have their names, contact information, and profiles listed there. Those that are on an AAA mediation panel, and therefore have been vetted by the AAA, are easily identified.
CA License No. 0D75747
IsupportMICRAReform 96 — The Advocate Magazine
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Book Review By Donna Bader
Law andBook Motion Deskbook Trilogy
Reviewand easy to use. Quick to read No historyDonna or Bader long discussion, but lots of practical forms Opposing California Civil Motions The Rutter Group Civil Litigation Series www.legalsolutions.thomsonreuters.com $187 includes loose-leaf volume and CD-ROM. Okay, admit it: When you prepare a brief, you want it to be a masterpiece. You want every sentence to be unique. Your secret fantasy is that the judges are shocked by the quality of your work, so much so that they put down all their work, call a conference of research attorneys, even other judges, to share your work of art and eloquent words. The judge holds up your motion or opposition and announces to the group, “This is how a motion (or opposition) should be prepared!”
Time is of the essence Let me pinch you now and bring you back to reality. The first problem you face is time. You can’t spend hours poring over a law and motion document until your words are perfect. Your client doesn’t want to be charged for all the time that it is required to produce a masterpiece. Your client will not be pleased with your bill or your explanation as to why you had to charge for such perfection. After all, the facts are the facts, and the law is the law, so only so much can be done. The second problem you face is that the judge lacks time as well. Most judges are overworked and just don’t want to spend the time savoring your words. They have a job to do. And too many cases to process. Yours is just one of many. I learned that lesson years ago when I worked as a research attorney. I had every intention of reading every single word in a law and motion paper. I had previously written motions, giving the 98 — The Advocate Magazine
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history of statutes, current trends, and other developments. What a waste of time! I learned my lesson. Been there, done that. After all, does anyone need to spend more time on contemplating the theory of liberally construing a pleading or modern trends in reviewing summary judgment motions?
Do not reinvent the wheel
What you need to do in your documents is say it well and say it fast, especially if you are preparing a motion that has been done over and over again. You are not reinventing the wheel. Save that for trial. We all cut and paste. I dare you to deny it. But why rely on borrowing other’s work when you can rely on The Rutter Group’s Civil Litigation Series, which includes California Law and Motion Authorities for Civil Cases and California Law and Motion MODEL FORMS, which have been providing forms and citations for well over 10 years. The book is updated annually, so each year you can obtain a fresh new set of citations. There are thousands of citations to choose from and more motions than you will ever encounter in your practice from the start of a case to its finish. To complement their earlier volumes, authors David N. Finley and Douglas R. Parker have recently published the final set in their trilogy, Opposing California Civil Motions – Model Opposition Briefs, which deals with opposing the motions contained in the first volume. Here’s how it works: Let’s say you have reviewed a new complaint and determined it is barred by the statute of limitations. That should be fairly easy. The judge can look at the complaint, and in particular, the charging allegations dealing with dates, and then you look at the law. If the proper law is applied to
the facts alleged in the complaint, you win. End of story.
It’s all on disk
You pull out your copy of California Law and Motion Authorities for Civil Cases and California Law and Motion MODEL FORMS and create the forms you need. Notice of hearing? Right there in the book and on disk. Just fill it in with your information. Okay, you’re done with that. Now you need the demurrer. If you use these books, it should take a few minutes. You have the form on a disk, and you know your grounds for demurrer. Next. Now you want to build a Memorandum of Points and Authorities. While you will have to personalize the memo with a statement of facts, everything else is on disk. What points do you want to raise? Grounds? Proper timing? The judge’s role in reviewing a demurrer? All there. You point out the applicable statute of limitations and the filing date of the complaint. Now you have tied it into a neat little package, with a bow on top. Could take as much as 15 minutes and six pages. For every motion, there is an opposition. Opposing parties deserve a little help, and now that help has arrived with their recent book, Opposing California Civil Motions – Model Opposition Briefs. If you are representing the opposing party, you know you have to allege facts to show the statute of limitations is tolled. Your opposition could take a few minutes to assemble as you start out with that policy of liberal construction, note the tolling provisions in the statue or case law (or both), and personalize the opposition to the extent of showing the pleading alleges facts to show a tolling and states a cause of action.
Book Review continues
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Book Review — continued
Oops, the facts are not in the pleading? Okay, now you need to ask for the right to amend. Briefly provide some authorities on the right to amend, especially on filing the initial pleading, and argue your ability to state a cause of action. That should take minutes, not hours. When you are finished, use the time you have left over to write the Great American Novel. Or just enjoy some basketball at the beach. The downside? You want to personalize the papers and that might require very specific legal research on issues not raised in these books. No problem. You can easily add in your own authorities and discussion of the facts. But at least you have a great head start.
The authors know what they are doing. David N. Finley has spent more than 20 years in litigation, legal publishing and legal education. As a litigator, he worked for Spray, Gould & Bowers’s motion and appellate department. He has published numerous legal guides and books in16 jurisdictions. Finley is also the creator and former editor-in-chief of a national voir dire newsletter, The Jury Expert. He is currently working at Chapman University Fowler School of Law, where he is the Director of Communications and an adjunct professor. Douglas R. Parker is an award-winning developer and author of legal titles for The Rutter Group. He also writes and
edits numerous articles, essays, historical digests and educational legal guides. He is the co-editor of the seven-volume California Physicians Legal Handbook (California Medical Association, 2008). Parker is a senior litigation paralegal with over 20 years of experience specializing in drafting motions, oppositions and briefs in state and federal courts. Together they have assembled a large collection of authorities and quotes. Lori L. Maze, a civil litigation attorney, is also listed as an author on the first two volumes. Maze is a Senior Research attorney at Orange County Superior Court and is currently a Juvenile Court Staff Counsel. Another plus is that even though this is a quick reference book, you can pick and choose your authorities to reflect your style. You only want very recent authorities? They are there. What about old authorities from 1930? You can find them as well. Personally, I like to sprinkle a few quotes around. Yes the authors have included plenty of quotes. Every document can be different and will have those paragraphs that reflect the facts of the case. The best part is that it should take you less time than a typical lunch break. The judges will love you. Quick and easy. No history or long discussions. That’s how they prefer it. Unless you want to work hard, bill a fortune, I recommend this trilogy to make your life – and the judge’s – easier. Donna Bader, a certified appellate specialist, has practiced for over 35 years in Orange County. She and trial attorney Jon Mitchell Jackson were recipients of a 2013 CLAY Award for litigation by California Lawyer magazine. Bader is the author of An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial, which was written to help trial attorneys protect their cases before they reach the appellate stage. www.AnAppealtoReason.com. She also served as managing editor of Plaintiff Magazine.
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Jay Cordell Horton MEDIATOR/ARBITRATOR
800.488.8805
Daily Journal Top Neutral: 2007, 2008, 2009, 2010, 2011, 2012, 2013 Complex, Multi-party Litigation Professional Negligence
DowntownLosAngeles|SanDiego|SanFrancisco|SantaAna
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From the Executive Director Steven Garcia
Consumer Attorneys Association of Los Angeles
Private enforcement of nursing home staffing mandates The tools available to the plaintiff Understaffing is uniformly viewed as one of the primary causes of violations of resident rights, inadequate care, and unsafe conditions in skilled nursing facilities. A number of studies have shown a direct causal relationship between inadequate staffing and quality of care issues that in turn lead to serious injuries to nursing home residents, including pressure sores and significant weight loss. For example, in Quality of Care in Nursing Homes: An Overview, Office of Inspector General (March 1999) the authors found that California facilities staffed at, or above, the safe staffing standard had less than half the rate of pressure sores and incontinence than facilities staffed below the safe staffing standard. Due in large part to such studies, in 2000, the California Legislature specifically recognized the relationship between staffing and quality of care at skilled nursing facilities by enacting Health and Safety Code section 1276.5, which mandates a minimum 3.2 hours of direct nursing care per patient day (“NHPPD”). However, understaffing and the resulting violations of resident rights remain rampant in the California nursing-home industry more than 13 years after Section 1276.5 was enacted, due in large part to the ineffectiveness of public enforcement of Section 1276.5 and other statutes and regulations governing the operation of skilled nursing facilities in the state. For example, in The Quality of Nursing Home Care Before and After Assembly Bill 1629, the California Department of Public Health reported to the California Legislature that 69 percent of audited skilled nursing facilities did not comply with minimal staffing requirements for the time period of 2006-2007.
Section 1430
In part to address and militate against the ineffectiveness of public enforcement of resident rights and compliance with applicable regulations, the California Legislature enacted Health & Safety Code section 1430, which provides for the private enforcement of the rights of nursing home residents. Specifically, Section 1430(b) provides that a current or former resident or patient of a skilled nursing facility may bring a private civil action against the licensee of a skilled nursing facility that violates any rights of the resident or patient as set forth in 102 — The Advocate Magazine
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the Patients Bill of Rights, or any other right provided for by federal or state law or regulation. Section 1430(b) further provides for statutory penalties of $500, for costs and attorneys fees, and for injunctive relief to curb the violations. Recent cases such as Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609, make clear that nursing home residents may bring a cause of action under Health and Safety Code section 1430(b) for violations of any of the resident rights set forth in Health and Safety Code section 1599.1, including a skilled nursing facility’s violation of the 3.2 NHPPD requirement set forth in Health & Safety Code §1276.5. One of the most noteworthy examples of private enforcement of minimum staffing laws pursuant to Section 1430(b) was the 2010 case of Lavender v. Skilled Health Group, Inc., wherein the jury awarded a $677 million verdict against a prominent skilled nursing company for violating the minimum staffing law. (Lavender et al. v. Skilled Healthcare Group, Humboldt County Superior Court Case No. DR060264.) Thus, Section 1430(b) provides a powerful and important tool for the private enforcement of resident rights and minimum staffing requirements in skilled nursing facilities, and serves to buttress the enforcement efforts of the primary state agency charged with regulating California skilled nursing facilities, the California Department of Public Health, which, like virtually every other government agency in recent years, has been saddled with extensive budgetary and staffing cuts that have served to limit the effectiveness of its enforcement efforts. But while there can be no question that the private enforcement of resident rights pursuant to Health and Safety Code section 1430(b) is an important and worthy objective, there can also be no question that its powerful private enforcement mechanisms led to a perceived abuse of the statute in recent years by private litigants and their attorneys. Central to this abuse was the seemingly ambiguous language of Section 1430(b) providing a $500 statutory penalty for a violation of resident rights. Private litigants routinely seized upon this seeming ambiguity by filing private class actions on behalf of a class of residents in the
Private Enforcement continues
A R S
A sp te ac tr de W de co as
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Boster, Kobayashi & Associates Consulting Engineers and Scientists
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An engineering firm specializing in the technical aspects of accident reconstruction, traffic engineering, highway design, and injury causation. We also handle matters dealing with safety issues in construction and industry, as well as machine design.
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Private Enforcement — continued
hopes of achieving lucrative settlements and verdicts by asserting that nursing home chains were liable for $500 per violation and/or per resident, a reading of the statute which of course led to massive potential liability exposure for nursing home chains.
Nevarrez v. San Marino Skilled Nursing and Wellness Centre
However, the California Court of Appeal recently clarified the seeming ambiguity of the language of Health and Safety Code section 1430(b) and largely put a stop to its perceived abuse in Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) 221 Cal.App.4th 102 (“Nevarrez”). In Nevarrez, the Second District concluded that the $500 maximum in section 1430, subdivision (b) applies per civil action rather than per violation. That is, the court concluded that the maximum possible statutory penalty that may be awarded in a private action alleging violations of Section 1430(b) is $500, regardless of the number of actual violations or number of residents involved in that action. (Id. at 137.) Aside from limiting the total statutory penalty that may be awarded to $500 per lawsuit as set forth in Nevarrez,
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another way that the courts can prevent or limit abuse of Health & Safety Code § 1430(b) is to be especially mindful to award attorneys fees only in an amount specifically commensurate with the results achieved in the case. As stated above, Section 1430(b) specifically provides that a plaintiff who prevails is entitled to attorneys’ fees.
Attorneys’ fees
An award of fees, of course, advances an important public policy to ensure that certain enumerated patient rights are not violated. (See, e.g., California Assn. of Health Facilities v. Dept. of Health Services (1997) 16 Cal.4th 284, 301-302; Title 22 C.C.R. § 72527(a) [“An agreement by a resident or patient of a skilled nursing facility . . . to waive his or her rights to sue pursuant to this subdivision shall be void as contrary to public policy.”]. But the prospect of a huge attorneys’ fees award can, and does, often lead to abuse of statutory schemes providing for private right of actions without the need to show an actual physical injury or “injury in fact.” While decided in another statutory context and in the
Private Enforcement continues
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MEDICAL LEGAL CONSULTING Ethics • Excellence • Experience • Quality Our expert organization & analysis are key to your successful medical verdict. Private Enforcement — continued
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context of private attorney general action, cases such as Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185, serve as important reminders that in the absence of a real public benefit achieved, a large award of attorneys’ fees will often not be warranted, and can even be considered unconscionable. Of course, in the context of actions brought under Health and Safety Code section 1430(b), attorneys’ fees are specifically provided for in the statute itself. Statutory attorneys’ fees are ordinarily determined by the court pursuant to the “lodestar� or “touchstone� method. Under this approach, a base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. (See Serrano v. Priest (1977) 20 Cal.3d 25, 48.) The court then exercises its discretion to apply a multiplier to adjust the lodestar upward or downward in order to arrive at a fee that reflects the fair market value of the service rendered, based on factors including: (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award; (5) the success achieved (including all positive results from litigation – i.e., changes in company policy, dollar value of settlement benefits); and (6) in class actions, the rate of acceptance of the benefit offered to class members (measures one aspect of overall success – i.e., the degree to which the settlement benefits were of interest to class members). (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579; Serrano v. Priest (1977) 20 Cal.3d 25, 49.) However, even with respect to statutory attorneys’ fees, the Supreme Court has not mandated “a blanket ‘lodestar only’ approach; every fee-shifting statute must be construed on its own merits ...� (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136.) In the context of class actions,
Private Enforcement continues
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Private Enforcement — continued
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courts recognize two methods for calculating attorneys’ fees in class actions: the lodestar method and the percentage of recovery method. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254.) Of course, the economic value of injunctive relief can be taken into account when determining the amount of a fee award. Ultimately, Courts should be mindful that the predicate of any attorney fee award is the necessity and usefulness of the conduct for which compensation is sought. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846.)
Summary
Thus, despite Nevarrez, when properly applied, Health and Safety Code section 1430(b) can still be a potent device to ensure that the rights of skilled nursing facility residents, including the right to live in a facility that complies with the minimum staffing ratio set forth in Health and Safety Code section 1276.5, are not being violated. Despite the $500 maximum statutory penalty per case that may be recovered per Nevarrez, in cases where serious and extensive resident right violations are uncovered, those violations still may be remedied by the robust, enforceable injunctive relief available under Section 1430(b), as well as an award of attorneys’ fees commensurate with the results achieved. That is, despite the ruling in Nevarrez, the remaining available remedies provided for in Section 1430(b) should continue to encourage private litigants and attorneys in future cases to take up the cause of skilled nursing facility residents and thereby help to protect one of the most vulnerable segments of our population. Stephen Garcia is founding partner of Garcia, Artigliere & Medby, a national elder abuse law firm. He can be reached at sgarcia@lawgarcia.com or (562) 216-5270.
108 — The Advocate Magazine
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Steven C. Glickman
Authenticating Google Street View photos for use at trial Especially valuable in premises liability to prove notice, Street View can be admitted into evidence if you follow these tips One of the most important elements in a premises-liability case is proving notice of the dangerous condition. Most often, the plaintiff will need to establish that the defendant had constructive notice regarding the dangerous condition. As set forth in CACI 1011, one of the key questions is whether “the condition was of such a nature and existed long enough that the defendant had sufficient time to discover it.” One important method of showing that a condition had existed for a substantial period of time is by using Google Street View. Google Street View started in 2007 and has since expanded its scope, both in terms of the quantity and quality of the images. You probably already know how to access Google Street View, but just in 112 — The Advocate Magazine
case, let me give you the basics: from www.google.com/maps, enter an address. Then, to browse the Street View images, left-click on the “peg man” and drag the circle that accompanies the peg man to the area you want to view. This brings up the Street View image along with an “image capture” date on the image. Here is an example of how Google Street View was used in a recent sidewalk trip-and-fall case our office handled: we went to Google Street View and we were able to obtain images that were captured in March, 2011, about 18 months before the subject trip-and-fall incident. The Street View photo showed that one slab of concrete had been raised compared to another slab of concrete, and that the raised portion was adjacent to a tree that was on defendant’s private property. We were then
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able to utilize this photograph at the deposition of defendant’s personnel and question them about the length of time the raised sidewalk condition had existed and their knowledge about the raised sidewalk. The question then becomes how to use the Google Street View photograph at trial. (See exhibit on page 114)
The easy way
There are two “easy” ways to get the photo authenticated. First, if a witness testifies that the photo is a true and correct image of the way the condition looked at the time the photo was purportedly taken, that should suffice. Second, a request for admission to establish authenticity, if admitted, would establish authenticity for use at trial.
Authenticating continues
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Authenticating — continued
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Here are two requests for admission that were propounded in our case: Request for Admission No. 1: Admit that the photograph attached hereto as Exhibit “A” is a true and correct print of an image taken in March, 2011. Request for Admission No. 2: Admit that the photograph attached hereto as Exhibit “A” shows the condition of the location of the incident as it existed in March, 2011. If the defendant admits these requests for admission, then you should be able to use the Google Street View photo. However, here is the response we received for both of these requests: Defendant has no verified information establishing when the photograph was taken, who took it, at what resolution and whether or not the zoomed image provided as Exhibit 1 was computer enhanced from its original image. Defendant has insufficient information to admit or deny the request. For the accompanying Judicial Council Form Interrogatories, No. 17.1, defendant responded: The photo attached as Exhibit A was not taken with defendant’s knowledge and is an unsubstantiated thirdparty picture. Defendant has no
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SEPTEMBER 2014
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Authenticating — continued
verified information establishing when the photograph was taken, who took it, at what resolution and whether or not the zoomed image provided as Exhibit A was computer enhanced from its original image. Thus, the two “easy” ways were foreclosed in our case.
The hard way
The next step was to subpoena the custodian of records for Google to have the Street View photo authenticated. The Rutter Group text, California Practice Guide: Civil Trials and Evidence provides an excellent discussion on how to subpoena a custodian of records for producing records to be used at trial. (See the section starting at § 1:122.)
This article will focus on what we did in order to subpoena the records from Google and to have the Street View photo identified and authenticated. We were able to track down the correct address to serve Google’s custodian of records, which is: Google Inc., 1600 Amphitheater Parkway, Mountain View, California 94043. On the Subpoena Duces Tecum for Trial, in the section for the records to be produced, we requested the following: Any and all data establishing the date of all Google Street View photographs taken at any time showing the sidewalk area at 737 S. Genesee Avenue, Los Angeles, CA 90036. Note: See photograph from Google Street View for reference (page 114).
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For the “good cause” portion of the subpoena, we submitted the following: This is an action arising from a trip and fall accident occurring on September 24, 2012 while plaintiff was walking on the sidewalk in front of the building located at 737 S. Genesee Avenue (and as reflected in the subject printout from Google Street View which is attached hereto as Exhibit “A” for reference). Plaintiff contends that aside from creating the dangerous condition, defendants had actual or constructive notice of the dangerous condition, with sufficient time prior to the date of the accident so that measures could have been taken to repair, protect or warn against the dangerous condition. The subject Google Street View photograph which is attached hereto as Exhibit “A” for reference was taken in March, 2011 (about 1.5 years before the accident), which shows the subject area in a raised and unsafe condition. Plaintiff is seeking to authenticate the Google Street View photograph (attached as Exhibit “A” for reference) to fully validate his contentions, and establish that the defendants had actual or constructive notice of the condition for a substantial period of time yet failed to remedy it. Finally, for the “material to the issues” section of the subpoena, we included the following: The production of the requested Google Street View photographs and the authenticity of the subject photographs is relevant as the subject photographs accurately represent the subject area as it existed prior to plaintiff ’s injury and will help establish liability in this personal injury case. As such, plaintiff is seeking production of and authentication of the subject photograph as accurately representing the area depicted in the photograph and also as having been taken on the date indicated on the photograph: March, 2011. Once our subpoena was served on Google, we were contacted by its custodian
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of records. They initially sent out what appeared to be a form response objecting to the subpoena. However, we further contacted the custodian of records and we were able to work out a production. Here is the “Certificate of Authenticity” that Google submitted in response to the subpoena: 1. I am a Custodian of Records for Google, Inc. (“Google”), located in Mountain View, California. I am authorized to submit this Certificate of Authenticity on behalf of Google in response to a subpoena dated March 26, 2014 (Google Inc. Internal Reference No. 427441) in the matter of Paddor v. City of Los Angeles, et al. I have personal knowledge of the following facts and could testify competently thereto if called as a witness. 2. The attached file(s) are true and correct copies of records pertaining to the location “737 S. Genesee Avenue, Los Angeles, CA 90036” (“Document”). Accompanying this Certificate of Authenticity as Attachment A is a list of hash values corresponding to each production file.
3. The documents attached hereto reflect records made and retained by Google. The records were made at or near the time the data was acquired, entered, or transmitted to or from Google; the records were kept in the course of a regularly conducted activity of Google; and the making of the records were a regular practice of that activity. Along with the Certificate of Authenticity, Google provided a disc with the Street View photos taken in 2007, 2009, 2011, and 2014. Our case settled shortly before trial; however, I believe the subpoena and the response by Google would have satisfied the authenticity requirements such that the Street View photo would have been admitted.
If you ever have a premises liability case that involves an incident that is able to be viewed from the street, be sure to check out Google Street View for a photograph to help establish notice. With this information on how to subpoena Google to authenticate the photograph, you should be able to go a long way to establish constructive notice. Steven Glickman is a principal in Glickman & Glickman, specializing in professional negligence, personal injury and product liability cases. He served as president of the Consumer Attorneys Association of Los Angeles in 2006. One of the youngest members admitted to the American Board of Trial Advocates, in 1993, he and his father, David Glickman, became the first father/son members of the Los Angeles Chapter of ABOTA. Mr. Glickman was president of the Los Angeles Chapter of the ABOTA in 2007 and currently serves on the Los Angeles Chapter and National Board of Governors. He is the 2014 President of AL-ABOTA, representing the eight ABOTA Chapters in Los Angeles. He is a graduate of UCLA undergrad and law school.
Timing is everything
Google has a new feature that provides Street Views at various times. When you go to Street View, Google will show you a range of photos. For instance, for the subject area in our case, there are photos from 2007, 2009, and 2011 that can be accessed through Google Street View.
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S ASE C TED EDI EPTED P X E ACC The Advocate Magazine — 117
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Hon. Joseph S. Mattina, J.S.C. (Ret.)
Litigation financing for small law firms The first step to establishing a line of credit is to have a business plan for the firm Over the years, plaintiffs’ contingency-fee practice has undergone significant changes. One such change has been the increase in the amount of capital needed to operate a law firm whose primary revenues are derived from contingent fees. In the past, in order to maintain a prosperous law practice, litigators did not need much more than their knowledge of the law and skill in the courtroom to attract clients. Today’s attorneys, however, must rely on much more than their legal expertise to stay competitive in an ever-increasing technological world. Today, both pre-trial procedures and the courtroom are consumed by electronics, professionally created demonstrative evidence and as many experts as can be afforded — all of which come at great cost to the attorney and their firm. Another growing expense for law firms has been the cost of advertising. The public has begun associating advertising with a law firm’s success and the skill level of its attorneys. Mass advertising has become so prevalent that even the most experienced and accomplished attorneys may not necessarily be the most 118 — The Advocate Magazine
well-known or sought-after litigators in their field. Thus, in order to promote the knowledge and experience of a law firm’s attorneys, law firms need to promote themselves extensively in all forms of media — an extremely costly exercise. The expenses associated with pretrial preparation and the trial itself have become astronomical. As a result of the heightened popularity of legal dramas on television, jurors have developed somewhat unrealistic expectations as to how and what attorneys should be presenting at trial. These expectations have led attorneys to invest more money into physical evidence and expert testimony than ever before in order to bolster their clients’ cases. What may have been construed as an unnecessary trial expense fifty years ago has now become standard operating procedure. In addition, due to significant increases in defense spending, procuring supplementary evidence, obtaining additional expert witnesses and utilizing courtroom technology have all become elements essential to success. In particular, the use of courtroom technology — fueled by the ease of display through
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computers, tablets, and smartphones — has become the expected means by which jurors will interpret the evidence. The escalating cost of operating a law firm, including advertising and additional trial expenses, has turned the traditional law firm into a commercial entity. As such, the law firm can no longer continue to operate as a mere extension of an individual attorney. Rather, the law firm needs to create, and abide by, a solid business plan, incorporating future projections as well as the costs associated with achieving those goals. Detailing the costs needed to build the law firm will help determine the amount of capital the law firm needs in order to grow and be successful. A solid business plan should include a complete inventory of all the law firm’s current cases, with assessments of liability, value and timing of case resolution. Truly understanding the value of the law firm’s case inventory and projected resolution dates can help the attorney determine cash-flow needs. The business plan should also incorporate miscellaneous expenses such as advertising, labor, overhead, benefit packages for employees,
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equipment, experts and other case costs. By assessing future revenue and expenses, the attorney can more accurately determine what type of financing is needed to support the firm. Once the attorney establishes a business plan projecting the amount of capital required to run the firm, the attorney must then determine how to obtain that capital. Traditionally, law practices have been either self-funded or operated with the assistance of a small bank line. This type of traditional financing was limited to the attorneys’ personal assets and net worth. Today, specialized commercial lenders also exist that can analyze the firm’s contingent fee receivables and add this asset to the collateral “pot,” allowing the law firm to borrow substantially more than conventional banks can provide. Acquiring a line of credit for the law firm also gives an attorney the financial flexibility needed to maximize the value of its portfolio of cases. Often large corporate defendants and insurance companies try to delay lawsuits in an attempt to make the case more expensive for the Proof Approved as is ________ plaintiff and to, in turn, force the plainApproved tiff into accepting Proof an earlier, smaller set- with changes as noted:_________________________________________________ tlement. A credit line for an established Please initial and fax to (760) 721-0294 Advocate Magazine thanks you for your busine attorney gives the law firm the financial stability throughout the litigation to be able to thwart defendant delay tactics and prepare the case in the most advantageous way. Furthermore, interest paid by the law firm for a loan is considered a business expense that is tax-deductible, whereas out-of-pocket funding is not. Most states even allow attorneys to charge back a reasonable portion of the interest expense to their clients when this issue has been previously addressed in the retainer agreement and the line is utilized for a case-specific expense. This translates into an effective rate of interest that is significantly less than the stated rate.
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The Advocate Magazine — 119
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Bryan Schwartz
Cecilia Guevara Zamora
Member, CAALA Board of Governors
PAGA: A decade of victories The Private Attorneys General Act has been empowering plaintiff attorneys in employment law for ten years This year marks the ten-year anniversary of California’s Private Attorneys General Act of 2004, an essential weapon in an employee rights advocate’s arsenal. Under PAGA an aggrieved employee can recover civil penalties on behalf of the State’s Labor Workforce Development Agency (LWDA) for all current and former employees for Labor Code violations. (§ 2699(a).) Originally enacted to attack California’s underground economy – businesses unlawfully operating outside of the state’s tax and licensing requirements – and enhance revenues (California Bill Analysis, S.B. 796 Sen., 4/29/2003), PAGA gives workers’ rights advocates an ability to vindicate the State’s interest in obtaining redress for flagrant wage violations statewide.
PAGA representative actions do not need to meet class action requirements
In Arias v. Superior Court (2009) 46 Cal.4th 969, the plaintiff brought a representative PAGA claim for wage and hour violations, among other claims. (Id. at 976.) The trial court granted defendant’s motion to strike the PAGA claim and other causes of action, for failure to 120 — The Advocate Magazine
comply with the pleading requirements for a class action. (Ibid.) Subsequently, the Court of Appeal issued a peremptory writ of mandate directing the trial court to strike other causes of action, but not the PAGA claim. (Ibid.) The California Supreme Court agreed with the Court of Appeal – holding that a plaintiff suing under PAGA did not need to comply with California’s classaction requirements. (Id. at 988.) Arias addressed and dismissed three arguments posed by defendants: (1) the Court of Appeal’s construction of PAGA would lead to absurd results because one subdivision in the statute allows for class actions, while another subdivision does not, (2) the legislative history indicates the legislature intended actions under the act to be brought as class actions, and (3) the act violates due process rights of defendants. (Id. at 982-84.) Rejecting these positions, the Court held that a PAGA plaintiff sues as the “proxy or agent” of the state’s labor law enforcement agencies. (Id. at 986.) As such, a PAGA plaintiff represents the same legal rights and interests as state labor law enforcement agencies. (Ibid.) Ultimately, the PAGA claim is an enforcement action,
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not a class action brought for recovery of civil penalties, so it need not comply with class action pleading requirements. Most federal courts have likewise held that a PAGA claim need not be certified under Rule 23. (See, e.g., Cardenas v. McLane Foodservices, Inc. (C.D. Cal., Jan. 31, 2011) SACV 10-473 DOC FFMX, 2011 WL 379413, *3 (a PAGA claim neither purports to be a class action nor intends to accomplish the goals of a class action); Sample v. Big Lots Stores, Inc. (N.D. Cal., Nov. 30, 2010) C 10-03276 SBA, 2010 WL 4939992, *3 (the Class Action Fairness Act (CAFA) “applies only to state statutes or procedural rules that are similar to a federal class action brought under Rule 23” – but PAGA claims are distinct from class actions). But see, Fields v. QSP, Inc. (C.D. Cal., June 4, 2012) CV 12-1238 CAS PJWX, 2012, WL 2049528, *5 (plaintiff must meet requirements of Rule 23 because PAGA is a procedural mechanism).
PAGA claims cannot be forced to individual arbitration
As the nation’s High Court shows increasing animus towards class actions – reimagining the Federal Arbitration Act
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of 1925 (FAA) to diminish Federal Rule of Civil Procedure 23’s efficacy as a method through which employees and consumers can vindicate their rights – the State of California, through private counsel, can still pursue relief for workers through PAGA representative actions. In AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, the U.S. Supreme Court relied on the FAA to abrogate Discover Bank v. Superior Court (2005) 36 Cal.4th 148, which had held that the party with superior bargaining power unconscionably carried out a scheme to cheat large numbers of consumers out of individually small sums of money, using an arbitration agreement with a classaction waiver to prevent class action and meaningful relief. While Concepcion stunted class-action litigation, it did not address PAGA representative actions brought on behalf of the LWDA. The California Court of Appeal held that PAGA claims are not subject to individual arbitration agreements in Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, review denied (Oct. 19, 2011), cert. denied 132 S.Ct. 1910 (Apr. 16, 2012). In Brown, the plaintiff brought both a class-action claim and a PAGA claim against her employers for various labor code violations. (Id. at 494.) The employers moved to compel individual arbitration based on a provision in the employment contract, which they argued prohibited both class actions and
of Appeal declined to follow Brown and Reyes in a case brought by drivers, who brought a PAGA representative action but had signed an employment contract with an individual arbitration agreement. (Id. at 375, 384.) Reversing, the California Supreme Court held that a PAGA claim could not be subject to an individual arbitration provision in an employment contract. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 384.) The Court reasoned that a PAGA action was a type of qui tam action (Id. at 382) – whereby a plaintiff brings an action on behalf of the State. However, unlike a pure qui tam case, where the relator collects a
representative PAGA claims. (Id. at 495.) While the class claim fell to arbitration, the PAGA claim averted arbitration. The Brown court concluded Concepcion did not address – and thus could not be binding on – PAGA, which is an enforcement action in which employees and their counsel act as an “agent or proxy” of the state. (Id. at 503.) See also, Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th 1119, 1124 (PAGA is not within the scope of individual arbitration because a PAGA claim is not an individual claim). Other courts disagreed with Brown and Reyes, including Iskanian v. CLS Transp. Los Angeles, LLC (Cal. Ct. App. 2012) 142 Cal.Rptr.3d 372. In Iskanian, the Court
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PAGA — continued
“bounty,” the 25 percent goes to all the aggrieved employees − not just the plaintiff. (Ibid.) PAGA is not and has never been intended as a “bounty hunter” statute. The Court also reaffirmed Arias’ holding that a plaintiff bringing a PAGA claim acts as an “agent or proxy” of the state’s labor law enforcement agencies. (Id. at 382.) The Court also drew from the Supreme Court’s decision in EEOC v. Waffle House, Inc. (2002) 534 U.S. 279, which held that an employment arbitration agreement governed by the FAA did not prevent the Equal Employment Opportunity Commission (EEOC) from suing an employer on behalf of an employee bound by that agreement for
victim-specific relief. (Iskanian, 59 Cal.4th at 386.) In Waffle House, the EEOC was not a party to the arbitration agreement and could bring an enforcement action regardless of the private agreement. (Ibid.) Similarly, a PAGA claim lies outside the FAA’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute between an employer and the state. (Ibid.) 1
PAGA creates an unwaivable public policy right
Iskanian reminds us that a PAGA creates an unwaivable public policy right: any agreement by employees to waive their right to bring a PAGA claim serves
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SEPTEMBER 2014
to disable one of the primary mechanisms for enforcing the Labor Code. (Id., 59 Cal.4th at 383.) Because such an agreement has the “object, … indirectly, to exempt [the employer] from responsibility for [its] own…violation of the law,” (Civ. Code, § 1668) it is against public policy and unenforceable as a matter of law. Further, a court must review and approve any proposed settlements that attempt to release PAGA claims. (See Lab. Code, § 2699(l).) In Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003, the Court held that PAGA did not create a transferable property right, such that a union did not have standing to bring a PAGA claim on behalf of aggrieved employees. Because of the “simply procedural” language posited in Amalgamated, federal courts have been mixed on the question of the type of right created by PAGA, leading some federal courts to interpret PAGA as a “simply procedural” statute that can be preempted by Rule 23’s class certification requirements. Compare Cunningham v. Leslie’s Poolmart, Inc. (C.D. Cal., June 25, 2013) CV 13-2122 CAS CWX, 2013 WL 3233211, *7 (a PAGA claim is a type of qui tam action and thus, substantive in nature); Moua v. International Business Machines Corp. (N.D. Cal., Jan. 31, 2012) 5:10-CV-01070 EJD, 2012 WL 370570, *3 (PAGA transcends the definition of what is simply procedural); and Mendez v. Tween Brands, Inc. (E.D. Cal., July 1, 2010) 2:10-CV-00072-MCE, 2010 WL 2650571, *3 (to find that PAGA creates a wholly procedural right, and that Rule 23 therefore applies, would be to ignore the intent of the legislature in passing the statute); with Fields, 2012 WL 2049528 (PAGA “is simply a procedural statute”) (citing Amalgamated, 46 Cal.4th at 1003); Halliwell v. A-T Solutions (S.D. Cal. 2013) 983 F.Supp.2d 1179, 1183-84 (Federal Rule of Civil Procedure 23 governs all representative claims brought in federal court, even if the underlying individual claims arise under state law) (citing Fields at *5). With Iskanian reaffirming PAGA’s unwaivable public policy right and likening the statute to a qui tam action, which
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according to Cunningham is substantive in nature, federal courts should think twice before interpreting PAGA as simply a procedural state statute that can be preempted by federal procedural rules.
PAGA and fee shifting
PAGA allows workers their day in court when the cost of litigation would otherwise impede access to justice. In Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, plaintiffs brought an unsuccessful class action for violation of wage and hour laws and unfair competition laws. The employer sought to recover fees for the defeated meal and rest period claims under Labor Code section 226.7, invoking section 218.5’s two-way fee-shifting provision. The court concluded that section 218.5 did not apply to
meal/rest claims and that neither party could recover attorneys’ fees for an action brought under section 226.7. (Id. at 1248.) While the Kirby ruling shielded plaintiffs from having to pay an employer’s attorneys’ fees when they are unsuccessful in vindicating claims for denied meal and rest breaks, it also would have left workers in most cases without representation in bringing such claims.
PAGA penalties
Under section 2699(g)(1), a plaintiff who brings a PAGA claim to recover payment for missed meal and rest breaks can recover attorneys’ fees. PAGA may also be used to seek attorneys’ fees for other statutory provisions which vindicate public policy but do not contain separate fee provisions, such as waiting time penalty
In Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, a case in which a bus driver brought a PAGA claim, the Court of Appeal discussed the issue of PAGA penalties. The Court first held that Thurman could recover civil penalties under Labor Code section 558 which provides in relevant part: “(a) Any employer or other person acting on
PAGA to the rescue
claims under Labor Code section 203, and whistleblower claims under Labor Code section 1102.5. The fee-shifting provision levels the playing field, especially for low-income workers going up against employers that would otherwise drown the workers’ claims in insurmountable litigation costs.
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The Advocate Magazine â&#x20AC;&#x201D; 123
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PAGA — continued
behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the [IWC] shall be subject to a civil penalty. (Id. at1130.) The provision allowing recovery of penalties under PAGA did not extend so far as to allow plaintiff to recover civil penalties under both PAGA and Wage Order 9 (which contained its own civil penalties provision) because doing so would “allow an impermissible double recovery for the same act.” (Id. at 1131.) Further, Thurman could recover unpaid wages as part of the civil penalty under PAGA. The Court held that the civil penalty under Labor Code section 558 consisted of both the monetary penalty amount and the underpaid wages, with the underpaid wages going entirely to the affected employee or employees as an express exception to the general rule that civil penalties recovered in a PAGA action are distributed seventyfive percent to the Labor and Workforce Development Agency (LWDA) and twenty-five percent to the aggrieved employees. (Id. at 1145.) Aggrieved employees can also recover penalties for missed meal and rest breaks under PAGA as the civil penalty
under section 558 applies to “any provision regulating hours and days of work in any order” of the IWC, including the rest period requirement. (Id. at 1153.) Additionally, in Sarkisov v. StoneMor Partners, L.P. (N.D. Cal., Apr. 3, 2014) C 13-04834 WHA, 2014 WL 1340762, *5, the Northern District of California held that a PAGA plaintiff can sue for PAGA penalties applicable to his own individual action – that is, for the injuries done just to him – without having to prove all PAGA penalties for everyone else in the same workplace.
PAGA and joint employers
PAGA allows employees to hold joint employers – including culpable, individual corporate owners – accountable for Labor Code violations. In Reynolds v. Bement (2005) 36 Cal.4th 1075, 1094, overruled on other grounds by Martinez v. Combs (2010) 49 Cal.4th 35, Justice Moreno, in his concurrence, raised the possibility that the then-new PAGA statute would permit individual liability for corporate officials for wage violations. Justice Moreno explained that “the Private Attorneys General Act… authorizes civil penalties for violations of the wage laws that include unpaid wages from ‘any employer or other person
acting on behalf of an employer,’ a phrase conceivably broad enough to include corporate officers and agents in some cases.” (Reynolds, 36 Cal.4th at 1094.) Thurman reaffirms Justice Moreno’s concurrence. (Thurman 203 Cal.App.4th at 1144.) Federal courts have also individual owners accountable for wage violations based upon PAGA. In McDonald v. Ricardo’s on the Beach, Inc. (C.D. Cal., Jan. 15, 2013) CV 11-9366 PSG MRWX, 2013 WL 153860, *1, the plaintiff brought a PAGA claim for wage and hour violations, and the defendant moved for summary judgment alleging he could not be held liable under PAGA because he was an absentee owner. (Ibid.) The court first made clear that PAGA encompasses “any provision” of the Labor Code. (Id. at *3.) The Court also said Labor Code section 558 – individually actionable through PAGA – makes clear that an individual defendant can be subject to the penalties of Labor Code section 510 if he is “acting on behalf of an employer who violates, or causes to be violated” (Lab.Code , § 510. (citing Ontiveros v. Zamora (E.D. Cal., Feb. 20, 2009) CIV S-08-567LKK/DAD, 2009 WL 425962). In denying defendant’s summary judgment motion, finding that the owner could be a liable “employer”
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based upon PAGA, the Court relied on evidence that defendant’s company prepared paychecks, and that defendant signed paychecks, sometimes brought them to be distributed, and made policy decisions pertaining to the company. (Id. at *4-5.)
Removal to federal court
A PAGA action is not easily removed to federal court. Aggrieved employee penalty amounts cannot be aggregated to satisfy amount-in-controversy requirements for purposes of diversity jurisdiction. (See Urbino v. Orkin Services of California Inc. (9th Cir. 2013) 726 F.3d 1118.) Further, while Pagel v. Dairy Farmers of America, Inc. (C.D. Cal. 2013) 986 F.Supp.2d 1151, 1157, sought to limit Urbino to non-CAFA cases, the holding has been undermined by Baumann v. Chase Inc. Services Corp. (9th Cir. 2014) 747 F.3d 1117. Baumann held that PAGA actions are not sufficiently similar to Rule 23 class actions to trigger CAFA jurisdiction, reaffirming Urbino’s holding that potential PAGA penalties against an employer may not be aggregated to meet the amount in controversy requirement, and holding that CAFA provides no basis for federal jurisdiction over a PAGA action.
Looking ahead
fellowships to enter plaintiffs’ employment law for diverse new lawyers and law students. Schwartz is an amicus writer for CELA, having authored or co-authored the organization’s Supreme Court briefs in Brinker, Kirby, and Duran. He can be contacted at Bryan@BryanSchwartzLaw.com or www.bryanschwartzlaw.com.
There are still some lingering questions pertaining to PAGA. For example, it is still unclear what protections PAGA affords public sector employees and whether the U.S. Supreme Court will choose to foray into uniquely California law once again to force down the Chamber of Commerce-sponsored agenda and squelch California’s PAGA enforcement actions. Despite these uncertainties, with a growing list of favorable jurisprudence, PAGA is becoming an unmatched weapon in the fight for workers’ rights.
Cecilia Guevara Zamora emigrated from Mexico as a child, graduated magna cum laude from UCLA, and served as a high school teacher in Coachella Valley before beginning law school. She is a student at UC Davis School of Law (King Hall), and won an Employee Justice Fellowship to work at Bryan Schwartz Law during summer 2014. She has also worked with the California Department of Fair Employment and Housing, the California Rural Legal Assistance Foundation, La Raza Law Students Association of UC Davis, and the Legal Aid Society-Employment Law Center.
Bryan Schwartz has an Oakland-based firm representing workers in class, collective, and individual actions in wage/hour, discrimination, whistleblower, and unique federal and public employee claims. He practices in state and federal trial and appeals courts, in arbitration, and before a variety of administrative agencies. Schwartz is an Executive Board member for the California Employment Lawyers Association (CELA), on the State Bar of California’s Labor & Employment Law Section Executive Committee, and will be Chair of the 7200-member Labor & Employment Law Section. He is President of FAIR (http://www.fair-foundation.org/), an organization dedicated to providing
Even the odds.
Endnote
Iskanian undermines Fardig v. Hobby Lobby Stores, Inc. (C.D. Cal. June 13, 2014) SACV 14-561 JVS ANX, 2014 WL 2810025, *7 n. 10, which held shortly before the California Supreme Court ruled in Iskanian “that the arbitration of representative PAGA claims would frustrate the objectives of the FAA in contravention of Concepcion.” It remains to be seen how federal courts will react post-Iskanian.
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The Advocate Magazine — 125
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Hon. Patricia Schnegg
Breaking the psychological barriers to settlement People cannot divorce themselves from their emotions and perceptions when they decide to mediate A review of the mediation literature suggests that to be a successful mediator one must be able to build rapport with the parties; be seen as honest, ethical and trustworthy; be empathetic; and have the ability to create workable solutions. While these are essential characteristics, the importance of various psychological factors should not be overlooked. A critical component to a successful mediation or settlement conference requires a thorough evaluation of the participants, their thoughts, emotions and behavior. People do not live in a vacuum and the fact is that people cannot divorce themselves from their emotions and perceptions when they decide to mediate a dispute. Factors such as motivation, perception, personality, interpersonal relationships as well as emotions are all a part of the mediation process. Often, a resolution can only be achieved after these factors have been recognized and taken into consideration as part of the process.
Choosing a mediator
Sensitivity to these intangible factors could have made a difference in the first case I submitted to mediation as an attorney. The case was a highly contentious will contest. The attorneys did not get along, nor did the clients speak, so to break the logjam someone suggested mediation. Mediation was not yet a household word and private mediation companies were just getting started. I can’t tell you how long it took the parties to agree upon a mediator, but we finally selected a very highly respected retired jurist who had hung up his own shingle upon retirement. On paper he possessed all of the usual characteristic sought in a mediator. I know that we were all hopeful when we entered that office, but the experience was far from positive. The mediator was late and had clearly not read the briefs (did I mention that we were paying for his services). After introductions he spoke to one side then the other, after which he came into the reception area and announced that the case would never settle and that we should prepare for trial. We were all somewhat stunned that he reached that conclusion after working with us for just over an hour. I sat in my car wondering why the mediator give up on us when I saw him load his golf clubs into his car and speed away. 126 — The Advocate Magazine
SEPTEMBER 2014
The need for third-party intervention
First impressions may have led the mediator to conclude that the situation was hopeless. However, if he had looked beneath the surface he may have drawn a different conclusion. First, it spoke volumes that in spite of the hostile relationship, all parties had voluntarily agreed to participate in the negotiation process. The attorneys knew they were in need of third-party intervention if they were ever to move the case toward resolution. The fact was that the personalities involved prevented a candid discussion of the merits of the case. The parties needed a third party to evaluate the merits of the case and had faith that this mediator was the catalyst that could lead to resolution of the case. Apparently, the mediator lacked the necessary ability to evaluate the motivation of the parties and thus failed to seize that opportunity. I often recall that experience and make sure that I am always tuned into the psychological factors that often speak louder than the spoken word. It is not always easy. Mediations and settlement conferences are dynamic and a good mediator is constantly processing and evaluating the situation and reframing issues depending upon what twist or turn the mediation takes. I take an approach that is designed to create an environment of trust where the parties feel that they can speak freely. I start every settlement conference by introducing myself to all of the parties. I want to shake hands and make small talk. I want to walk away knowing something about the parties that is completely unrelated to the case. (When I complimented an elderly women on her flawless complexion she shared her secret – almond oil − applied nightly. I took her advice and bought some that same day.) Next, I always ask the litigants whether they have any questions and tell them that they can always come in and speak to me at any time as negotiations unfold. I take this opportunity to let it be known that I will never disclose what is told to me in private and in return I expect a candid and honest give-and-take.
Two sides to every story
Next, I take a few minutes to speak privately to the attorneys, primarily to observe how they interact. Are they friendly, hostile or indifferent? Does it matter? I believe that it does,
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because it tells me whether there are any personality issues that we have to overcome in addition to the underlying dispute. The tone set in this initial interaction usually helps me decide which party I speak to first. For example, I once had an attorney tell me how much he liked his opposing counsel and how they had been friends since working together in a firm right out of law school. From just watching the other attorney, I knew there were two sides to that story so I decided to talk to him first. The door was barely closed before he just let go sharing his very negative opinion of his opposing counsel. It was important to get that issue on the table in case it became a factor as the negotiations got underway. I listened and it helped me to understand the attorney’s perceptions about the case. Speaking to each attorney separately also allows the attorneys to tell me about their clients and they will often share private concerns or issues. I always ask the attorneys if they have any suggestions on how I should approach their clients. By this time in the process I usually have a good feel for the relative positions of the parties.
It’s all about perception
The next phase involves the backand-forth of negotiations. I am naturally a people person so I enjoy listening. During this stage I talk to each side separately usually with the attorneys and their clients, but even this has a psychological component. For example, some people have scorekeeper mentalities and they watch the clock to make sure that I don’t speak longer with one party over another. One plaintiff actually said to me that she was upset because I spent more time talking to another plaintiff and that she now felt that I must not find her damages as compelling. That perception can certainly damage the trust and credibility that the mediator has been building. So in multi-plaintiff cases I now address that issue upfront during the initial introductory stage. Also, it is often important for plaintiffs to share what they have been through and how their lives have been
impacted. It helps to understand the plaintiff ’s perception of the events and gives a better idea about what is important to the plaintiff. Is there something in addition to monetary compensation that we can explore as part of a settlement package? Often an attorney will ask me to “talk sense” to the client when there is a viable offer on the table. I often find in many of these situations that there is something else going on in the person’s life. In one such instance, while listening to the plaintiff it became clear that in addition to the trauma of the accident she had not recovered emotionally from her father’s sudden death just weeks after. She eventually accepted the offer but first she needed to be heard and to know that no amount of compensation was going to fill the losses that she had experienced.
It’s not about the money
The strategy of money – how much to offer and how much to demand – can also be complicated. Everyone tries to divine where the other is coming from. These can be the most delicate of decisions, and the mediator plays a critical role in helping to frame the counters. At some point someone will threaten to walk away from the table. The mediator’s job is to direct the discussion, calm down the parties and keep the momentum going. Sometimes it is difficult to keep the parties focused but the mediator has to be patient and keep all parties engaged. When each side is approaching their target numbers, I will discuss the consequences of not settling from both a practical and emotional context and I will evaluate the tangible and intangible costs of proceeding to trial or settling. I don’t like to let anyone leave the table unless I am convinced there is no more room for movement.
Settlement is a process
Of course, a mediation that results in a settlement is an unequivocal success. Ideally all parties should feel slightly compromised for a greater good. However, even a mediation that does not
result in a settlement presents an opportunity for the parties to regroup and reassess their positions. Many times the attorneys can point to the advice offered by an experienced jurist or mediator, and the always present uncertainty of victory at trial, to lay a foundation for settlement at a later time. The door is always open to further discourse and it is not surprising that many cases settle a week or two following the first mediation. In summary, settlements are always based upon the applicable law and the circumstances of each particular case, but given the cost of litigation, there is real value in settlement conferences and mediation whether the case settles or not. The key is a well prepared mediator who understands not only the law, but the inevitable psychological factors that bring the parties to the table in the first place. The will-contest case that was the subject of my first mediation did eventually settle, but not until the first day of trial. During voir dire the jurors were asked their opinions as to whether it was okay for a person to leave their worldly possessions to friends rather than relatives. In response, an elderly gentlemen expressed the opinion that whoever is the first to get to the house should be able to take whatever they can carry. Five other prospective jurors nodded in agreement. Two hours later, the attorneys, who had never had a cordial exchange, settled the case. I have always wanted to thank prospective juror number 5. Patricia M. Schnegg was appointed to the Los Angeles Superior Court in 2000. Since November 2012, she has been assigned to a dedicated settlement court in Santa Monica. Prior to her appointment, she was in private practice for 23 years handling complex civil litigation. Judge Schnegg is a past president of both the Los Angeles County Bar Association and the Women Lawyers Association of Los Angeles. She recently completed 16 years of service on the Board of Regents of Loyola Marymount University where she earned both her B.A. and J.D. SEPTEMBER 2014
The Advocate Magazine — 127
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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
Appellate Reports and Cases in Brief Cases of interest to members of the plaintiffs’ bar
Gregory v. Cott
(2014) __ Cal.4th __ (Cal. Supreme.) Who needs to know about this case? Lawyers who litigate tort cases. Why it’s important: Applies the doctrine of primary assumption of risk to an occupational hazard; not a recreational activity; extends the “firefighter’s rule” to in-home health workers Synopsis: Cott contracted with a home healthcare agency to assist him with care for his 85-year old wife, Lorraine, who suffered from Alzheimer’s disease. The agency assigned Carolyn Gregory to work in the Cott’s home. While Gregory was washing a knife in the kitchen sink, Lorraine approached her, bumped into her, and reached toward the sink. Gregory dropped the knife while attempting to restrain Lorraine and suffered a serious cut that resulted in numbness in several fingers and recurring pain. She sued Cott and Lorraine for negligence and premises liability, and sued Lorraine for battery. The trial court dismissed the suit on summary judgment, relying on the doctrine of primary assumption of the risk. The Court of Appeal affirmed. The Supreme Court affirmed, as well. California’s assumption of risk doctrine has taken two different forms. Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm. Secondary assumption of risk applies when the defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury caused by the defendant’s breach. Liability in such cases is adjudicated under the rules of comparative negligence. While primary assumption of the risk often involves recreational activity, it also governs claims involving inherent occupational hazards. The bar against recovery in that context first developed as the “firefighter’s rule,” which precludes firefighters and police officers from suing members of the public for the 128 — The Advocate Magazine
conduct that makes their employment necessary. The “veterinarian’s rule” applies similarly to preclude veterinarians or their assistants from recovering against the owners of dogs who bite during treatment. The rule is grounded on the belief that “it is unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront.” The Court of Appeal applied that rationale in Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1770-1772, which applied the doctrine of primary assumption of risk to bar a claim by a nurse’s aide in a convalescent hospital who was struck and injured by an Alzheimer’s patient. Herrle concluded that public policy favors exempting patients from liability to healthcare providers “for injuries inherent in the very condition for which treatment was sought.” Gregory argued that Herrle should not be applied to caregivers employed in private homes, which lack the specialized equipment and trained health care professionals found in institutions. Thus, she argued in-home caregivers cannot be said to be “in the best position to protect against the risks to the provider rooted in the very reason for the treatment.” Gregory argued that her case should therefore be decided under the doctrine of secondary assumption of the risk. But the Court rejected this approach, because secondary assumption of the risk is predicated on the existence of a duty owed by the defendant to the plaintiff. Here, no duty was owed. Caregivers are hired to protect the patients from harming themselves or others. If a patient injures a caregiver by engaging in the combative behavior symptomatic of Alzheimer’s disease, the “particular risk of harm that caused the injury” was among the very risks the caregiver was hired to prevent. The Court did include some language in the opinion limiting its scope.
SEPTEMBER 2014
It said, “We do not hold that anyone who helps with such patients assumes the risk of injury. The rule we adopt is limited to professional home healthcare workers who are trained and employed by an agency.”
Short(er)takes Subsequent remedial measures; Evid. Code, § 1151; proof of causation: McIntyre v. Colonies-Pacific, LLC (2014) __ Cal.App.4th __ (4th District, Div. 1.) McIntyre and his daughter were beaten and terrorized in an armed robbery of McIntyre’s jewelry store. McIntyre sued the shopping center where the store was located for negligence in failing to provide adequate security and introduced evidence of a pattern of armed robberies in the months before his store was robbed. After the robbery, the center hired unarmed security patrols, and there were no further armed robberies in the years following. The trial court granted the center’s motion in limine to preclude McIntyre from introducing evidence of the post-robbery patrols. McIntyre argued that he should be allowed to introduce the evidence, not to show that the center was negligent for not having them, but to respond to its contention that hiring patrols would not have made any difference; e.g., to show causation. The jury found that the center was negligent, but ruled against McIntrye on causation. McIntyre filed a new-trial motion arguing that he should have been allowed to introduce the evidence to establish causation, and to respond to the comment by counsel in opening statement. The motion was denied. Affirmed. Evidence Code section 1151 provides: “When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove
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negligence or culpable conduct in connection with the event.” Section 1151 does not require the exclusion of evidence of subsequent measures when offered for another purpose besides negligence, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. The court held that these exceptions were of no assistance to McIntyre, because the evidence did not go to those issues. The Court held that, “Whether the issue is couched in terms of the due care or causation aspect of a negligence cause of action, admission of evidence that Colonies subsequently hired a security service, which improved safety, would discourage others similarly situated from undertaking such measures, an outcome that would thwart public policy.” As far as the comment of counsel in opening statement, since the trial court instructed the jury that the comments of counsel were not evidence, there was no abuse of discretion in denying the motion. Class actions; stipulation to temporary judge: Luckey v. Superior Court (2014) _ Cal.App.4th __ (2d District, Div. 3.) Customer brought class action against retailer under the federal Fair and Accurate Credit Transaction Act (FACTA). Before the class was certified, the plaintiff and the defendant mediated their dispute and reached a settlement. They stipulated to the appointment of a temporary judge for the purpose of ruling on the motions for preliminary and final approval of the settlement. This stipulation was presented to the Superior Court of California, County of Los Angeles, which declined to appoint the temporary judge, on the basis that counsel for plaintiff had no authority to sign the stipulation on behalf of the absent putative class members. Plaintiff filed a petition for writ of mandate, challenging this ruling. The appellate court concluded that the California Constitution, the California Rules of Court, and publicpolicy concerns all preclude the appointment of a temporary judge for purposes of approving the settlement of a pre-
certification class action. When the class has not yet been certified, the putative class representative has no authority to consent to a temporary judge on behalf of the absent putative class members. The court therefore denied the writ petition. Summary judgment; moving party’s burden on summary judgment; factually devoid discovery responses; amended discovery responses: Ganoe v. Metalclad Insulation Co. (2014) __ Cal.App.4th __ (2d District, Div. 3.) Mark Ganoe worked as a “utility man” at the Goodyear Tire plant in Los Angeles between 1968 and 1979. He was diagnosed with mesothelioma in 2010, and filed suit that year. He died while the case was pending, and his case was converted into a survival and wrongful-death action. On October 12, 2012, Metalclad moved for summary judgment on the grounds that the plaintiffs had no evidence that Ganoe was exposed to asbestos for which Metalclad was responsible. Specifically, Metalclad argued that the plaintiffs had served factually devoid discovery responses and had failed to identify any witnesses that could show that Ganoe worked with or around any asbestos-containing products supplied, installed or removed by Metalclad. Roughly 60 days after the motion was filed, Metalclad produced a document at its PMK’s deposition showing that it had performed insulation work on steam piping at the Goodyear plant in 1974. The plaintiffs then served an amended discovery response stating that Ganoe had been exposed to asbestos in 1974 when Metalclad, an insulation contractor, performed insulation work on steam piping in 1974 at the Goodyear plant. The plaintiffs included this amended discovery response in their opposition to the summary-judgment motion. The trial court granted the motion, in part because “the document belatedly produced by Metalclad did not show that it had performed work in the vicinity of Ganoe as it did not identify “specific dates when, and locations within the plant where, the work occurred.” Reversed.
It would be inequitable to allow a moving party to withhold relevant discovery and then meet its burden on summary judgment without consideration of such newly disclosed evidence or the opposing party’s response to that evidence. Here, the plaintiffs’ amended response to the defendant’s “all-facts” interrogatories did not consist only of “boilerplate answers,” “general allegations” and “laundry lists of people and/or documents.” By contrast, the response contained “specific facts” showing that Metalclad had exposed Ganoe to asbestos in 1974 by removing asbestos-containing insulation in Department 132 of the Goodyear plant while he was present. Therefore, this response did not lead to an inference that the plaintiffs could not prove causation. Even if Metalclad had met its burden as the moving party, summary judgment should have been denied as the plaintiffs raised triable issues of material fact. There was evidence Metalclad performed insulation work on steam piping at the Goodyear plant in 1974, that the only construction work requiring the installation of insulation at the Goodyear plant in 1974 occurred in Department 132 when a new Banbury machine and “laydown machine” were installed, that the installation of those machines also required the removal of old insulation, and that Ganoe worked in that department, was present during the repair of the steam lines’ insulation and breathed in the resulting dust. Furthermore, according to the plaintiffs’ expert witness, it was more likely than not that the old insulation removed during this process contained asbestos. Viewed in its best light, this evidence supported a reasonable inference that the plaintiffs could show causation. Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. He is the editor-in-chief of Advocate magazine. SEPTEMBER 2014
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Proposition 46 Update Greenback democracy The campaign funding reports came back at presstime for the opposing sides on Proposition 46, the Troy and Alana Pack Patient Safety Act. The upshot is that the insurance industry is bankrolling the opposition campaign, contributing the lion’s share of the $41 million war chest amassed by Prop 46 foes. Bob Pack, lead proponent of Prop 46 (the Troy and Alana Pack Patient Safety Act) put it succinctly: “The malpractice insurance industry and hospitals are putting profits before patients. Even as America experiences an epidemic of up to 440,000 deaths a year due to preventable medical errors, those who hold our lives in their hands are more interested in protecting dollars and bad doctors rather than taking reasonable steps to save lives.” Pack is the father of Troy and Alana Pack, who were 10 and 7 years old when they were killed by a drunk and drugged doctor-shopping driver who had been overprescribed thousands of pills from Kaiser physicians. Insurers have contributed 56 percent of the cash to the “No on 46 campaign,” while hospitals have given 12 percent and medical groups have provided more than 31 percent. A breakdown of donations to the “No on 46 campaign” by industry and firm can be downloaded at: www.tinyurl.com/NoOn46 The medical malpractice insurance industry is able to bankroll the campaign against Prop 46 largely because it has been incredibly profitable in recent decades, paying out in malpractice claims as little as 10 cents of every premium dollar collected and keeping the rest for overhead, big salaries for top executives, and surpluses. Malpractice insurers’ net income is roughly double what is collected by most other lines of insurance, including auto and home policies. With so much cash coming in the door, California’s two largest malpractice insurance firms have amassed a surplus of more than $2 billion. In 2012, Insurance Commissioner Dave Jones ordered several of the state’s biggest firms to rebate more than $52 million to California doctors. “It’s no surprise that malpractice insurance companies are spending big bucks to protect their cash cow in California – a 39-year lock on the courtroom doors that prevents patients from holding negligent doctors accountable,” said Carmen Balber of Consumer Watchdog Campaign, which is helping fight for Prop 46. “What’s disappointing is that doctors and hospitals have sided with the insurance industry against their patients and are spending big to prevent doctor drug testing and accountability in California.” Proponents of Prop 46 have long suspected that the insurance and medical industries, with big profits and deep pockets, would vastly outspend backers of the Patient Safety Act. It has long been rumored that Prop 46 foes would spend up to $80 million in a bid to defeat the measure, which heading into the heart of the campaign season is extremely popular with voters, with an approval rating in polls exceeding 70 percent. In contrast, the coalition of Prop 46 backers that includes MICRA victims, consumer groups, patient safety advocates and consumer attorneys has raised $4 million. “We knew from the beginning that we would be like David fighting against an insurance and medical industry Goliath,” Bob Pack said.
130 — The Advocate Magazine
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“But I have faith that even a mountain of cash and a TV advertising campaign full of lies and distortions won’t be able to sway California voters from realizing we need to take steps to better protect patients. Prop 46 is the right step at the right time. Prop 46 will save lives.”
Rica
Shern
Sacramento Update By Nancy Peverini CAOC Legislative Director Lazy days of summer? Not in Sacramento! Sacramento is really two cities. One, when the Legislature is in session, is a frustrating, frenzied place full of legislators, lobbyists, attorneys and legislative staffers running to their next meetings, negotiating bills, reviewing the law and basically just trying to get something done at a fast pace when all odds are against anyone ever actually getting legislation passed in its original form. The occupants resemble large, red, aggressive ants trying to build the tunnels they need for their existence, stinging anyone who gets in their way. The other Sacramento appears when the Legislature is out, as has been the case for the past hot month of summer recess. That Sacramento is pretty laid back, lots of jeans and flip flops, and the Capitol building might as well be an indoor ghost town, only with CHP officers who still check your purse on entry. The Legislature just completed its work for the 2013-2014 legislative session. This is the most difficult time for us, as all of the normal legislative processes and deadlines can be, and often are, ignored. “Gut and amends” (the term for bills that are stripped of their original contents and replaced with something completely unrelated) abound. Of course, we love “gut and amends” when we are doing it, but not so much when our opponents try! So in addition to monitoring CAOC-sponsored and other priority bills, we spent a good part of August making sure our opponents did not get through some tort changes they were unable to get passed via the normal process. (CAOC has already stopped every single tort reform bill introduced this session.) Three of the biggest remaining tort issues are AB 2171 (Wieckowski), AB 2617 (Weber) and AB 2293 (Bonilla). •AB 2171, sponsored by CAOC, establishes a statutory bill of rights and a private right of action for residents of residential care facilities for the elderly (RCFE) or board and care homes. This bill is crucial to protect the dignity, safety and self-determination of seniors and disabled adults who live in RCFEs. •AB 2617 prohibits contracts for goods or services from requiring a person to waive his or her civil rights and protections under the Ralph Civil Rights Act or the Tom Bane Civil Rights Act as a condition of entering into the contract. AB 2617 requires any waiver to be knowing, voluntary, in writing, and expressly not made as a condition of providing or receiving goods or services. •AB 2293 mandates insurance and coverage obligations on “transportation network companies” such as Uber and Lyft. CAOC is partnering with the insurance industry to make sure drivers, passengers and pedestrians are protected if injured by a TNC driver. We will be reporting the results shortly.
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Thank You! From CAALAâ&#x20AC;&#x2122;s Political Action Committee to all our valued
2014 2012 PAC Fund Contributors Ricardo Echeverria
y Platinum Members y David Ring
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Law Offices of Gerald L. Marcus
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y Joseph Barrett
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Law Offices of Michelle Iarusso
Greene, Broillet & Wheeler
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John P. Blumberg
Paymon Khatibi
John Roberts
Blumberg Law Corporation
Khorrami Boucher Sumner Sanguinetti LLP
Killackey Law Offices
Michael Brown
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Daglian Law Group
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AdvocateSept14issuebksv3_Advocatetemplate2007.qxd8/18/20142:55PMPage132
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From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
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The campaign From theto pass Proposition 46
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Get readyExecutive for some name-calling Director
Stuart Zanville If you are a trial lawyer, get ready to When Texas Trial Lawyer Howard CAALA be called a lot of names. Nations received the Lifetime That’s because as the campaign to Achievement Award from the American pass Proposition 46 heats up, trial Association for Justice a few weeks ago, lawyers will take the brunt of the criticism he said that Jefferson, Madison and from the well-funded groups that are Adams are not only our nation’s opposed to protecting patients. Founding Fathers, they are YOUR Don’t kid yourself; these will be perFounding Fathers. sonal attacks against you. You will be Key was on one of the ships of the called greedy, sleazy andZanville a money grabBritish armada that bombarded Ft. Stuart ber. You will be attacked McHenry during the War of 1812. He CAALA for abusing the justice system and criticized for increaswas negotiating the release of a U.S. citiing the cost of health care. zen. When the attack ended, he was so Prepare yourself for the old standstirred by the sight of the U.S. flag flying bys, that you only believe in jackpot jusover the fort, that he wrote the poem tice, lottery litigation and filing frivolous that became our national anthem. lawsuits. What do they have in common? What you won’t be accused of is They each believed fervently in who you causing the deaths of hundreds of thouare, what you do and what you believe in. Stuart Zanville sands of Americans due to preventable They each believed that ordinary citizens Angeles medical errors andConsumer unsafe Attorneys medicalAssociation prac- of Los should have a voice in a court of law. tices. That’s because the medical industry That’s what trial lawyers do every day. will spend tens of millions of dollars to When you are being attacked try to make it about you, not about them. between now and November for nothing They will say this is nothing more more than being a trial lawyer, I want than a money grab by trial lawyers to make you to think about the words of it more lucrative to file meritless lawsuits. Jefferson, Madison, Adams, Key and These are more than just attacks on Harper Lee through her character your profession; these are attacks on the Atticus Finch. Civil Justice System and the Constitution. Here’s how they would have Since in the next 60 days you will responded to the attacks you will face. hear trial lawyers being called lots of These are their words: names, I want to give you a few other Atticus Finch (Harper Lee) names to consider. These names are Thomas Jefferson, Our courts have their faults, as James Madison, John Adams, Francis does any human institution, but in this Scott Key and Atticus Finch. country our courts are the great levelJefferson, Madison and Adams were ers, and in our courts all men are crethe Founding Fathers of this country and ated equal. I’m no idealist to believe in served as the second, third and fourth the integrity of our courts and in the Presidents of the United States. Key jury system−that is no ideal to me, it is wrote the “Star Spangled Banner” and a living, working reality. Finch was the main character in Harper Francis Scott Key Lee’s novel To Kill a Mockingbird. Jefferson, Adams, Key and Finch Then conquer we must, when our were trial lawyers. Madison never went to cause it is just, law school but wrote the words that And this be our motto: ‘In God is became the Seventh Amendment. our trust.’
From the Executive Director
From the Executive Director
132 — The Advocate Magazine
SEPTEMBER 2014
And the star-spangled banner in triumph shall wave O’er the land of the free and the home of the brave!
John Adams
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The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men. Without any regard to persons, the law commands that which is good, and punishes evil in all, whether rich, or poor, high or low.
Thomas Jefferson
The right to a civil jury is justice by the people. By a declaration of rights I mean one which shall stipulate freedom of religion, freedom of the press, trial by juries in all cases. No nation however powerful, any more than an individual, can be unjust with impunity. The lesson is useful to the weak as well as the strong.
James Madison
In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. — The 7th Amendment to the Constitution and one of the 10 amendments that make up the Bill of Rights.
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The Advocate Magazine — 133
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From the President Casey Johnson
Orange County Trial Lawyers Association
Heating up A chance to be part of the solution
“I offer my opponents a bargain… if they will stop telling lies about us, I will stop telling the truth about them.” — Adlai Stevenson
As we enter the last month of summer, things are just now really starting to heat up. We are roughly 60 days from what will undisputedly be the most important election of our time for consumers and consumer attorneys. The results of this November’s election − specifically the fate of Proposition 46 − will determine the future of consumer protections in California. Not just whether patients in California will be safer and whether wrongdoers can be held accountable for their actions, but whether Californian’s will even have access to the civil justice system – including a judge and jury to decide their disputes. Consumers’ and consumer attorneys’ political clout and influence will absolutely be measured by the success of Proposition 46. A defeat in November will all but guarantee a flood of anticonsumer legislation and ballot measures that will seek to set back consumer protections by generations. Attacks on court funding will likely follow. As consumer attorneys, we are often the only voice seeking to protect consumers – drowned out by limitless corporate coffers. For decades now, any pro-consumer legislation is demonized as “an end run around MICRA.” Despite these assertions being false, politicians unwilling to take on insurance companies and doctors take the bait – all to the detriment of consumers. The only way to end the power of this lie is to take MICRA off the table. And what better way to do so than in conjunction with two other provisions that will help protect patients – and all Californians. Proposition 46, the Troy and Alana Pack Patient Safety Act, will make California safer for all Californians. This is an indisputable fact. The arguments against each of the Act’s provisions 134 — The Advocate Magazine
spewing from the insurance companies and other corporate interests funding the opposition are pure sophistry. Lies and fear mongering are the opposition’s only hope at success in November.
“In politics, a lie unanswered becomes truth within 24 hours.” — Willie Brown
This sentiment has never been more eerie and threatening than today, in the era of the Internet, social media and the 24-hour news cycle. It is this unfortunate reality that poses the greatest danger to consumers in November. The powerful insurance lobby, hiding behind the face of doctors and medical associations, has committed to spending as much as $100 million to defeat a measure that would make California safer for everyone. This is a nearly limitless fund from which to perpetuate a never-ending list of lies. Consumers seeking to increase patient safety will be outspent in November. There is simply no way that consumer advocates and patients (including those who have been victims of malpractice) can match the funds being committed to the campaign against patient safety by corporations who earn annual profits exceeding $1 billion. California voters will see through the corporate lies and unsubstantiated claims in November, but only if they have the opportunity to hear the truth. Once presented with the truth, Californians will vote overwhelmingly for patient safety – and a safer community for all Californians.
“Justice is truth in action.” — Benjamin Disraeli
What can we do to ensure Californians hear the truth about Prop 46 so that justice is done? First, by ensuring that the Yes on Prop 46 campaign has the funds it needs to get the message out − plain and simple. Giving to a campaign of this
SEPTEMBER 2014
importance requires commitment at levels that greatly exceed those that may have sufficed for past campaigns. As has been said, we must all give until we are proud. There has not been a more important election for consumers and consumer advocates in more than 20 years. And second, by sharing the truth about Prop 46 with everyone you know – including friends, family members, and clients – at every opportunity you get. If you have been to see a doctor lately, you’ve probably seen the “Bad Rx” pamphlet that the insurance companies and doctors are already circulating to patients across the state – filled with the lies and deception that they are hoping will scare patients into voting against their selfinterests. We must meet the deceptive efforts of the anti-consumer movement by making sure the truth about the provisions of Prop 46 are discussed at every opportunity. This includes taking an extra ten or fifteen minutes to discuss Prop 46 with potential new clients who call with righteous malpractice cases that simply cannot be litigated due to the economies of the current legislative scheme. Prop 46’s provisions are simple: (1) random drug testing of doctors (the only individuals who can legally provide themselves with commonly abused prescription medications); (2) Mandatory reporting of doctors suspected to be under the influence; (3) statewide database checks to stop drug seeking by those with prescription medication addiction; and (4) inflationary adjustment of damages caps. Each of these provisions will help make California safer for everyone. We all must dig deep and commit the time and resources necessary to ensure that the truth about Prop 46 is communicated. This is the only way we can ensure that justice is attainable for all Californians for many years to come. If you are not part of the solution, you are part of the problem. If you want to be a part of the solution, the time to act is now.
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CAALA Connection Center ConnectwithNewCAALAMembers
:
We welcome the following new members who joined CAALA during the month of July. Julie Ahn
Art Gharibian
Raul Perez
Attorney at Law
Gharibian Law
Capstone Law APC
William Powell
CAALA Connection Center Maritza Artiga
Joanna Ghosh
Law Offices of Denise Wright
Lawyers for Justice, PC
Attorney at Law
Arya Azizi
Viktoria Golishenko
Michael Rachmann
Cohen & Marzban, Law Corp
Westside Personal Injury Law Center
Western State College of Law
Eliza Badalyan
Brandy Gomez
Angela Rankin
West Side Personal Injury Law Center
Law Offices of Linda Roberts-Ross
El Dabe Law Firm
Margarita Beoglyan
Justin Gordon
Eric Rechsteiner
The Margarian Law Firm
Gordon, Edelstein, Krepack, Grant, Felton & Goldstein
Attorney at Law
Scott Boyer
Raymond Hane
Rey Rivera
The Homampour Law Firm
California Employment Counsel, APC
Law Offices of Christopher J. Lauria
John Brockmeier
Eliza Haney
Michael Ross
Brockmeier Law Group
Loyola Law School
Law Offices of Roberts-Ross
Shannon Brooks
Michael Hemming
Kara Shacket
Brooks, Esq.
Hemming Law APC
Bermeo Law
Aaron Brown
Salar Hendizadeh
Sutton Shapiro
Brown, Brown & Brown
Downtown L.A. Law
Law Offices of William F. Salle
Kimberly Cabada
Jasmine Hurtado
Colin Smithey
Makarem & Associates
Law Offices of Robert Ozeran
Metzger Law Group
Evan Cote
Robert Hyde
Justin Strefling
Albertson & Davidson, LLP
Hyde & Swigart
Cellino and Barnes, L.C.
Alex DiBona
Michael Jaurigue
Ana Sulit
Law Office of Alex DiBona
Jaurigue Law Group
Dinsmore & Sandelmann, LLP
Eric Dubin
Thomas Kielty
Olivier Taillieu
Dubin Law Firm
Attorney at Law
The Taillieu Law Firm
Donna Eastin
Nancy Knupp
Babak Tamari
Garrison Law Firm
El Dabe Law Firm
The Law Offices of Burg & Brock
Kelsey Einhorn
Milan Kyncl
Victoria Tsylina
Pepperdine University School of Law
Wilson Kyncl & Khashan
Lawyers for Justice, PC
Mohamed Eldessouky
Richard MacNaughton
Viterbo Valera
Eldessouky Law
Attorney at Law
Attorney at Law
Simon Esfandi
Nicole Mitchell
Rachel Van
Esfandi Law Firm
University of West Los Angeles
Whittier Law School
Edna Figueroa
Victoria Morales
Brett Yorke
El Dabe Law Firm
Law Office of Stephen M. Weiss
Law Office of Ball & Yorke
Jay Fleischman
James Morris
Darryl Young
Shaev & Fleischman LLP
Weitz and Luxenberg
Law Office of Darryl E. Young, P.C.
Joseph Gallardo
Brittany Nicol
Davis Zellmer
Law Offices of Mark E. Grossman
Frederick Law Firm
Attorney at Law
Kevin Panahi Panahi Law Group
136 â&#x20AC;&#x201D; The Advocate Magazine
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Photo courtesy of Los Angeles Daily Journal
MEDIATIONAWARENESSWEEK
From left: Los Angeles City Attorney Mike Feuer; David M. Ring, vice president of the Consumer Attorneys Association of Los Angeles and a partner at Taylor & Ring; Daniel Ben-Zvi of ADR Services Inc., who chairs Mediation Awareness Week; Joseph C. Markowitz, president of Southern California Mediation Association; L.A. City Councilman Paul Koretz, who sponsored the event; Lucie Barron, founder and president of ADR Services Inc.; Robert A. Olson, president of the Association of Southern California Defense Counsel and a partner at Greines, Martin, Stein & Richland LLP; and Songhai Miguda-Armstead, director of city attorney’s dispute resolution program.
CAALA Resource Center ConsumerAttorneysAssociationofLosAngeles
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Calendar Consumer Attorneys Association of Los Angeles
Board & Committee Meetings Executive Committee CAALA Offices Downtown Los Angeles 6:00pm Oct 2, Nov 6, Dec 4
800 West Sixth Street,#700 Los Angeles, CA 90017 (213) 487-1212 www.caala.org
Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Oct 16, Dec 11
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CAALA
Advertiser’s Index
ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Corcoran, Tim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . . .108 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Hanger, Bob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Horton, Jay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . . .106 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . . . .58 Sepassi & Tarighati, LLP . . . . . . . . . . . . . . . . . . . . . . . . . .21 Watkins, Shirley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100
Attorneys – Accepting Referrals (cont.) Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . . . .17 Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 McGonigle, Timothy . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . . . .9 Mesriani Law Group . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . . . .63 Panish Shea & Boyle . . . . . . . . . . . . . . . . . . . . Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . . .25 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Seegmiller, Bruno & Rowley Firms . . . . . . . . . . . . . . . . .39 Shegerian & Associates . . . . . . . . . . . . . . . . . . . . . . . . .13 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . . . . .93 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Senators Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Your Legal Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
Announcements and Career Opportunities CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . . .133 CAALA PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131 CAALA VEGAS Sponsors . . . . . . . . . . . . . . . . . . . . . . .135 Los Angeles Trial Lawyers’ Charities . . . . . . . . . . . .33, 35
Court Reporters Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . . . . .61
Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54 Mahacek, Jim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Steven B. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Attorneys – Accepting Referrals Atighechi Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .107 Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Campbell & Farahani, LLP . . . . . . . . . . . . . . . . . . . . . . . . .4 CaseyGerry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Cheong Denove Rowell & Bennett . . . . . . . . . . . . . . . . .87 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Dolan Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . . . . .70-71 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . . . . .67 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83 Gelber, Bruce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck LLP . . . . . . . . . . . . . . . . . . . . . . .40 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . . . . .51 Law Offices of Marc I. Zussman . . . . . . . . . . . . . . . . . .139 Law Office of Michels & Lew . . . . . . . . Inside Back Cover
138 — The Advocate Magazine
Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . . . . .32 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116 Expert Witnesses – Medical Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . . .109 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . . . . .86 Expert Witnesses – Technical & Damages Accessible Design & Consulting, Inc. . . . . . . . . . . . . . .121 Balian & Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . .124 Boster Kobayashi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103 Collins, Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122 Occupational Assessment Services, Inc. . . . . . . . . . . . . .89 Phillips, Fractor & Company . . . . . . . . . . . . . . . . . . . . . .94 The TASA Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . . .123 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .119 Farber, Patrick (Struct. Settlements) . . . . Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Millennium Settlements . . . . . . . . . . . . . . . . . . . . . . . . . .99 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 Summit Structured Settlements . . . . . . . . . . . . . . . . . . . . .50 Tom Stevenson Associates . . . . . . . . . . . . . . . . . . . . . . . .37
SEPTEMBER 2014
Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Oct 16, Dec 11 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Oct 14, Nov 18
Financial Services (cont.) Valdez Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104 Zea, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122 CSC Anatomy Arts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Legal Graphics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 MotionLit Video Group . . . . . . . . . . . . . . . . . . . . . . . . . .14 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Information Service Providers West, A Thomson Reuters Business . . . . . . . . . . . . . . . . .97 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . . . .73 Lawyers Pacific Insurance . . . . . . . . . . . . . . . . . . . . . . . .23 Matloff Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Investigators Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . .104 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 PJ West & Associates . . . . . . . . . . . . . . . . . . . . . . . . . . .106 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125 Legal Support Services 4 Corners Deposition Summaries . . . . . . . . . . . . . . . . .119 USA Express Legal & Investigative Services . . . . . . . . . .66 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Glendale Surgery Center . . . . . . . . . . . . . .44-45, 110-111 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 North Valley Eye Medical Group . . . . . . . . . . . . . . . . . .78 Parehjan & Vartzar Chiropractic . . . . . . . . . . . . . . . . . . .48 Total Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113 Polygraph Investigations Trimarco & Associates . . . . . . . . . . . . . . . . . . . . . . . . . .115 Software HiPerSoft Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . .69
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I refer all of my securities cases to Marc Zussman and I have also worked with him. He is an excellent lawyer. — Brian J. Panish Attorney
Refer your Securities Arbitration (FINRA) or Litigation Cases for a Generous Referral Fee. With a success rate greater than 90%, we are well equipped to maximize your clients’ recovery on a wide variety of securities law-related matters. We take pride in our referral relationships and our ability to share attorneys’ fees with referring attorneys. We represent investors who have lost money due to mismanagement of their portfolio by their investment professionals. We accept cases from the 2008/2009 market crash.
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Fax: (310) 881-6805
Visit our website for more info:
www.zussmansecuritieslaw.com mzussman@zussmansecuritieslaw.com 10250 Constellation Boulevard, Suite 2900 Los Angeles, CA 90067
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From the President Geoffrey Wells
Consumer Attorneys Association of Los Angeles
Never give up! Don’t let fear paralyze you. Move on and fight Proposition 46 saves lives and helps get justice for your neighbors, clients and fellow citizens. Tell everyone you know, and people you don’t know, about it. Many of our members have stepped up and donated so that we can get the message out to voters for the November elections. Some of our members haven’t donated and have come up with many excuses. The one I like the best is, “I don’t want to contribute because I am afraid we are going to lose.” Really! Is that a legitimate excuse? I recently read Colin Powell’s book on life and leadership. He recalled speaking at a private high school in Japan. After his speech, the students were invited up to the microphone to ask questions. After a few minutes, he quickly realized that the teacher had designated only honor roll kids who were reading from pre-printed cards that had questions which were prescreened by the teacher. He decided to break up the pattern and pointed to some students who were sitting in the very back of the class (where he would have been sitting when he was a teenager). One girl, about 1314 years old, raised her hand and General Powell called on her. “Are you ever afraid?” she asked. He responded, “I am afraid every day.” She continued, “I am afraid to fail.” What a brave question! General Powell responded by saying, “I am afraid of something every day and I fail at something every day.” He went on to state, “fear and failure are always present. Accept them as part of life and learn how to manage these realities.” 140 — The Advocate Magazine
The room went completely silent. Every one of those high achieving kids had the same question in their mind but were too scared to ask it in front of their peers. General Powell concluded by saying, “if and when you fail, fix the causes and keep moving forward.” As trial lawyers, we always hear and read about the big verdict and the amazing result on the seemingly impossible case. But rarely do trial lawyers ever talk about our fear of failure... our fear of losing! Every trial lawyer I know has lost a case. When we lose, it hurts badly and usually our clients are devastated. But, they had their day in court and usually after some time passes, they move on. You must move on too! Never let the fear of failure paralyze you in your practice or your life. Learn from it, fix it, if you can. But move on and continue fighting. Recently, Stuart Scott gave a speech at the ESPYS after receiving the Jimmy Valvano Award. The speech was so powerful I was moved to tears watching it. Mr. Scott made reference to Jim Valvano’s seven words – “Don’t give up, don’t ever give up.” He then went on to offer some of the most insightful points about life I have ever heard. He said in reference to cancer that “dying doesn’t mean you lost to cancer...winning is how you lived when you know you are going to die.” Wow! What a statement to live by. One of my all-time favorite movies is a film called “The Last Samurai.” It involves the story of a washed-up Army Captain who fought against the Native American warriors under General Custer. He had spiraled into alcohol
SEPTEMBER 2014
and depression until he was hired by a Japanese emperor to come to Japan and teach the Japanese Imperial Army how to fight western style against the traditional Samurai tribal warriors. Ultimately, Captain Algren (Tom Cruise) was captured by the Samurai and although held captive, began to learn about the importance of a life worth living. There was a huge battle and, in the end, the Samurai leader (Katsumoto) died on the battlefield next to Cruise (who survived). The young emperor of Japan was very distraught at the death of the Samurai leader because he knew the whole country had lost a spiritual leader. The emperor summoned Captain Algren to the Palace and asked him if he was with the Samurai leader when he died. He was told “yes he was.” He asked Captain Algren if he could tell him how he died. Captain Algren responded “No, let me tell you something more important... let me tell you how he lived!” When you look back at your career as a trial lawyer and someone asks you about your career, be proud to tell them “how you lived” as a lawyer who represented real people… how you made a difference in real peoples’ lives… how you donated to help schools, teams and how you helped find social justice for families whose loved ones were injured or killed due to the negligence of another. Be sure to write your story about how you fought for justice and never be afraid to fail!
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