SIDEBAR

The injured student sued the other student and the school district. Plaintiff alleged the school district was negligent for inadequate supervision. Plaintiff’s meds were approximately $50,000. Plaintiff made a significant pretrial demand. Before trial, the school district made a nominal offer. The jury ultimately found for the defense.

Jill Ormond and Steven Crocchi of Gordon Rees Scully Mansukhani, LLP obtained a favorable summary judgment ruling on behalf of a national hotelier. The Plaintiff was rear-ended on the golf course and sued the hotel under theories of negligence, common law and statutory dram shop liability, premises liability, and negligent entrustment arguing that the hotel overserved the tortfeasor who rear-ended him. The Court granted the hotel’s motion for summary judgment on statutory and common law dram shop liability, finding that there was no evidence that the hotel served alcohol to the tortfeasor or that the hotel knew the tortfeasor was intoxicated.

By: James D. Smith, Esq. Osborn Maledon

Eadie Rudder invited me to pen some thoughts for Common Defense after I resigned from the superior court bench. The request was flattering because you soon learn when you’re no longer a judge that people don’t find your comments as insightful or entertaining. It also is easier to find topics as a judge—with about 550 cases on a standard civil docket, something always comes to mind. Understandably, I often write about evidence, procedural rules, and trial. Those topics interest me! So my first column in Common Defense will offer great advice about a thorny trial tactic, right? No.

Why not? Remember that about 0.8% of civil cases go to trial in Maricopa County. The percentage in federal court is similar. I don’t know of a jurisdiction in the United States that is much different. Yes, lawyers need all the tools—solid legal analysis and writing, written discovery, depositions, effective oral argument, rule mastery, and trial/appellate skills. But all those skills are part of the overarching reason your clients hire you: to solve problems. The types of problems vary with legal practices. An ERISA expert is solving different problems for her client than a medical malpractice defense trial lawyer is solving for his. Clients, however, typically want the lawyer to fix “it” or make “it” go away. Often, attaining that goal requires focusing on many things other than how you’ll try a case.

Some of being a problem solver means explaining to the client likely outcomes in realistic and blunt terms. You’re not fixing “it” if you express false bravado to the client. That reality carries through to settlement conferences and mediations. You’re not using those properly if you think they’re just opportunities to be adversarial with your opponent. And you need to tell your client as much! Digging in intractably— whether in a mediation or elsewhere—typically doesn’t solve problems. I lost track of how many times lawyers told me, “Judge, I think this is just one of those cases that needs to go to trial, ” when it absolutely didn’t and they settled on the eve of trial (after spending a lot more time and money

Solving problems means finding solutions. Often, those solutions aren’t obviously related to the legal merits. When you have several insurers involved, it could mean creatively allocating a settlement among those carriers and helping separate lawyers or claims adjusters understand why that is the best solution. It might mean working with plaintiff’s counsel to find creative solutions for payment structures, the timing of payments, and such.