The Benefits of Neutral Evaluation

Hon. Anne Ellington (Ret.), JAMS mediator and arbitrator

Hon. Anne Ellington (Ret.), JAMS mediator and arbitrator

When we are immersed in a case, we all tend to get blinders on. Client hopes and expectations, and our commitment to them and to their cause, can lead us to underestimate the other side and be overconfident about our case. Good lawyers routinely seek consultation in the drafting of important documents. Why not in the preparation for trial or arbitration? A second and neutral pair of eyes can save your case and your sanity.

What is it?
An experienced, objective and disinterested former judge or attorney works directly with counsel to provide a candid, confidential and objective assessment of a case or any part of the case, at any stage —before filing, summary judgment, trial or arbitration, before and upon appeal—whenever an outside view can be useful. A neutral evaluation may consider such factors as process, law, decision-makers, substance or evidence issues and potential outcomes.

At almost any stage, an evaluator can be useful: an objective view of facts and arguments, the value of your case, feedback/suggestions toward effective presentations, settlement posture. In some cases evaluators even interview key witnesses, or make presentations to Boards of Directors, or otherwise engage with clients. Indeed, one of the great values of neutral analysis is help in managing client expectations.

A neutral evaluation can be short and sweet, or extend sporadically through the life of the case. The evaluator works directly for you, to provide a candid and confidential assessment for your consideration.

When to do it?
At any point in a case, depending on your purpose. Each stage offers a possibility for a neutral evaluation to be useful:

Used early a neutral evaluation can help you and your client decide whether to proceed at all, balancing the expense of litigation and the likelihood of success. The neutral evaluator can help with identifying the unknowns and their importance, identifying the potential legal theories and the necessary elements of each, assessing the risks, prioritizing discovery, and so on. Or the neutral can offer a private assessment of claims brought against your client and how to respond to them.

Once the game is on, a neutral evaluator can help analyze a single issue, or all the issues, or frame a summary judgment argument. Are there any holes in your case that you need to close before discovery closes? What are your strongest arguments and how do you make them? Your opponents’ strongest arguments? Which arguments are just distractions? Do you move for summary judgment? For discovery or for real? What are the likely settlement options? What are the key jury instructions? Where do you need to be careful about preservation of error?

What about after trial or arbitration? Experienced appellate counsel often seek a neutral evaluation of the briefs (any appellate judge will encourage all attorneys, no matter how experienced, to have a nonparticipant who is literate in appellate advocacy review your briefs closely before you file them). Very often, appellate advocates conduct moot arguments to a panel that includes former appellate judges.

What about the expense?
Clearly there must be enough at stake to justify the expense. The cost depends upon the assignment: two or three hours to evaluate specific issues and discuss strategies with counsel will cost relatively little. Consultation at several stages may come to much more.

The point is that you have complete control: first, because the letter of agreement will specify the time allotted, and second, because you determine what tasks and materials are included in the evaluation. The process can take whatever form is useful to you, including written evaluation, informal conversation, meetings with clients and boards of directors – whenever you and your case can benefit from a second set of (experienced) eyes.

In short, an evaluator provides experience, confidentiality, candor and neutrality.

Brexit – the end of Pan European Patent Dispute Resolution?

Richard Price, JAMS International mediator and arbitrator

Richard Price, JAMS International mediator and arbitrator

For more than 40 years, resolving European cross-border disputes about patents in one proceeding has been a dream.

Why is this so? Many people, in business, in-house and private practice lawyers around the world and members of the European judiciary, plus civil servants, invested a huge amount of time and thought in producing a pan-European litigation system which had a good chance of working. It would not be suitable for every dispute, but it had excellent prospects of working for many. The reason is that it was a creative and practical blend of the civil law and common law systems which underlie the EU. The national civil law jurisdictions typically have no live witnesses, no cross-examination, no discovery. The national common law systems , or ones like them as in Denmark, have all of those. The genius of the UPC was to introduce fact and expert evidence, cross-examination of witnesses and limited discovery of documents in a targeted way. And to get to trial in 12 months.

A central court would have three divisions: in France, the UK and Germany.  The UK had influence and an ultimate participation in excess of its geographical size: because of its greater experience in forensic litigation which cross-border disputes covering more than 500 million citizens demanded and merited.  The Brexit vote may have put an end to all of this.  The UPC is an EU vehicle. If the UK is out of the EU, it cannot be part of the UPC.

Is there a hope?  There is and this is why:

  1. Brexit may be reversed or watered down – the vote in favor is often described in the media and by politicians as “clear;” but in fact it was relatively tight at 51.9 to 48.1 percent (whereas the vote to join in 1975 had been by 67 percent of the votes cast ). It was also was advisory, not mandatory. Article 50 of the Treaty on European Union (as amended by the Lisbon Treaty of 2007 ) has to be triggered to start the process of withdrawal and to negotiate on what terms. The English High Court ruled (November 3, 2016) that the UK government may not trigger Article 50 without the consent of the UK Parliament. Members of both Houses were heavily in favor of Remain. The appeal to the UK Supreme Court is due to be decided in January 2017.
  2. The UPC may survive – If it is no longer an engine of the EU, but (like the European Patent Office) is created by convention (or treaty), the UK can continue to be a participant.
  3. Pan-European patent disputes may be resolved by arbitration – the week after the Brexit vote I was in Germany. I was expecting a frosty reception from German patent lawyers and others. Not a bit of it. They were dismayed and sad. They regard UK as their strongest collaborator, both in the EU generally and in the planned UPC in particular. Two German lawyers separately said to me that this was a real opportunity for pan-European patent disputes to be resolved by arbitration using, if the parties wished to, procedures similar to those envisaged for the UPC.

Options 1 and 2 could take years. In the meantime, and possibly in any event, option 3 deserves serious consideration by parties who want a resolution across Europe, and beyond.

There has now been a further development in this long-running saga. On November 28, 2016, the UK’s IP Minister, Baroness Lucy Neville-Rolfe, made a statement to the EU Council’s Competitiveness Commission. Before the European unitary patent and the UPC can come into force, 13 EU countries have to ratify the founding Agreement. Of those, France, Germany and the UK must all ratify or the system will not come into operation.

In her statement on November 28, Neville-Rolfe said that the UK is set to ratify the unitary patent and the UPC. However , she did not say when the UK would ratify. Until that happens, the new system will be on hold. In practice it is likely it will be put in the mix with all the other many issues the UK and the EU have to resolve once the negotiations start. Those negotiations will only start once the UK gives notice under Article 50 of the Treaty. Whether or when will depend on the Supreme Court decision expected in January 2017.

While all this is going on, uncertainty continues. For business, this is unsatisfactory. For some parties to patent disputes spread across Europe and indeed beyond, arbitration provides a business solution which may be attractive.

In any event, watch this space!

Richard Price is a panelist with JAMS, based in London. He can be reached at rprice@jamsinternational.com.

Settle Now, Argue Later: Expedited Construction Adjudication Is Coming to North America

Phil Bruner, Mediator and Arbitrator, JAMS Mediation, Arbitration & ADR Services

Phil Bruner, Mediator and Arbitrator

Construction adjudication, the dispute resolution method credited with reducing construction litigation by more than 80 percent in the United Kingdom, is coming to North America. The adjudication method requires disputes arising during construction to be submitted to an adjudicator for a prompt initial decision that is binding until completion of the contract, and subject to challenge in arbitration or litigation only thereafter. Construction participants wryly refer to it as the settle now, argue later approach to final dispute resolution.

Adjudicators with expertise in construction and selected by the parties seek to make their decisions within 30 days of submission of the disputes. Adjudication thus offers a more structured process than the neutral evaluation or expert determination dispute resolution methods. Although parties may challenge the adjudicator’s decision after the contract is completed, British experience is that parties accept the adjudicator’s decision in nearly 85 percent of the cases and thus avoid later litigation altogether. Continue reading