Understanding the benefits of a private judge in California

Hon. Patrick J. Mahoney (Ret.)

Hon. Patrick J. Mahoney (Ret.)

Civil litigants, how would you like to have a process that allows the parties to determine the decision-maker, preserves all civil remedies and appellate rights and ensures effective case management and hearing and trial dates that proceed as scheduled? This process has all of the perceived benefits of arbitration while ensuring the result is subject to appellate review.

California has just such a procedure. The California Constitution, Article VI and the Code of Civil Procedure section 638(a) authorize the parties to stipulate to a private judge and to fashion the authority granted to the person selected. Stipulations vary in scope from a narrow discovery issue to all aspects of civil litigation including the right to act as the settlement judge as well as the trial judge. This affords the parties the opportunity to control the litigation process that does not exist in the court system, and ensures that the decision-maker has the time to consider the issues and to provide the parties with hearing and trial dates that proceed as scheduled.

Given these benefits, it is surprising that this process is neither widely known nor utilized except in family law cases involving substantial wealth. One reason is the right in most civil cases to have the case decided by a jury. Neither the California Constitution nor the Code of Civil Procedure address the jury trial right, and it is unlikely that the state courts are prepared to use their strapped resources to summon jurors for parties’ utilizing private judges.

Recently at JAMS, this issue was addressed by the parties stipulating to the use of jurors located by a jury consultant firm. The lawyers conducted voir dire and the jurors were paid for their services. The parties used the jurors to decide test cases to provide markers for settlement of a large class of cases. In the recent ABA Litigation magazine (Volume 41, No. 4, Summer 2015), there is a description of a private trial of a business case using jurors where the lawyers agreed that the verdict would be treated as an arbitration award.

Both of these approaches involved giving up substantive appellate rights. A viable alternative is for the parties to give up appellate rights only related to jury selection, while preserving all other substantive and procedural grounds for appeal. In reality, little is given up by waiving this right for it is extremely rare for a civil case to be reversed based on jury selection. As a consequence, in a case that warrants use of a private judge, the obvious benefits of a private judge trial out-weigh the right to challenge jury selection.

If you believe your case would benefit by using a private judge to manage and decide the case, do not be put off by your opponent’s insistence on a jury trial. There is more than one way to secure the benefits of a private judge and the insight provided by a jury verdict.

There’s Always Time for a Second Opinion

The litigation process is full of variables and, no matter how strong a party’s case might be, going to trial is rarely a sure thing. There is also a tendency for counsel and clients to be overconfident in their assessments of their position. Thanks to the evolution of ADR, however, parties have many options available to them to secure an unbiased, neutral evaluation or second opinion about the strengths and weaknesses of a particular case and trial strategy.

There are a full range of circumstances in which a second opinion from an experienced lawyer or former judge might be useful:

Pre-filing assessment: Deciding whether or not to file a case, and what claims to make, is a difficult decision. Input from a veteran law and motion judge, who has likely seen thousands of motions to dismiss, could effectively eliminate the risk of wasting time and money on unproductive pleading wars. An experienced neutral can also provide valuable information for a cost-benefit analyses of going to trial.

Case valuation in advance of settlement discussions or mediation: Second opinions from an experienced neutral about how to value a case for settlement purposes could be especially important for clients and counsel. Sometimes clients and lawyers need a second opinion to feel the confidence necessary to make difficult decisions and an objective assessment of the whole situation can be particularly valuable.

Mock hearings: Lawyers generally reserve mock trials for big cases that will be presented to a jury. However, it can be very valuable to secure a neutral evaluation of any aspect of a case to be presented to a judge or during administrative hearings. A second opinion based on a mock proceeding, for example, could be very useful in advance of a motion to dismiss, for summary judgment, class certification or even on especially significant motions in limine. On a more recently developing front, IP lawyers might find neutral second opinions especially useful when preparing to appear before a panel of administrative law judges in an inter-parties dispute in a Patent Trial and Appeal Board proceeding.

Preparing for an appellate briefing: Lawyers grappling with challenging appeals also can benefit substantially from second opinions about the content and style of their briefs, the manner in which they make oral arguments, and, most significantly, the strengths and weaknesses of their substantive positions. Retired appellate judges can alert counsel to key issues and vulnerabilities and can give lawyers opportunities to practice fielding difficult questions or dealing with difficult judicial personalities – thus both improving their performance and reducing the anxiety they experience when the real show begins.

As ADR becomes a more prominent feature of our legal system, it is important that counsel and clients understand the full range of options available to them. This is particularly true for neutral evaluation or second opinions, which provide valuable insights into the strengths and weaknesses of a case, helping to mitigate uncertainty while saving time and money.

Why are Attorneys Afraid of Conflict in Mediation?

Jeffrey Grubman, Esq.

Jeffrey Grubman, Esq.

By Jeffrey Grubman, Esq.

The mediation process has evolved significantly over the past few decades.  Mediation was initially viewed skeptically by trial attorneys who viewed themselves as warriors who preferred to try cases rather than settle them.  Those same trial lawyers believed that if settlement was appropriate, they certainly did not require the assistance of a third party to effect the settlement.  They would pick up the phone and call their opposing counsel and either work things out on their own or try the case.

As courts around the country become overburdened, mediation became a popular forum to resolve disputes.  Many courts throughout the country require cases to be mediated before the case can go to trial.  Consequently, attorneys have been forced to participate in mediation.  Because trial attorneys were not accustomed to the mediation process, the process initially looked somewhat like a court hearing or a trial.  For example, in the early days of mediation, opening statements in mediation looked and sounded very much like an opening statement at trial.  Trial lawyers in the early days of mediation, and some trial lawyers still today, had a difficult time finding the balance between advocating their client’s position while proceeding in a conciliatory manner with settlement being the goal of the mediation.

Largely due to attorneys’ discomfort with finding that balance, it became commonplace in many parts of the country for attorneys not to make opening statements in mediation. A well prepared and delivered opening statement goes a long way towards achieving a favorable settlement for one’s client.

The custom of not make opening statements in certain parts of the country and in certain substantive case types has now led to not even having a joint session during some mediations.  Except in the rare situation where there is the potential for violence, this is a mistake.  The parties and their counsel should at least be willing to sit in the same room with one another for some period of time while the mediator explains the process and lays the groundwork for a productive day.

When there is a joint session, many attorneys instruct their clients not to say anything during that session.  These attorneys apparently believe either that their clients will say things that could hurt the client’s case or the client or the adversary will say things that could upset the other person and thereby make it harder to settle the case.  The confidentiality that blankets the entire mediation process should ameliorate an attorney’s concern about his or her client saying something that court hurt the case.  The fact that a litigant may say something that will upset the other party is not enough of a reason not to allow parties to speak.  First, the fact that the parties are engaged in litigation is evidence enough that the parties are not happy with one another.  Nobody should be surprised or devastated when one of the parties says something the other party does not like.

For more on Mr. Grubman’s discussion on being afraid of conflict in Mediation, please read the full article from Law.com by clicking here.

Mediator’s Proposals: God’s Gift to Mediation, or a Betrayal?

By Martin Quinn

Martin Quinn

Martin Quinn

Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system.  The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path.  Early mediations were usually conducted without counsel in a highly facilitative model in which the parties and the mediator remained together for all or most of the session.

This model in legal mediations has, of course, largely given way as attorneys entered, and came to dominate, the process.  Legal mediation today relies heavily on private caucusing and has largely abandoned any substantive joint session.  Mediators are likely to be highly directive, if not explicitly evaluative, in pushing the parties to an agreement.  Party autonomy has receded, while the power of attorneys and the mediator to influence the result has expanded.  One result of this evolution is the growing use of the mediator’s proposal to bring about closure.

A frequently employed tactic, the mediator’s proposal, works like this: The parties have exhausted their ability to negotiate further.  Neither side can in good conscience accept further compromises.  But they are close enough to a deal that both sides appreciate that a final effort makes sense.  Assume plaintiff is demanding $250,000, and defendant has offered $190,000.  The mediator proposes a dollar number (or more detailed terms) between the two positions, based not on a legal evaluation of the case but on the mediator’s judgment as to a number that both sides are most likely to accept.  A mediator may tell the parties that her proposal has nothing to do with Truth and Justice, but is the number her stomach tells her is most likely to draw two “Yes” responses.  Each side may say “Yes” or “No.”  If there are two “yes” responses, there is a settlement.  If there is a “Yes” and a “No” or two “No’s,” the mediator says only that there is no settlement — without revealing the responses of either side.  Therefore, each side knows that it may respond “Yes” secure in the knowledge that its compromise will never be disclosed unless there is a deal.

A busy legal mediator reports that he now uses a mediator’s proposal in about two-thirds of his cases.  Why?  First, it works.  Neurological research teaches that reactive devaluation – the tendency to reject any proposal from an opponent – diminishes greatly when a neutral proposes the compromise.  Second, attorneys with mediation experience have come to expect a mediator’s proposal and negotiate accordingly:  intentionally leaving bargaining room open knowing that the mediator will propose the one final compromise.  Thus cases that would likely have settled through party negotiation alone now arrive at impasse as each side anticipates a mediator’s proposal.  Third, a mediator’s proposal allows the party representatives to feel — and to tell their bosses — that they held firm but the mediator “made them do it.”

For more on Mr. Quinn’s discussion on Mediator’s Proposals, please read the full article from Law.com by clicking here.