Checklists to Save Clients Time and Money in a Big Case

Hon. Richard A. Levie (Ret.)

Hon. Richard A. Levie (Ret.)

by Hon. Richard A. Levie (Ret.)

As litigation becomes more expensive and time-consuming, the reality is that only 1 to 2 percent of cases are disposed of with a jury verdict.  In these circumstances, the overwhelming financial cost of litigation is in the discovery and pretrial stages; the major, indirect, non-financial cost is the loss of employee time spent assisting counsel in trial preparation.

One way to minimize costs and maximize efficiency is through use of a Special Master.  While Special Masters can serve in many roles, including as settlement masters, the most frequent use (and the one considered here) is the adjudicative function of overseeing discovery and resolving discovery and privilege disputes.  The ultimate goal of the Special Master is to save time for judicial officers and reduce the litigation costs for the parties.  The following are checklists that may aid in determining whether and when to use a Special Master.

  •  Pre-litigation checklist
    • Is this a “big” case measured by anticipated cost and amount of resources to prepare and try, or by the potential impact of a bad litigation outcome?
    • Is it anticipated that there will be discovery disputes?
    • Will there be e-discovery issues and disputes?
    • Are there likely to be disputes over claims of privilege or work product protection?
    • Is there a need to have immediate or easy access to a decision-maker?
    • Is this a time-sensitive case where there is a need to move discovery along on a short, efficient timeline?
    • Is there a benefit to working with a neutral third party who has the trust and confidence of the parties and/or the presiding judicial officer?

To see the rest of Richard Levie’s checklists to save clients time and money, please read the full article from Law.com by clicking here.

Arbitrator Selection

Kim Taylor, Esq.

Kim Taylor, Esq.

by: Kimberly Taylor, Esq.

Much has been written in recent years about whether arbitration has lived up to its billing as a “better, faster, cheaper” alternative to litigation.  No matter one’s views about this, litigation is undoubtedly very costly, and wise counsel must look for ways to reduce unnecessary costs and time delays.  Unlike litigation, arbitration affords the parties much control over the process, including the selection of the arbitrator, arguably the most important decision in the process.

Also unlike litigation, if parties are unhappy with the decision of the arbitrator, there is very little recourse, because a fundamental tenet of arbitration is finality.  Grounds for vacatur are limited, and unless the parties have selected an appellate arbitration remedy, the arbitrator’s decision will likely not be overturned.  Therefore, selection of the arbitrator is a critical step.

Institutional rules generally provide a process for selection of the arbitrator if the parties cannot agree amongst themselves, often by use of a “strike list,” where several arbitrators are proposed and parties are permitted to strike names until an acceptable arbitrator remains.  Matters calling for a tripartite panel are handled differently, as each party usually selects its own party arbitrator (assumed to be neutral, but the parties can agree otherwise), and those two arbitrators select a neutral chair.  Having three arbitrators on the arbitral panel can alleviate the concern that a single arbitrator may not apply the law correctly and can justify the additional cost.

Whether the matter is to be determined by a sole arbitrator or a tripartite panel, there are important considerations to keep in mind in selecting the tribunal.  First and foremost, counsel should review the language of the arbitration clause, as it often dictates the qualifications of the arbitrator.  Second, counsel should review the arbitration laws of the place where the tribunal will sit.  Certain jurisdictions have restrictions regarding the nationality of members of domestic arbitration tribunals.  Beyond that, what should counsel look for when selecting an arbitrator, and how should those qualities be investigated?

Above all, parties want to select as their arbitrator someone who is familiar with the law and has a track record of fairness.  Certain disputes require someone with significant subject matter expertise (e.g., patent disputes, engineering and construction, entertainment, employment), so it is important to review the background and prior caseload (whether as a former judge, arbitrator or practitioner) to determine whether the proposed neutral has the requisite background to understand the unique facts and legal issues at stake.

To learn more about arbitrator selection, please read the full article from Law.com by clicking here.

“Raging Bull” Decision Highlights Importance of ADR in Entertainment Disputes

Jeffrey Grubman, Esq.

Jeffrey Grubman, Esq.

by Jeffrey Grubman, Esq.

“Raging Bull” is a classic 1980 motion picture directed by Martin Scorsese and starring Robert De Niro as boxer Jake LaMotta.  In the case of Petrella v. Metro-Goldwyn-Mayer, Inc., the United States Supreme Court recently ruled that MGM can be sued for copyright infringement more than three decades after releasing the movie.  The case was filed by Paula Petrella, the daughter of Frank Petrella, who co-wrote and sold his rights to the screenplay used to make the movie.  Mr. Petrella died in 1981, and his rights transferred to his daughter, who claims that MGM needed her permission to continue to exploit the screenplay.

Although Ms. Petrella initially contacted MGM in the 1990s, she did not bring suit until 2009.  The district court granted summary judgment for MGM, and the Ninth Circuit Court of Appeals affirmed on the grounds that Ms. Petrella’s claims are barred by the equitable doctrine of laches, which bars a plaintiff’s recovery due to an undue delay in seeking relief.  However, like all copyright infringement claims, Ms. Petrella’s claim is subject to a three-year statute of limitations.  Therefore, Ms. Petrella was seeking damages only for the three years prior to the date she filed suit, attempting to benefit from DVD sales associated with a 25th anniversary edition.

The Court reversed and held that “in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief.”  In other words, a copyright owner can wait idly for years, or even decades, and still file suit to collect damages for the three years prior to the filing of the suit.  This decision has far-reaching implications.  Given new revenue sources associated with constantly evolving forms of distributing content, content owners who may have abandoned any hope of recovery may now file suit.  Also, people who believe (rightly or wrongly) that their works of art have been infringed, but dismissed any hope or expectation of collecting damages due to lapse of time, are now likely to sue.  Consequently, the Petrella decision could lead to a floodgate of potential litigation.

Even before the Supreme Court’s decision in Petrella, intellectual property / entertainment matters were ideally suited for mediation and other forms of ADR.  The importance of secrecy and privacy, the need for expertise and the flexibility that ADR offers are three reasons why intellectual property and entertainment practitioners should use ADR as much as possible.  The additional number of claims and the nature of the claims likely to result from the Petrella decision further reinforce the importance of ADR for entertainment matters.

To continue learning more about the importance of ADR in Entertainment disputes, please read the full article from Law.com by clicking here.

A Primer on Arbitrability

Richard Chernick, Esq.

Richard Chernick, Esq.

By Richard Chernick, Esq.

Drafters of arbitration clauses must understand the concept of arbitrability if the parties’ objectives are to be achieved.  Arbitrability is the portmanteau for several distinct concepts:

  • Is the clause/agreement enforceable?
  • What is the scope of the clause, i.e., what disputes are subject to the parties’ agreement to arbitrate?
  • Who, in addition to the signatories, will be required or entitled to participate in the arbitration?

Is there an agreement to arbitrate?

The Federal Arbitration Act (FAA) requires a finding of an enforceable arbitration agreement before a court may compel arbitration.  The FAA makes agreements to arbitrate valid, irrevocable and enforceable, “save on grounds as exist in law or equity for the revocation of a contract” (9 U.S.C. § 2).  State arbitration statutes (e.g., California Arbitration Act, Code Civ. Proc. § 1281) are similar.

The existence of an agreement to arbitrate is determined under state contract law principles as to the formation of contracts.  The savings clause (FAA § 2) further allows for the assertion of defenses to enforcement, also per state contract law, on grounds for “revocation” of contract (e.g., fraud, duress, illusory agreement, illegal agreement, incapacity, apparent or actual authority, unconscionability).  The FAA may preempt state law, however, where (1) it does not operate neutrally as to all agreements (see Doctor’s Assocs., Inc. v. Casarotto (1996)) or (2) the state law is anti-arbitration and thus violates the underlying principle of the FAA that arbitration is a favored process (see AT&T Mobility LLC v. Concepcion (2011)).

To learn more about Arbitrability, please read the full article from Law.com by clicking here.