California Mediation and Arbitration

Miscellaneous: Note To Readers: We're Back !

Typepad Has Cured Its Problems.

        I have been using the Typepad platform since 2012 to post this blog. Typepad recently had problems with its system, and I stopped posting until I felt assured that the system was stable. Now the problems, whatever their origin, appear to be fixed. So I hope to catch up on my posting.

Miscellaneous: Attorney Fees: A Potential Malpractice Minefield

We've Authored An Article About Attorney Fees And The Risk Of Malpractice Exposure In The October 2022 Issue Of Orange County Lawyer.

        "Attorney Fees: A Potential Malpractice Minefield," authored by Marc Alexander and appearing in the October 2022 issue of Orange County Lawyer, discusses the "unhappy case" of Shahrokh Mireskandari v. Edwards Wildman Palmer, 77 Cal.App.5th 247 (2022), and its implications for legal malpractice when the risks of attorney fee shifting are (allegedly) not carefully analyzed and disclosed to the client.

        Proving legal malpractice typically follows "the familiar case-within-a case method for establishing causation in litigation malpractice cases." The plaintiff-client needs to establish not only the negligence of the attorney, but also that the client would have won the underlying case but for attorney negligence. Mireskandari, however, is not a typical case, for Mireskandari's malpractice claim did not depend on prevailing in the underlying action. Instead, his malpractice claim depended on being able to prove that the "outcome" would have been better had he received different legal advice, never filed a lawsuit, and never been exposed to the risk of anti-SLAPP attorney fees. 

        The "case-within-a case" method of establishing a malpractice claim is simply an example of a more general principal, namely, that but for attorney negligence, the outcome of a case would have been better for the client. This is not exactly a bright line.

        Perhaps the most important lesson is that a careful attorney will analyze attorney fee issues early in the litigation process, and inform the client of those risks. While this may be easy in a simple case where a contract contains a "prevailing party attorney fees clause," there are numerous situations in which the risk of fee shifting is less obvious. The article describes some attorney fee situations that create a potential malpractice minefield.

Happy July Fourth To All Our Readers!

 

 

Library of Congress. "The flag that has waved one hundred years--A scene on the morning of the fourth day of July 1876."

 

Miscellaneous: Podcast Interview Of Marc Alexander And Mike Hensley On Subject Of California Attorney's Fees

California Appellate Law Podcast.

         My colleague Mike Hensley and I have published the California Attorney's Fees Blog since 2008. Tim Kowal and Jeff Lewis, the creators of the California Appellate Law Podcast, recently interviewed us on their podcast. Here's a link to the interview on Tim and Jeff's podcast. Thanks, Tim and Jeff, for the opportunity to participate on your excellent podcast. Our interview is the 28th episode on the podcast.

Miscellaneous: On The Exchange Of Briefs In Mediation

Recommended Reading: "Exchanging mediation briefs: the simplest path to success".

        Mediators often urge that counsel exchange mediation briefs, but an actual exchange seems more to be the exception than the rule. Mediator Robert M. Cohen has a column in the May 24,  2022 Daily Journal advocating for the exchange of briefs in mediation. In a nutshell, his argument is that great communication is the key to successful mediation, and exchanging briefs is the simplest way to further great communication. I have provided a  link to the article. The Daily Journal is behind a  paywall, but readers with access and an interest in mediation will benefit by reading his column.

        As a mediator, I acknowledge that the process is voluntary and I can't compel attorneys to exchange briefs. But I also urge the exchange of briefs, with the proviso that information that is truly confidential and not to be shared with the other side can be removed from the brief and still shared with the mediator. I also ask that the attorneys discuss whether they will exchange briefs, because I hope to avoid a situation in which one attorney provides a brief to the opposing attorney, and the opposing attorney does not  reciprocate. In such circumstances, the attorney providing the brief may feel ambushed. However, an attorney who believes the client's position is strong may choose to unilaterally provide a brief to the other  side, and the failure of an attorney to reciprocate is sometimes perceived as a sign of weakness.

A Happy, Healthy, Productive New Year To All Our Readers!

A Happy New Year To All Our Readers !

Puck's Magazine. December 28, 1910. Library of Congress. Summary by Library of Congress: Illustration shows Father Time ringing bells proclaiming "The Greatest Good for the Greatest Number", while a crowd in the street celebrates the New Year by using noisemakers, horns, drums, and cymbals to sound their personal causes, such as "Partisanship" and "Partisan Politics", "Ring Politics", "Spoils System", "Women's Rights", and "Calamity Howling".

Miscellaneous: Mediating Canine Clashes And Doggy Duals

For Those Who Do Have A Dog In The Fight . . . 

        I recently saw the following rule posted at the entrance to a dog park. It seemed like a constructive way to address dog and dog owner transgressions:

 

 

Oil painting: a rabid dog; by J. T. Nettleship. Wellcome Collection.

Another Tip On Using Videoconferencing For Remote Mediations . . . Beware Of Errant Cat Filters

An Addition To My February 4, 2021 Post About Videoconferencing: Tips For Using Zoom For Remote Mediations.

        In what could have been an Abbott and Costello routine, had those comedians been born into the Age of the Internet and Zoom, a Texas judge and a hapless attorney had to grapple with the vagaries of a cat filter during a court call. So now we have one more tip for our profession's use of videoconferencing: beware the use of cat filters.

        Here's a link to the viral video demonstrating the infelicitous peril of feline interference: 

 

Above: Sketch of Edward Lear at age 73 1/2 and his cat Foss, age 16.

According to Wikipedia, Foss is also mentioned in Lear's poem "How Pleasant to Know Mr Lear":

He has many friends, lay men and clerical,
    Old Foss is the name of his cat;
His body is perfectly spherical,
    He weareth a runcible hat.

Videoconferencing: Tips For Using Zoom For Remote Mediation

Tips For Using Zoom For Remote Mediation

        Since the beginning of the pandemic, I have been conducting remote mediations with Zoom. Based on my experience with Zoom, I have collected tips for mediators, attorneys, clients, and other persons who will be participating in remote mediations conducted via Zoom. While a number of other  platforms have been used, Zoom still appears  to be the one most commonly used by mediators in  Southern California. Many of the tips, though based on my experience with Zoom, are applicable to other platforms. I invite readers to add to my list  of  "Tips" either by emailing me at malexander@alvaradosmith.com, or by adding a comment to this post.

 

Happy New Year 2021 !

Library of Congress. December 30, 1908. Albert Levering, artist.

        The Puck magazine illustration shows Father Time departing, and taking Thomas C. Platt with him. Platt was a two-term member of Congress and a three-term Senator from New York. According to Wikipedia: "Upon his death, the New York Times stated that 'no man ever exercised less influence in the Senate or the House of Representatives than he,' but 'no man ever exercised more power as a political leader.'"