California Mediation and Arbitration

Waiver: First District, Div. 2 Applies Federal Rule Governing Waiver Of The Right To Arbitrate

Because The Parties Agreed That The Federal Arbitration Act Applied, Applying The Federal Rule In Morgan v. Sundance, Inc. Was Necessary.

        When the first paragraph of an opinion tells us that the party seeking to compel arbitration waited 19 months to bring a motion to compel arbitration, the court has pretty much telegraphed that one way or another, it will find a waiver of the right to arbitrate. That was the case in Britani Davis v. Shiekh Shoes, LLC, No. A161961 (1/2  10/31/22) (Richman, Miller, Mayfield).

        Basically, the federal rule applied in Davis when determining whether a party has waived its right to arbitrate, because the parties agreed that the Federal Arbitration Act applied to the case. As set forth in Morgan v. Sundance, Inc.,  142 S.Ct. 1708 (2022), the federal rule asks whether the party seeking to compel arbitration has evinced an intent to forego arbitration by acting inconsistently with the right to arbitrate. In contrast, California courts have required a finding of prejudice to the party seeking to avoid arbitration before they will find a waiver of the right to arbitrate. Quach v. California Commerce Club, Inc., 78 Cal.App.5th 470 (2022).

        We now have a situation where, if the Federal Arbitration Act and Morgan apply, a California court will not require a finding of prejudice in order to find a waiver of the right to arbitrate. The FAA can apply if the parties contracted for it to apply, or if interstate commerce is involved. However, if the California Arbitration Act, Quach, and a long line of California cases apply, then prejudice may be determinative to a finding of waiver of the right to arbitrate. The California Supreme Court has accepted a petition for review of Quach, so perhaps we will find out if California will require prejudice in the future in cases where the FAA does not apply, or whether California will conform its case law to the federal rule.

        COMMENT: I have written two recent articles in the Daily Journal about the subject: Waiver of the right to arbitrate revisited (November 3, 2022) and The United States and the California Supreme Courts are not on the same page (June 10, 2022). The links to the article will work if you subscribe to the Daily Journal, which, alas, is behind a paywall.

 

Reviews: Jamal Greene's How Rights Went Wrong

Your Blogger Reviews How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart, by Jamal Greene, with Foreword by Jill Lepore.

        My review of this very interesting book appears in Volume 35, Issue 2 at p. 21 (2022) of The Journal of the Litigation Section of the California Lawyers Association. With the permission of the CLA, and its journal, I have reprinted the review. You can access the reprint by clicking on this link.

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.

Arbitration, Waiver: Your Blogger Has An Article About Waiver Of The Right To Arbitrate In The Daily Journal

The Article Is Entitled "The United States and the California Supreme Courts are not on the same page."

        My article in the June 10, 2022 online edition of the Daily Journal contrasts the analysis of waiver of the right to arbitrate in the SCOTUS case Morgan v. Sundance  (2022) with the analysis in the California Supreme Court case St. Agnes Medical Center v. PacifiCare of California (2003). SCOTUS does not require a showing of prejudice by the party opposing arbitration before the party seeking arbitration can be found to have waived its right to arbitrate [see my 5/24/22 post on Morgan v. Sundance]. The California Supreme Court views the matter differently. In 2003, the St. Agnes court endorsed federal cases requiring a finding of prejudice before there could be a waiver of the right to arbitrate. That is no longer the case after Morgan v. Sundance. Time to rethink the matter?

        Viewing the article online requires a subscription the Daily Journal.

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.

Reviews: Your Blogger Had Two Articles Recently Published In The Daily Journal

The articles are:

Outsourcing the violation of constitutional rights to private parties, Sept. 8, 2021.

Do Justices studiously try to avoid deciding cases on the basis of ideology? A review of Justice Stephen Breyer's "The Authority of the Courts and the Peril of Politics," Oct. 19, 2021.

NOTE: While I have provided links, they tend to be of limited benefit, because the Daily Journal is behind a paywall. 

Reviews: Our Blogger's Review Of New Book About Gov. Jerry Brown Is Republished Here

The Book Is Journalist Jim Newton's Man of Tomorrow: The Relentless Life of Jerry Brown.

        For those of you who enjoy reading about California politics and politicians, I've written a review of Jim Newton's new book about former Governor Jerry Brown. The review, which appears in California Litigation, Vol. 34, No. 1 (2021), is republished here with the permission of the California Lawyers Association and its publication, California Litigation. The review is republished with the disclaimer that I alone am responsible for any opinions expressed therein.

Reviews: Sweet Taste Of Liberty: A True Story Of Slavery And Restitution In America

Your Blogger Has Reviewed Sweet Taste of Liberty, And Includes A Link To The Review Below.

        Rice University historian W. Caleb McDaniel won the Pulitzer Prize in history for this remarkable story about Henrietta Wood, an enslaved person in Kentucky, who was freed in Ohio, kidnapped by a slave broker, re-enslaved, sold in Kentucky, and freed after the Civil War. After returning to Ohio, she sued for restitution in federal court. 

        Wood was illiterate and signed her name with an X, so it is a tremendous feat of scholarship that her story can be told at all.

        The most recent issue of California Litigation, the journal of the litigation section of the California Lawyers Association, is devoted to the theme of racial justice. I am one of the editors of the journal, and my review of the book, which appears in the recent issue, can be read by clicking here.

Reviews: Your Blogger Publishes Article About Nuts And Bolts Of Videoconference Dispute Resolution

"Nuts and Bolts of Videoconference Dispute Resolution in the Time of Covid-19."

        With remarkable speed, mediators, arbitrators, judges, and attorneys have learned to use videoconferencing as a work tool. Back in March, after we began "sheltering in place" in California, I drafted an article on the "Nuts and Bolts of Videoconference Dispute Resolution in the Time of COVID-19." The article now appears in the current issue of California Litigation, the journal of the litigation section of the California Lawyers Association, Vol. 33, No. 2 (2020). The article addresses the mechanics, best practices, and pros and cons of videoconference dispute resolution. With the permission of the CLA and California Litigation, I am republishing the article here, with the usual disclaimer that I alone am responsible for the contents and opinions expressed in the article.