California Mediation and Arbitration

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.

Reviews: The Second Founding By Historian Eric Foner

Your Blogger Has Reviewed Professor Eric Foner's Book, The Second Founding: How The Civil War And Reconstruction Remade The Constitution, in California Litigation.

        I've reviewed Eric Foners' book, The Second Founding.  The book is about the legislative and political history of the 13th, 14th, and 15th Amendments, and the post-Civil War Supreme Court's judicial interpretation and evisceration of the  Amendments. The review appears in California Litigation, the journal of the California Lawyers Association, Vol. 33, No. 1, p. 52 (2020). With the permission of the California Lawyers Association and its publication California Litigation, I am republishing the article and making it available by clicking here.

Reviews: Our Blogger Reviews McMillion$ In The Daily Journal

Review Of McMillion$ Appears In February 21, 2020 Issue Of Daily Journal.

        After watching the first two episodes of the HBO documentary mini-series, McMillion$, I reviewed it for the Daily Journal under the heading, "‘McMillion$’ evokes nostalgia for burgers, fries and mere millionaires." The documentary is about McDonald's "Who Wants To Be A Millionaire" Monopoly game scandal that erupted in 2001 after it was discovered by the FBI, with the help of an inside tip, that the game was rigged. Thus far, I have thoroughly enjoyed this fast moving and entertaining documentary. Regrettably, the Daily Journal places articles behind a paywall, and thus I cannot link the article to social media, but perhaps some of you who subscribe to the Daily Journal can take a look at the review.

Settlements: 9th Circuit Takes Negotiation Strategy Into Account In Case Where Trial Judge Slashed Fees Because Plaintiff Settled for 10% Of Claim

The Majority Opinion Acknowledges That Parties Can Start High When Staking A Claim.

          In today's Daily Journal, I have an article about Vargas v. Howell et al., 2020 DJDAR 905 (9th Cir. Feb. 5, 2020), entitled: 'Mechanical' analysis of attorney fees award in civil rights case results in partial reversal'.  In Vargas, the trial judge slashed a senior litigation attorney's fees 90% in a civil rights case. The Court of Appeals panel majority required further explanation for the severe discount, and District Judge Roger Benitez dissented, believing that the trial judge had provided enough explanation already. While my article focuses on the fee issue, one issue addressed in the case will be of interest for mediators, as well as for attorneys and clients negotiating a settlement.

          The majority opinion argues that punishing a fee applicant in a civil rights case because the settlement amount is a fraction of the claim can create "perverse incentives." Because it is unusual and interesting for a court to speculate or opine about the effect of a fee award on settlement negotiation strategy, I provide the court's comments. Here is the panel's discussion of the potential impact on negotiation strategy of a trial court's discounting fees 90% because the settlement was 10% of the claim:

     The effect of that approach is to punish Vargas’s attorneys for pursuing what might well have been a sensible negotiation strategy. A reasonable attorney representing Vargas could have made the strategic choice to present an initial damages estimate as high as possible. Of course, an unrealistically high estimate could make settlement talks unproductive, and an attorney must also ensure that any estimate presented to the court is “likely [to] have evidentiary support after a reasonable opportunity for further investigation.” Fed. R. Civ. P. 11(b)(3). But within those limits, Vargas’s attorneys could reasonably have decided that by offering a high damages estimate, they would retain “room to later grant concessions, while still reaching a favorable settlement.” Stephen J. Ware, Principles of Alternative Dispute Resolution § 3.15, at 313 (3d ed. 2016). Had they started from a lower number, the settlement might have been lower. Whether or not that is the strategy Vargas’s attorneys had in mind, they should not be faulted for negotiating a settlement.
     The district court’s approach threatens to create perverse incentives for lawyers representing civil rights plaintiffs. If fees are reduced whenever a case settles for less than the initial demand, lawyers will be encouraged to make only modest initial demands, limiting the potential recovery for their clients. And as the litigation proceeds, they will be encouraged to refuse to lower their demands, making settlement more difficult and prolonging the litigation. No one will be well served by that approach.