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Law Rules

How we resolve our disputes

Entries in trial (3)

Monday
Jun192017

Twice is nice

Last week, I was on a panel of attorneys at a continuing legal education seminar dealing with mediation. The session was part of the State Bar of Wisconsin’s Annual Meeting and Conference and was interactive. Attendees were asked to participate by answering certain questions using Poll Everywhere. Then, those of us on the panel commented on the answers. Some of the attendees’ responses were expected. Some surprised me. One in particular was very surprising. We asked what attorneys were most afraid of in mediation. The most frequent answer by far was finding out information that was harmful to the attorney’s case. I don’t know what those attorneys were thinking, but I would much rather find out what is wrong with my case at mediation, when there is still time to try to fix it or cut your losses, than during trial when it is too late. 

Early in my career, an attorney who I was working for told me that he didn’t like mediation because it forced him to prepare his case twice. I understand that attorneys are pressed for time and that it can be expensive to prepare your case for trial, and then to do it again, maybe getting more evidence or witnesses, or researching additional legal issues. But after I tried several cases, I realized that I always thought there was something I could have done better had I been able to do it again. Later in my career, I had the opportunity to do mock trials in preparation for some big cases. I always learned many new things about the case and how a jury might perceive it, and usually had to retool my presentation and arguments. This always benefited my client and subsequent settlement negotiations or trial strategy. 

Mediation is supposed to be a consensual process where parties in dispute talk about possible resolutions or settlements. If you suddenly learn new information about your case that makes you rethink its settlement value, that is a good thing. It does not mean you have to throw in the towel and accept your opponent’s settlement offer then and there. You can ask for a continuance to check out the new information and see if there is any way to counteract it. Then you can return to mediation, or proceed to trial, better prepared than before. Either way, mediation will have served a valuable purpose, not one to be afraid of. 

Wednesday
Jun222016

Who wants to go first? 

In mediation, the participants often spend much time trying to get each other to be the first to make a settlement offer. It is understandable that neither wants to be the first because they would both like to see how reasonable or unreasonable the other side is going to be. Then they can respond in kind. Fortunately for the mediator, the parties frequently have had settlement discussions before coming to mediation, and those discussions can help frame the initial offers in mediation. However, if that has not happened, it can be difficult convincing one of the parties to make the first move. 

Likewise, it can be difficult to get the parties to agree to enter into mediation at all. Many people, especially attorneys, see an adversary’s request for mediation as a sign of weakness. If they were prepared for trial and convinced they would win, why would they want to talk about settlement? Where I practice law and have litigated the most cases (Milwaukee County), the standard civil pretrial order requires mediation. It allows the parties to select any mediator they want, but if they cannot agree on one, the court names someone by default. In any event, neither party has to request mediation and appear to be unprepared for trial or less than certain of victory.

Unfortunately, this is not the practice in all counties in Wisconsin. Recently, I attended a “view from the bench” seminar in which trial judges gave tips to trial lawyers. One of the judges said he never ordered mediation unless one of the parties requested it. I believe the judge is missing an opportunity to be of service to the attorneys and their clients. The Judge can avoid the parties’ fear of appearing weak and give the attorneys cover by saying “the Judge made me do it.” The opportunity to settle well in advance of trial also avoids the spectre of one of the parties folding on the courthouse steps immediately before trial, thereby giving away the store or leaving money on the table, and wasting scarce court time. 

So, instead of asking the attorneys if they want mediation, a judge’s default pretrial order should require mediation. The Judge should strike the order for mediation only if he finds some reason not to order it. For example, if the case is one of first impression or if a precedent needs to be set regarding a new statute or constitutional provision, it may not be appropriate for mediation. If the attorneys have tried and settled many similar cases against each other, they may be familiar enough with each other and the process so they do not need a mediator to help guide them through it. Otherwise, the Judge would be doing a favor for the parties, their attorneys and the court system by ordering mediation. 

Wednesday
Jul062011

Jury on Trial

In the aftermath of Casey Anthony’s acquittal of murder charges, cyberspace and the public airwaves seem to be full of people complaining about the stupid jurors and our jury system in general. Some have even called it a waste of taxpayer money. I disagree. I think the jurors in Orlando provided an enormously valuable service. With no prior criminal record, Casey Anthony is hardly a danger to the community, like a serial murderer or terrorist. She might be a lying slut, and even a danger to her own (dysfunctional) family, but does that warrant locking her up for life or until the conclusion of the appeals necessary to impose the death penalty? Talk about a waste of taxpayer money.

I don’t know if the jurors made the right decision in this case, but they certainly had a better view of the evidence and witnesses than I did. They were clearly a jury of Casey’s peers. They were also peers of the police and prosecutors. Some of them were parents of children like Caylee. They represented their community and performed their duty well. So I am not going to second-guess their decision.

The Sixth and Seventh Amendments to the U.S. Constitution preserve our right to trial by jury. While jurors’ decisions may be unpredictable, that is precisely what gives us good reason to search for our own collaborative and consensual solutions to disputes. Our founding fathers sought independence, not predictability. I hope that is what everyone was celebrating this past 4th of July weekend. I know I was.