February 18th Notes

Litigation Basics
February 18, 2010

NEWS
3 Handouts on Mediation
-his example has great adjectives to use

Mediation Project Due Mar 3rd
-do not put a Law section in your Mediation Project
-no research for the project, this is about writing
-be passionate for your cause

Discovery Project Due Feb 25th
-for the memo 1-3 paragraphs to summarize the case
-focus on the details and ideas the lawyer might have missed
    -1/2 page on each person you will depose
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Chapter 14  page 375
-identify with your client, never distance yourself from them
-they are not just plaintiffs

Law Section
-usually not required since lawyers know the law (tort law)
-they also know their arguments too, you don't need suggestions
    -may lead to straw man arguments, tearing down arguments that don't exist
-when you add them, it's focused on details of the case

Client's Personal History
-family information, education, employment, religion, professional organizations
-include hobbies and sports


Injuries to the Plaintiff
-example: burn injury saying 1/3 of the body is not as bad as saying 30% of his body
-do not use language like minor, cuts
-talk about fracture, not just that it's broken, add type and treatment
-organization from major injuries to minor
-dental problems are not minor
-plastic surgery is not minor
-write the brief well and detailed since the client will read and evaluate it
    -capture their aspect of the story
    -plaintiff: are they ruined, dead?
    -defense: are they over the top, drama?

Expenses
-explain the details of the treatments and why they cost so much
    -example: the severity of burn treatment, it is not a simple treatment

Damages
-make sure it reflects adequately on the injuries, wage losses
-you don't need to do the math
-do not threaten to go to trial, just do it
-a deadline might be nice but you can just file the lawsuit
-make sure there is humanity involved in this, it is about a client
    -how their life was before, during and after this incident
    -relationships, hobbies, enjoyment of life

Settlement Brochures
 -summary of facts designed to get the other side to settle a case
-adding photos, interviews, news articles
-very persuasive
-much more than the other types
-more complete and intimidating
-not as expensive anymore
    -thanks to the programs and photos online
-bringing charts, demonstrations, graphs
-showing them you are "ready for war" can make settling easier
-also means you are ready for trial and prepared when they won't settle
-videos, "a day in the life of our client"
-choosing a good way to display your case and make the defendant understand the severity of the case
-do not save it all for trial
-damages demand must be higher than what you think you will get
    -start high and work down in mediation
    -explain this fact to clients, you are not getting millions, it is a starting point

Statement of Facts
-settlement brochure begins with this
-written from the perspective of the defendant's liability
-includes witness statements, medical reports, newspaper articles and photographs

Settlement Conference
-a meeting of the parties to discuss settlement of the case
-rule 16 or pretrial conference

Settlement Agreements
 -contract between two parties to settle a case, involves voluntary, mutual assent of the parties and the give-take element of consideration
-must be legal and must be made by parties with the capacity to contract
-usually not seen
-only for complicated case
-might want confidentiality for clients
-do we need annuity
-does one of the parties need to do something specifically in a timeline
-good for ongoing duties or agreements

Voluntary mutual assent
-attorney can not agree to a settlement if the client does not want to
-it is the client's case, you are the mouthpiece for him
    -as an attorney you can withdraw from the case if you don't agree
    -might not be able to file a lien for your fees, might not get paid
    -very important to have a close client relationship
-do not threaten your client to take anything

Consideration
-a settlement is a contract
-the consideration is that client will not sue in exchange for money/specific damages
-it is legal consideration not economic

Capacity and Legality
-client is not insane, etc.

High-Low Agreements
-parties agree that the outcome of the case will be no less than X dollars and no more than Y dollars

Loan Receipt
-Mary Carter agreements
    -side deals where there are lots of defendants and one defendant play against the other defendants with money given to the plaintiff
    -are illegal in a lot of states, if not must be disclosed
-a contract between a claimant and settling tortfeasor by which they agree that one of them will prosecute the claim against another tortfeasor

Releases
-releases the client, giving up the claim for a check

TYPES         LITIGATED      NOT LITIGATED
Release                NO                     YES
Check                  YES                    YES
Hold Harmless   YES                    YES  (usually an insurance issue)
Dismissal            YES                     NO

Release: General or Global
-ends everything in all aspects

Partial Release:
-some defendants or some cause of action
    -some things can not be released
-can go after the other defendants
-few defendants will be willing to give money for removal of some actions
-example: property damage from car accident
    -first they fix the car (sign a release for the car)
        -be careful in signing the release since it may be general release
        -if not you can not pursue personal injury
        -make sure it is partial
    -under-insured policy for $100,000
        -case for $75,000
        -defendant only has $25,000 insurance
        -take the first from defendant then claim the other $50,000 from your insurance
        -you sign a release for the defendant, must be a partial release
            -insurance has a subrogation clause, meaning they can go after the defendant
            -need to sign a partial release so they can pursue the defendant and pay you
        -you need to only release the defendant, not all defendants known and unknown

Mutual Releases
-everyone released

Dismissal
-dismiss the pleading
-presumed to be without prejudice
    - to protect the client make sure to add with prejudice
    -otherwise they can bring the lawsuit again without prejudice

WA CR 41
-plaintiff can dismiss at any time before resting
    -have to watch how long you rest before trial
-counterclaim: you may not be able to dismiss you claim
-the court can involuntarily dismiss usually over a year
CR41(e) Notice of Settlement: the court needs to know promptly
    -burden on plaintiff to tell court

4 ways to dismiss a complaint
1. Stipulated
2. Voluntary Dismissal
3. Court Dismissal
4. Motion to Dismiss  CR12(b)

Federal CR41
-notice of dismissal before an answer or a summary judgment
-happens quickly

Consent Decrees
-confession of judgment
-example:  owe money and then sued
    -agree to give some money now and pay on a schedule later
    -file another lawsuit
    -agree to this again and defaults keep happening
    -have them sign a consent decree
        -pay and i tear it up
        -otherwise you default, it is filed with the court and sent to collections
-government agencies do this a lot
-to use so you don't have to keep suing this person

-settlement proceeds statement must be prepared
    -RPC 1.5(c)(3) "shall provide..."

Alternative Dispute Resolution
-have replaced settlement conferences
-almost every case goes through some form of this before trial
-mandatory arbitration
    -all cases under $50,000 must be arbitrated as per the statute 7.06
-judges prefer this since resolution might be found
-many lack objectivity and this can help
-they can not make you to agree to binding ADR
    -always non-binding (one exception)
    -Why?  Constitutional Rights Amendment 7: Right to a Jury trial
        -the exception: you can agree to give up your 7th Amendment rights
            -binding arbitration often found in contracts
            -cheaper, faster, and more certain

Court-Related ADR
Early Neutral Evaluation
-nonbinding, rarely see this, too early no discovery

Mediation
-very common
-shuttle diplomacy
-trying to reach agreements between a neutral party
-mediator can be anyone the parties agree on, does not have to be a lawyer
    -usually paid by the hour

Non-binding Arbitration
-in the statute 7.06
-informal but has witness, documents and speak about case
-the arbitrator listens and awards what he finds
-either party can reject the award and go to court, it is non-binding
-can denovo it

Summary Jury Trial
-mini trial, but very expensive
-usually only in huge cases

Summary Bench Trial
-very expensive

Private ADR

Binding Arbitration
-does not involve the Court Rules
    -American Arbitration Society governs
    -entitled to discovery: not as much
-usually in contracts

Negotiation

Mediation
-many organizations that provide these services
-WAMS, JAMS, JDR

Arbitration
-groups that have arbitration exist too
-need to know what your case is really about to find a good arbitrator

high-low arbitration
-agree that no matter what the outcome is, it is between two points

baseball arbitration
-outcome is either this number or this number
-parties must agree to those numbers
-forces more realistic numbers

night baseball arbitration
-high or low closest to what the numbers actually are

med-arb
-mediate it first, then arbitration occurs
    -one person does all
-does not seem to fit both roles, very different roles

mini-trial
-only in huge cases

private judging
-long year to trial, lots of retired judges
-pick own judge and make trial
-make own schedule
-very popular until it was popularized and media blew it up
    -usually only for wealthy and elite

Chapter 14 Review Questions
1. What is a settlement?
2. What are some of the preliminary decisions surrounding settlements?
3. What areas must be investigated before a settlement offer is made?
4. What is the difference between a settlement summary and a settlement letter?
5. How does a settlement brochure differ from a settlement summary and a settlement letter?
6. What is a settlement agreement?
7. What is a release?  What types of releases are available?
8. What are the advantages of a stipulated dismissal?
9. When is a voluntary dismissal on notice allowed?
10. Under what circumstances can a court order an involuntary dismissal?
11. How does a consent decree differ from a stipulated dismissal?
12. What is a settlement proceeds statement?
13. Describe the various methods of court related ADR.
14. Describe the various methods of private or voluntary ADR.

State Rules
Mandatory Arbitration Rules
MAR page 439 in 2010
-5 pages Read All of these and mark them
Important Rules to Know
4.2: limited discovery after arbitration
5.1: 21-63 days the trial must be heard once in arbitration
5.2: prehearing statement
5.3(c): arbitration more informal than trial
5.3(d): presumed admissible 
    -ER 904
6.2: 14 days to award
6.3: saying you can have your day in court, not binding
    -done in 20 days

De Novo: from the beginning, either side can do this
    -must be done in 20 days

7.1: can not be extend de novo
7.2: can not reference to arbitration award to the jury
    -ER 408
7.3: risk of de novo, free to do it, but if you do and you do not improve your position at trial, you pay the other sides costs

KC Rules MAR
LMAR page 634 in 2010
2.1: suitable cases under $50K
2.3: list of arbitrators (5 names)
    -strike 2 names
    -say the ones you like
4.2: discovery
7.1: accelerated trial date included
    -in arbitration trial in 60-120 days
    -promotes arbitration