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Mediation Quotes
May 20, 2014
In the vast majority of cases, clients have a greater likelihood of making a devastating settlement decision in a mediation session than watching their attorney conduct a devastating cross-examination at trial. - Randall Kiser Some of the sharpest men in argument are notoriously unsound in judgment. I should not trust the counsel of a smart debater, any more than that of a good chess-player. - Oliver Wendell Holmes The appropriateness of lawyers' probability judgments has important implications...
May 20, 2014
In the vast majority of cases, clients have a greater likelihood of making a devastating settlement decision in a mediation session than watching their attorney conduct a devastating cross-examination at trial. - Randall Kiser Some of the sharpest men in argument are notoriously unsound in judgment. I should not trust the counsel of a smart debater, any more than that of a good chess-player. - Oliver Wendell Holmes The appropriateness of lawyers' probability judgments has important implications...
‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause
May 20, 2014
Gilt implemented its membership agreement using a standard mandatory clickthrough procedure with links to the actual terms. Citing Fteja v. Facebook, the court says: The question here is whether Starke is bound by the written terms of a transaction which he did not see or read, although he was aware that there were terms which governed his purchase, that he would be taken as having agreed to them by making the purchase, and that he could read them by one or two clicks of the mouse. Framed this...
May 20, 2014
Gilt implemented its membership agreement using a standard mandatory clickthrough procedure with links to the actual terms. Citing Fteja v. Facebook, the court says: The question here is whether Starke is bound by the written terms of a transaction which he did not see or read, although he was aware that there were terms which governed his purchase, that he would be taken as having agreed to them by making the purchase, and that he could read them by one or two clicks of the mouse. Framed this...
Appellate Court Reverses Decision that Standard Construction Form Requiring Mediation Is Contract of Adhesion
May 20, 2014
A California court of appeals overturned the trial court’s decision that a standardized home purchase contract which required homeowners to give notice and an opportunity to correct any construction defects, and then to mediate prior to filing litigation against the builder, was an unconscionable contract of adhesion and violated California’s 2002 Right to Repair Act. The appellate court found that there was nothing unfairly one-sided about the mediation terms, as required for a contract to be unconscionable. McCaffrey...
May 20, 2014
A California court of appeals overturned the trial court’s decision that a standardized home purchase contract which required homeowners to give notice and an opportunity to correct any construction defects, and then to mediate prior to filing litigation against the builder, was an unconscionable contract of adhesion and violated California’s 2002 Right to Repair Act. The appellate court found that there was nothing unfairly one-sided about the mediation terms, as required for a contract to be unconscionable. McCaffrey...
How Lawyers’ Intuitions Prolong Litigation
May 20, 2014
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse...
May 20, 2014
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse...
Rethinking the Arbitration Clause
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
@Google Presents: Daniel Kahneman
May 19, 2014
Daniel Kahneman, recipient of the Nobel Prize in Economic Sciences for his seminal work in psychology that challenged the rational model of judgment and decision making, is one of our most important thinkers. His ideas have had a profound and widely regarded impact on many fields—including economics, medicine, and politics—but until now, he has never brought together his many years of research and thinking in one book. In the highly anticipated Thinking, Fast and Slow, Kahneman takes us on a groundbreaking...
May 19, 2014
Daniel Kahneman, recipient of the Nobel Prize in Economic Sciences for his seminal work in psychology that challenged the rational model of judgment and decision making, is one of our most important thinkers. His ideas have had a profound and widely regarded impact on many fields—including economics, medicine, and politics—but until now, he has never brought together his many years of research and thinking in one book. In the highly anticipated Thinking, Fast and Slow, Kahneman takes us on a groundbreaking...
Dodd-Frank Only Precludes Arbitration of Whistleblower Actions
May 19, 2014
The Fourth Circuit found this week that the Dodd-Frank Act did not override all arbitration agreements between publicly-traded employers and their employees. Santoro v. Accenture Federal Servs., LLC, 2014 WL 1759072 (4th Cir. May 5, 2014). Instead, “where the plaintiff is not pursuing Dodd-Frank whistleblower claims, neither [section of the Dodd-Frank Act] overrides the FAA’s mandate that arbitration agreements are enforceable.” This case involved the termination of a 66-year-old Accenture...
May 19, 2014
The Fourth Circuit found this week that the Dodd-Frank Act did not override all arbitration agreements between publicly-traded employers and their employees. Santoro v. Accenture Federal Servs., LLC, 2014 WL 1759072 (4th Cir. May 5, 2014). Instead, “where the plaintiff is not pursuing Dodd-Frank whistleblower claims, neither [section of the Dodd-Frank Act] overrides the FAA’s mandate that arbitration agreements are enforceable.” This case involved the termination of a 66-year-old Accenture...
Liquidated Damages in Settlement Agreement Are Unenforceable Penalty in California, If Not Related to Actual Loss Suffered
May 19, 2014
A liquidated damages clause requiring payment of the entire $85,000 in dispute, which was settled in an agreement requiring payment of only $38,000, was held by a California appellate court to be an unenforceable penalty as there was no reasonable relationship to the damages actually suffered by the failure to make a timely payment of the settlement amount, notwithstanding an express waiver of any challenges to the liquidated damages in the settlement. Purcell v. Schweitzer, No. D063435 (Cal....
May 19, 2014
A liquidated damages clause requiring payment of the entire $85,000 in dispute, which was settled in an agreement requiring payment of only $38,000, was held by a California appellate court to be an unenforceable penalty as there was no reasonable relationship to the damages actually suffered by the failure to make a timely payment of the settlement amount, notwithstanding an express waiver of any challenges to the liquidated damages in the settlement. Purcell v. Schweitzer, No. D063435 (Cal....
Visual Law Services are Worth a Thousand Words—and Big Money (via ABA Journal)
May 19, 2014
Mike and I have been on this beat for quite a while and are happy to see this getting coverage. The basic proposition is that...
May 19, 2014
Mike and I have been on this beat for quite a while and are happy to see this getting coverage. The basic proposition is that...
Visual Law Featured in New ABA Journal Cover Article
May 18, 2014
Visualization of legal information is the focus of Bob Ambrogi’s cover article in the new issue of ABA Journal: Visual...
May 18, 2014
Visualization of legal information is the focus of Bob Ambrogi’s cover article in the new issue of ABA Journal: Visual...
