News
Pricing Legal Claims Part II – Valuation Biases And Heuristics
August 29, 2013
In the last post, I noted that three different sources of uncertainty affected efforts to appropriately value claims: the amount in controversy, as influenced by the revealed facts and relevant decision makers; the uncertain amount in litigation costs; and the sequential nature and nonmonotonic value of the option to settle. This post focuses on the first–the challenges of gauging the amount in controversy, including but not limited to a potential judgment value. While even robotic litigants...
August 29, 2013
In the last post, I noted that three different sources of uncertainty affected efforts to appropriately value claims: the amount in controversy, as influenced by the revealed facts and relevant decision makers; the uncertain amount in litigation costs; and the sequential nature and nonmonotonic value of the option to settle. This post focuses on the first–the challenges of gauging the amount in controversy, including but not limited to a potential judgment value. While even robotic litigants...
Pricing Legal Claims Part I: The Valuation Challenge
August 28, 2013
The difficulty in valuing a given litigation is well known, but it is important to recognize the three different sources of uncertainty. First is the basic question of the amount in controversy and all the ways that the judge, jury and law can affect that amount. Second are the impact of transaction costs–the cost of litigation–on the amount in controversy. And third is the sequential nature and nonmonotonic value of the option to settle. The latter is almost universally overlooked. In this...
August 28, 2013
The difficulty in valuing a given litigation is well known, but it is important to recognize the three different sources of uncertainty. First is the basic question of the amount in controversy and all the ways that the judge, jury and law can affect that amount. Second are the impact of transaction costs–the cost of litigation–on the amount in controversy. And third is the sequential nature and nonmonotonic value of the option to settle. The latter is almost universally overlooked. In this...
Oxford Health and Manifest Disregard, Part II.B
August 28, 2013
Part II.B: To what Extent, if at all, will Oxford Likely Influence FAA Law and Practice? While Oxford is uncontroversial in the sense that it does not purport to change the standard of review applicable to Federal-Arbitration-Act (“FAA”)-governed arbitration awards, it will likely influence FAA arbitration law and practice concerning the judicial review of arbitration awards under FAA Section 10(a)(4) in at least three ways. First, it should dissipate significantly any lingering confusion...
August 28, 2013
Part II.B: To what Extent, if at all, will Oxford Likely Influence FAA Law and Practice? While Oxford is uncontroversial in the sense that it does not purport to change the standard of review applicable to Federal-Arbitration-Act (“FAA”)-governed arbitration awards, it will likely influence FAA arbitration law and practice concerning the judicial review of arbitration awards under FAA Section 10(a)(4) in at least three ways. First, it should dissipate significantly any lingering confusion...
Ramblings of a Neuro-Linguist: The Impact of Voice on Communication
August 28, 2013
Much has been written about the impact of body language on communication. I have in a previous entry addressed the connection between non-verbal communication and the building of rapport. While body language is the commonly used term, I prefer the term non-verbal communication for two reasons. First, the term “body language” is a metaphor that gives one the impression that one’s body signals communicates content, akin to words and sentences. Hence the popularity of views that if one crosses...
August 28, 2013
Much has been written about the impact of body language on communication. I have in a previous entry addressed the connection between non-verbal communication and the building of rapport. While body language is the commonly used term, I prefer the term non-verbal communication for two reasons. First, the term “body language” is a metaphor that gives one the impression that one’s body signals communicates content, akin to words and sentences. Hence the popularity of views that if one crosses...
Fifth Circuit Affirms Order Despite Alleged Arbitrator Misconduct
August 28, 2013
In an unpublished opinion, the United States Fifth Circuit Court of Appeals has affirmed a lower court’s refusal to vacate an arbitration award and reopen a case despite alleged arbitrator misconduct. In Bain Cotton Company v. Chesnutt Cotton Company, No. 12-11138, (5th Cir. June 24, 2013), Bain Cotton Company engaged in arbitral proceedings with Chesnutt Cotton Company. During arbitration, an arbitral panel denied a number of Bain’s discovery requests and apparently evidenced partiality...
August 28, 2013
In an unpublished opinion, the United States Fifth Circuit Court of Appeals has affirmed a lower court’s refusal to vacate an arbitration award and reopen a case despite alleged arbitrator misconduct. In Bain Cotton Company v. Chesnutt Cotton Company, No. 12-11138, (5th Cir. June 24, 2013), Bain Cotton Company engaged in arbitral proceedings with Chesnutt Cotton Company. During arbitration, an arbitral panel denied a number of Bain’s discovery requests and apparently evidenced partiality...
Why You Cannot Be Replaced
August 28, 2013
Last week at the LinkedIn Group run by Citibank's Women & Co., many people expressed the view that they can't ask for a raise because there are ten other people who are ready, willing and able to take their job for even less pay than they are making now. Au contraire. The loss of human capital cannot be rectified by replacing existing staff (with their good client relations, institutional knowledge and good team relations) with people who must be trained, brought up to speed on company...
August 28, 2013
Last week at the LinkedIn Group run by Citibank's Women & Co., many people expressed the view that they can't ask for a raise because there are ten other people who are ready, willing and able to take their job for even less pay than they are making now. Au contraire. The loss of human capital cannot be rectified by replacing existing staff (with their good client relations, institutional knowledge and good team relations) with people who must be trained, brought up to speed on company...
Federal Circuit: Secret Patent Trials are OK
August 27, 2013
By their nature, patents have the power to control the ways that we can use our property. Gun laws can prohibit gun owners from shooting in certain areas. In the same way, a patent covering a particular gun will prohibit an individual (without license) from building or using a gun with that design. This is true even if the individual owns all the raw materials necessary to build the gun. Following this train reasoning, Courts have historically recognized that the public has a right to access patent...
August 27, 2013
By their nature, patents have the power to control the ways that we can use our property. Gun laws can prohibit gun owners from shooting in certain areas. In the same way, a patent covering a particular gun will prohibit an individual (without license) from building or using a gun with that design. This is true even if the individual owns all the raw materials necessary to build the gun. Following this train reasoning, Courts have historically recognized that the public has a right to access patent...
Loree on Oxford Health, Part II
August 27, 2013
Part II.A: What to Make of Oxford? In our last post (here) we discussed the U.S. Supreme Court’s recent decision in Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. (U.S. June 10, 2013), which, among other things, reaffirmed that Section 10(a)(4) of the Federal Arbitration Act (“FAA”) authorizes judicial review of FAA-governed-arbitration-award outcomes based on the labor-arbitration-derived “manifest disregard of the agreement” standard. This post, which has been divided...
August 27, 2013
Part II.A: What to Make of Oxford? In our last post (here) we discussed the U.S. Supreme Court’s recent decision in Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. (U.S. June 10, 2013), which, among other things, reaffirmed that Section 10(a)(4) of the Federal Arbitration Act (“FAA”) authorizes judicial review of FAA-governed-arbitration-award outcomes based on the labor-arbitration-derived “manifest disregard of the agreement” standard. This post, which has been divided...
Has The Evaluative Label Outlived Its Usefulness?
August 27, 2013
Recently I have noticed mediators using a label to describe other people’s practice. It is rarely a compliment. That label is “evaluative”; as in “she takes rather an evaluative approach” or “his background as a lawyer leads him to be evaluative.” More subtly, “We are firmly committed to the facilitative model” (and, by implication, not the evaluative). Some question their own practice: “was I being a little evaluative there?” A colleague recently confessed that she had been...
August 27, 2013
Recently I have noticed mediators using a label to describe other people’s practice. It is rarely a compliment. That label is “evaluative”; as in “she takes rather an evaluative approach” or “his background as a lawyer leads him to be evaluative.” More subtly, “We are firmly committed to the facilitative model” (and, by implication, not the evaluative). Some question their own practice: “was I being a little evaluative there?” A colleague recently confessed that she had been...
Houston’s First COA Upholds Arbitral Award Where Parties Signed Competing Agreements
August 27, 2013
Houston’s First District Court of Appeals has upheld an arbitrator’s award in a dispute that arose between an employer and a worker who was hurt on-the-job. In Forged Components, Inc. v. Guzman, No. 01–11–00563–CV, (Tex. App. Dist. 1 – June 25, 2013), Ricky Guzman was pinned by a forklift while working at Forged Components, Inc. (“FCI”). As a result, Guzman was hospitalized for nearly one month. At the time of Guzman’s injury, the company was not a subscriber under the Texas...
August 27, 2013
Houston’s First District Court of Appeals has upheld an arbitrator’s award in a dispute that arose between an employer and a worker who was hurt on-the-job. In Forged Components, Inc. v. Guzman, No. 01–11–00563–CV, (Tex. App. Dist. 1 – June 25, 2013), Ricky Guzman was pinned by a forklift while working at Forged Components, Inc. (“FCI”). As a result, Guzman was hospitalized for nearly one month. At the time of Guzman’s injury, the company was not a subscriber under the Texas...
