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Making the Case for Arbitration
August 14, 2014
Is litigation “better” than arbitration? What does “better” mean, and who decides? The debate over arbitration vs. litigation has been going on for years, and will likely continue . . . with no clear winner. Aaron Foldenauer essentially invited this discussion in his July 29 article on CorpCounsel.com, “Big Risks and Disadvantages of Arbitration vs. Litigation.” While my article responds to some of the criticisms of arbitration in that one, I hope that it is a thoughtful counterpoint....
August 14, 2014
Is litigation “better” than arbitration? What does “better” mean, and who decides? The debate over arbitration vs. litigation has been going on for years, and will likely continue . . . with no clear winner. Aaron Foldenauer essentially invited this discussion in his July 29 article on CorpCounsel.com, “Big Risks and Disadvantages of Arbitration vs. Litigation.” While my article responds to some of the criticisms of arbitration in that one, I hope that it is a thoughtful counterpoint....
Judge Orders Biglaw Firm to Make Video Apologizing for Discovery Abuses
August 13, 2014
Congratulations to Judge Mark Bennett of the Northern District of Iowa. As Above the Law recently reported, the judge took issue with a Biglaw firm whose names rhyme with "Cones Way." Ten guesses and the first nine don't count. In Security National Bank of Sioux City v. Abbott Laboratories, the judge said "Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal civil litigation right here in the United States." He...
August 13, 2014
Congratulations to Judge Mark Bennett of the Northern District of Iowa. As Above the Law recently reported, the judge took issue with a Biglaw firm whose names rhyme with "Cones Way." Ten guesses and the first nine don't count. In Security National Bank of Sioux City v. Abbott Laboratories, the judge said "Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal civil litigation right here in the United States." He...
The Settlement Drift, Part III
August 13, 2014
What can be done to fix the system? Some might argue that the system doesn’t need fixing. After all, most providers and successful mediators are enjoying sizable financial benefits, and the courts continue to inundate private industry with referrals. Indeed, when the mediation process is successful it is a joy for all involved and a reminder of why the process gained such favor in the civil justice system. Yet, like any “system,” when it becomes too standardized and repetitive, marginalization...
August 13, 2014
What can be done to fix the system? Some might argue that the system doesn’t need fixing. After all, most providers and successful mediators are enjoying sizable financial benefits, and the courts continue to inundate private industry with referrals. Indeed, when the mediation process is successful it is a joy for all involved and a reminder of why the process gained such favor in the civil justice system. Yet, like any “system,” when it becomes too standardized and repetitive, marginalization...
The Settlement Drift, Part II
August 13, 2014
What has happened to cause this type of cultural lethargy in mediation? 1. The dilution of the process by mandatory mediation programs. The institutionalization of mediation into court programs has resulted in way too many cases going to mediation that did not belong in that process in the first place. Why? The court viewed mediation as a panacea to court funding issues and a way to manage caseloads, while the mediation community viewed it as a distinct process that is client centered and empowering....
August 13, 2014
What has happened to cause this type of cultural lethargy in mediation? 1. The dilution of the process by mandatory mediation programs. The institutionalization of mediation into court programs has resulted in way too many cases going to mediation that did not belong in that process in the first place. Why? The court viewed mediation as a panacea to court funding issues and a way to manage caseloads, while the mediation community viewed it as a distinct process that is client centered and empowering....
The Settlement Drift, Part I
August 13, 2014
According to commentator Rachel Maddow in her book “Drift,” the way the United States goes to war has gradually become more secretive and less democratic. She observes that in the last half century, the decision to go to war has become too easy. This is contrary to what the Founders of our nation had in mind. Hence, we have “drifted” away from our founding principles about war. The drift in our ability to go to war is similar to what has become of modern mediation in the litigation arena....
August 13, 2014
According to commentator Rachel Maddow in her book “Drift,” the way the United States goes to war has gradually become more secretive and less democratic. She observes that in the last half century, the decision to go to war has become too easy. This is contrary to what the Founders of our nation had in mind. Hence, we have “drifted” away from our founding principles about war. The drift in our ability to go to war is similar to what has become of modern mediation in the litigation arena....
Supreme Court of Texas Clarifies Standards Governing Spoliation
August 13, 2014
Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013) In this case, the Supreme Court of Texas “enunciate[d] with greater clarity the standards governing whether an act of spoliation has occurred and the parameters of a trial court’s discretion to impose a remedy upon a finding of spoliation, including submission of a spoliation instruction to the jury” and held that such an instruction is only appropriate when the destruction of evidence was intentional or deprived...
August 13, 2014
Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013) In this case, the Supreme Court of Texas “enunciate[d] with greater clarity the standards governing whether an act of spoliation has occurred and the parameters of a trial court’s discretion to impose a remedy upon a finding of spoliation, including submission of a spoliation instruction to the jury” and held that such an instruction is only appropriate when the destruction of evidence was intentional or deprived...
Silver and Hyman on Medical Malpractice Litigation
August 12, 2014
Professors Charlie Silver and David Hyman have posted their latest article, "Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation," on SSRN. Their article studies the people behind the cases: the lawyers. It examines the market for legal services and how recent economic changes have impacted that market. Here's the abstract: It’s not easy being a lawyer. “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed...
August 12, 2014
Professors Charlie Silver and David Hyman have posted their latest article, "Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation," on SSRN. Their article studies the people behind the cases: the lawyers. It examines the market for legal services and how recent economic changes have impacted that market. Here's the abstract: It’s not easy being a lawyer. “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed...
Bylaws Mandating Arbitration of Stockholder Disputes?
August 12, 2014
Would a board-adopted bylaw mandating arbitration of stockholder disputes and eliminating the right to pursue such claims...
August 12, 2014
Would a board-adopted bylaw mandating arbitration of stockholder disputes and eliminating the right to pursue such claims...
How Adjusters Can Successfully Mediate Claims
August 12, 2014
Sometimes an alternate method is needed for both sides to consider the time, costs and frustration that can accompany a lingering claim. Mediation is one alternative to taking a case all the way through trial. Lee Jay Berman, a mediator at PMA Dispute Resolution, offered tips on handling mediations during an interview at this year’s Combined Claims Conference held in Orange County, Calif. Besides knowing the facts of the claim and the timeline, he noted the importance of pacing the negotiations...
August 12, 2014
Sometimes an alternate method is needed for both sides to consider the time, costs and frustration that can accompany a lingering claim. Mediation is one alternative to taking a case all the way through trial. Lee Jay Berman, a mediator at PMA Dispute Resolution, offered tips on handling mediations during an interview at this year’s Combined Claims Conference held in Orange County, Calif. Besides knowing the facts of the claim and the timeline, he noted the importance of pacing the negotiations...
Straus Institute Theory-to-Practice Research Project
August 12, 2014
The Straus Institute’s Theory-to-Practice Research Project was begun in 2013 as an ongoing initiative aimed at expanding our knowledge of dispute resolution practices; understanding the perspectives of mediators, arbitrators, judges, corporate counsel and legal advocates; and garnering other empirical information regarding dispute resolution processes and participants’ judgments, decisions and choices. Under the umbrella of the Research Project, the Straus Institute recently conducted three major...
August 12, 2014
The Straus Institute’s Theory-to-Practice Research Project was begun in 2013 as an ongoing initiative aimed at expanding our knowledge of dispute resolution practices; understanding the perspectives of mediators, arbitrators, judges, corporate counsel and legal advocates; and garnering other empirical information regarding dispute resolution processes and participants’ judgments, decisions and choices. Under the umbrella of the Research Project, the Straus Institute recently conducted three major...
