Looking Beyond Law Firm Positions

and

Alternative Dispute Resolution – “ADR”PART I: MEDIATION

Professor Gary G. Geuss ‘86

PART II: SETTLEMENT CONFERENCESProfessor Reagan Boyce ’06

PART III: ARBITRATIONProfessor Roxanne Crocket ’03

PART IV: INCUBATORS & ALTERNATIVE CAREERSProf. Laura Cohen; CSO Asst. Directors Katrina Denny & Andrea Ayvazian

Settlement Conferences

Professor Reagan Boyce ’06Ezra Brutzkus Gubner, LLP

THE SETTLEMENT CONFERENCE

• MANDATORY SETTLEMENT CONFERENCE [“MSC”]

• VOLUNTARY SETTLEMENT CONFERENCE [“VSC”]

• FEDERAL COURTS

MANDATORY SETTLEMENT CONFERENCE

[“MSC”]

WHAT IS A MANDATORY SETTLEMENT CONFERENCE?

• FINAL ATTEMPT TO SETTLE BEFORE TRIAL• CONDUCTED BY A JUDGE, NOT A

MEDIATOR/ARBITRATOR• FREE OPPORTUNITY TO RESOLVE DISPUTE

SHORT OF TRIAL

WHO IS THE NEUTRAL?

• JUDGE, NOT A MEDIATOR OR ATTORNEY

• DIFFERENT JUDGE THAN TRIAL JUDGE

• CHANGES DUE TO BUDGET CUTS – SOME COURTS HAVE DISCONTINUED

MSC BRIEF

• IDENTIFY THE PARTIES AND COUNSEL• FACTUAL BACKGROUND• PROCEDURAL BACKGROUND• LEGAL POSITION OF THE PARTIES• APPLICABLE LAW• PRIOR SETTLEMENT ATTEMPTS• KEY EXHIBITS

PREPARATION FOR MSC• KNOW THE FACTS OF YOUR CASE

• KNOW APPLICABLE LAW AND LEGAL ISSUES

• KNOW CLIENT’S POSITION

• KNOW OPPOSING PARTY’S POSITION

• BE PREPARED TO ARGUE STRENGTHS OF YOUR CASE/WEAKNESSES OF OPPOSING PARTY’S

PREPARATION FOR MSC• KNOW WHAT YOUR CLIENT WANTS IN ORDER TO

SETTLE

• IDENTIFY ANY KEY DOCUMENTS/EXHIBITS TO SUPPORT YOUR POSITION

• HAVE AUTHORITY TO SETTLE – KNOW WHAT TERMS ARE ACCEPTABLE TO THE CLIENT

• KNOW THE JUDGE’S EXPECTATIONS – INFORMED, READY TO PARTICIPATE, ABLE TO SETTLE

WHO MUST ATTEND• TRIAL COUNSEL (OR KNOWLEDGEABLE

COUNSEL IF TRIAL COUNSEL UNAVAILABLE)

• CLIENT OR CLIENT REPRESENTATIVE

• ANY OTHER PARTY WHO HAS SETTLEMENT AUTHORITY– CLAIMS ADJUSTER– INSURANCE COMPANY REPRESENTATIVE– CORPORATION OFFICER/DIRECTOR

VOLUNTARY SETTLEMENT CONFERENCE

[“VSC”]

WHAT IS A VOLUNTARY SETTLEMENT CONFERENCE?

• EARLY ATTEMPT AT SETTLEMENT

• CONDUCTED BY A JUDGE, NOT A MEDIATOR/ARBITRATOR

• FREE OPPORTUNITY TO RESOLVE DISPUTE SHORT OF TRIAL

WHY EARLY SETTLEMENT ?

• OPPORTUNITY TO DISCOVER OPPOSING PARTY’S POSITION

• EDUCATE THE CLIENT

• OPPORTUNITY TO SAVE CLIENT MONEY

EARLY EVALUATION OF THE CASE

• LEARN THE STRENGTHS/WEAKNESSES OF THE CASE• LEARN THE OTHER PARTY’S THEORY OF THE CASE

EDUCATE THE CLIENT

• OPPORTUNITY FOR CLIENT TO LEARN IF STRONG/WEAK POSITION

• SECOND “INFORMED” OPINION FOR YOUR CLIENT TO HEAR

• JUDGE CAN SOMETIMES USE “POWER OF THE ROBE” TO GET POINT ACROSS

SAVE THE CLIENT MONEY• OPPORTUNITY TO SETTLE BEFORE EXPENDING

MONEY ON DISCOVERY, ETC.

• AVOID EXPENSIVE LAW/MOTION DISPUTES

• SOME CASES ARE CLEAR CUT, JUST NEED OPPORTUNITY FOR PARTIES TO TALK

COUNTY WEBSITESCHECK FOR UPDATED INFORMATION

RE: ADR PROGRAMS

Current list is included in materials on GAP website

Federal CourtADR Programs

FEDERAL COURTS• OFFER MEDIATION, SETTLEMENT CONFERENCES, EARLY

NEUTRAL EVALUATION

• LOCAL RULES CONTROL THE PROCEDURES RELATED TO EACH

• DIFFERENCES BETWEEN DIFFERENT DISTRICTS AND BANKRUPTCY COURTS

• SOME COURTS HAVE SEPARATE “ADR RULE BOOK” THAT GOVERNS PROCEDURES

• LOCAL RULES, GENERAL ORDERS, JUDGE’S STANDING ORDERS, COURT MANUAL

MEDIATION IS OFTEN MANDATORY

• CENTRAL AND NORTHERN DISTRICTS REQUIRE EARLY MEDIATION – PRO BONO/PAID

• WIL BE ASSIGNED TO MEDIATION AS PART OF INITIAL CASE STATUS CONFERENCE

• BANKRUPTCY ALSO REQUIRES EARLY MEDIATION FOR ADVERSARY PROCEEDINGS

EARLY NEUTRAL EVALUATION

• SIMILAR TO VSC

– PURPOSE IS TO EDUCATE THE PARTIES AS TO STRENGTHS/WEAKNESSES

– NOT A FORMAL SETTLEMENT ATTEMPT

– ENCOURAGES PARTIES TO SEEK SETTLEMENT AFTER EVALUATION

SETTLEMENT CONFERENCES

• SIMILAR TO MSC

–OFTEN LATER IN THE CASE AFTER DISCOVERY COMPLETED

–PRE-TRIAL LAST EVALUATION

–MAGISTRATE JUDGES OFTEN CONDUCT

SAMPLE BRIEFS

• MSC BRIEF

• VSC BRIEF

WEBSITES• LOS ANGELES COUNTY SUPERIOR COURT

WWW.LASUPERIORCOURT.ORG

• ORANGE COUNTY SUPERIOR COURT WWW.OCCOURTS.ORG

• VENTURA COUNTY SUPERIOR COURT WWW.VENTURA.COURTS.CA.GOV

• RIVERSIDE COUNTY SUPERIOR COURT WWW.RIVERSIDE.COURTS.CA.GOV

• SAN BERNARDINO COUNTY SUPERIOR COURT WWW.SB-COURT.ORG

• CENTRAL DISTRICT CALIFORNIA WWW.CACD.USCOURTS.GOV WWW.CACB.USCOURTS.GOV

• NORTHERN DISTRICT CALIFORNIA WWW.CAND.USCOURTS.GOV WWW.CANB.USCOURTS.GOV

• EASTERN DISTRICT CALIFORNIA WWW.CAED.USCOURTS.GOV WWW.CAEB.USCOURTS.GOV

• SOUTHERN DISTRICT CALIFORNIA WWW.CASD.USCOURTS.GOV WWW.CASB.USCOURTS.GOV