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What are your chances at trial? How well do plaintiffs and defendants do in state civil courts?

The U.S. Department of Justice’s Bureau of Justice Statistics has released the “Civil Justice Survey of State Courts, 2005“.  The 2005 CJSSC was the first time that the series examined general civil trials concluded in a national sample of urban, suburban, and rural jurisdictions.  Past reports only looked at the 75 largest counties in the U.S.

Highlights of the report:

  • 26,950 general jurisdiction cases in state level courts were disposed of in 2005.
  • Among jurisdictions that provided totals for both trial and non-trial general civil dispositions in 2005, trials collectively accounted for about 3% of all tort, contract, and real property dispositions in general jurisdiction courts.  (Note: only 1.8% of state cases in New Jersey end in a trial.)
  • A jury decided almost 70% of the general civil trials disposed of in 2005.
  • About 60% of the general civil trials included in the survey involved a tort claim and about a third involved contractual issues.  The rest primarily involved real property.
  • Plaintiffs won in 56% of trials overall.  A higher percentage of plaintiffs won in contract (66%) than in tort (52%) cases.
  • The median damage award for plaintiffs who won monetary damages in general civil trials was $28,000.  Contract cases in general had higher median awards ($35,000) than tort cases ($24,000).
  • Punitive damages were awarded to 5% of plaintiff winners in general civil trials in 2005.  It was sought in 13% of cases.
  • In the nation’s 75 most populous counties, the number of general civil cases disposed of by jury or bench trial declined by about 50% from 1992 to 2005.
  • Bench trials (57%) had a higher percentage of business litigants than jury trials (39%) and were likely to be decided in less time than jury trials. Judges were more likely than juries to find for plaintiffs. Plaintiffs won in 68% of bench trials, compared to about 54% of jury trials.
  • The median damage awards in 2005 were statistically similar for both jury and bench trials overall.  Contract cases tried before a jury ($74,000), however, had significantly higher median final awards than contract cases decided by a judge ($25,000).
  • Almost half (47%) of all civil bench and jury trials in 2005 had multiple defendants, and more than a quarter (29%) had multiple plaintiffs.
  • Among tort trials, plaintiffs were most likely to win in cases involving an animal attack (75%), followed by motor vehicle accident (64%), asbestos (55%), and intentional tort (52%) cases. Plaintiffs had the lowest percentage of wins in medical malpractice trials (23%), product liability trials that did
    not involve asbestos (20%), and false arrest or imprisonment trials (16%), compared to plaintiffs in other tort cases.
  • In contract cases, plaintiffs won in the majority of trials for all case types except subrogation (28%), which involves an insurance company seeking to recover the amount paid on behalf of a client. Mortgage foreclosure cases, in which the plaintiff was either a mortgage company or other financial lending institution, had the highest percentage of plaintiff winners (89%) of all tort and contract cases in 2005.
  • Almost two-thirds (62%) of all plaintiff award winners were awarded $50,000 or less. A small  percentage (about 4%) of all plaintiff award winners were awarded $1 million or more.
  • In 2005, jury trials for general civil cases lasted almost four days on average. Bench trials lasted almost two days.
  • Cases heard before a jury took more time from filing of the complaint to rendering of the verdict than those heard before a judge. On average, the processing of a case required an additional half year for a jury trial (26 months), compared to a bench trial (20 months).
  • Appeals were filed with the trial court in 17% of general civil trials concluded in 2005.  Plaintiffs filed appeals in 5% of general civil trials in which they prevailed, and in 15% of civil trials in which they did not win any monetary award. Defendants gave trial court notice of appeal in 12% of civil trials with a plaintiff winner, and in 2% of trials in which the plaintiff did not receive an

Incidentally, 4 New Jersey counties were used in the study: Bergen, Essex, Middlesex (all in the 75 largest nationwide) and Union.

What’s the take-away for disputants?

  • Your case is unlikely to see a trial.  If it does, your case will drag out for 2+ years and…
  • Your chances of winning (as plaintiff or defendant) is a roughly 50-50 crap shoot (factoring in a margin of error for sampling error).
  • Then there is a 1/5th chance the case will continue on appeal.
  • The chances of winning punitive damages or a windfall are very small despite the aspirations of plaintiffs.

Obviously, each case is unique to a large degree, but in every case that comes before me as mediator or arbitrator, both parties think they are right and will prevail.  The statistics do not bear that out (and it’s impossible for both sides to win at trial as it’s not set up to find win-win outcomes as mediation tries to do).

The litigation process is changing, which lends itself to mediation or arbitration.  Mediation and arbitration gets the case resolved in a shorter period of time for less money while retaining the due process each person is entitled to.  It’s your day in court outside of court.

If you’re looking to resolve your dispute less expensively and more quickly than going to court, please contact me to see how I can help you.

Utilizing Mediation Clauses in Estate Planning

Professors Lela Love and Stewart Sterk of Cardozo Law School have written a paper which addresses the use of mediation clauses in estate planning.  The highlights are as follows:

  • In recent years, a number of states have developed mediation programs for resolution of probate disputes.  Measured by surveys of participant satisfaction, these programs have been successful. To  date, however, use of mediation in probate disputes has largely been reactive; once a dispute arises,  courts offer mediation as an alternative, or, in some states, require the parties to try mediation. Mediation clauses in a will may not be advisable in all cases (a decedent who wants to maintain firm control; a bully or wimp among the beneficiaries)
  • In the context of disputes connected to wills, where family members are disputing in the shadow of a
    traumatic event—the death of a loved one—and where the long-term relationships of family members are being reconfigured in light of the death, the relationship benefit of mediation may be particularly important.
  • In the Probate Mediation Program in the District of Columbia Superior Court statistics for the month of October, 2006, indicate that parties are “satisfied” or “very satisfied” with the process in 80% of the cases, with the outcome of mediation in 73% of cases, and with the neutral’s performance in 86% of the cases.  In a New Hampshire survey of parties and attorneys involved in probate mediation, 94% of respondents agreed or strongly agreed that the mediator was able to facilitate discussion successfully; 86% agreed that the mediator helped explore different options to resolve the dispute; 80% agreed that mediation saved time and/or money; and 97% reported overall satisfaction with the mediation process.
  • In the Fulton County Probate Court in Atlanta, Georgia, one of the pioneering courts in mediating
    probate disputes, the settlement rate is approximately 65%.
  • Why mediate a probate case?  (Enforce testator’s wishes; maximize value of assets passed on to beneficiaries; preservation of family privacy; preservation of family harmony)

There are many reasons why wills are contested from validity to undue influence to capacity to enter into a will to unclear wishes of the testator.  Family disputes ruin relationships.  The decedent may not be aware of family rifts at the time the will is drafted.  These family rifts may have their causes in the childhood eras of the beneficiaries.  Mediation can help heal these family rifts.  And it can be helpful during any phase of the estate planning process — pre-drafting, pre-death, post-death as well as during the probate process.

If you would like to discuss how mediation can help you and your family, please feel free to contact me.

Apple Mac Dispute to go to Mediation

Apple Computer and Psystar, a make of Mac clones, agreed to mediate their copyright infringement and anti-trust case.  It says a lot for mediation as Apple is a large company with a lot of money and a desire to protect a core product.  I’ll be curious to see if mediation resolves this.

The Pants

The appeal in the $54 million missing pants lawsuit was heard today.

The three-judge appeals panel peppered former judge Roy Pearson with questions about whether he was aware of other rulings in which a promise of “Satisfaction Guaranteed” meant that unsatisfied customers should be entitled to whatever damages they believe were appropriate.

“You’ve got to help us figure out what it means,” Judge Phyllis Thompson said. “You haven’t pointed me to a case which reaches a conclusion you would have us reach.”

Pearson did not provide any examples, but maintained that his lawsuit had merit under the city’s Consumer Protection Act.

Stay tuned.

Suing God

Can you sue God?  That was a question a court in Nebraska was asked to answer.

Nebraska Senator Ernie Chambers sued the Almighty in September 2007, seeking a permanent injunction to prevent God from committing acts of violence such as earthquakes and tornadoes.  However, Judge Marlon Polk has thrown out the case saying there was no evidence the defendant has been served (been given the lawsuit papers and complaint in the proscribed manner).  Polk found “there can never be service effectuated on the named defendant.”  The case was dismissed with prejudice (meaning it cannot be refiled), but Chambers can appeal the judge’s decision — which he is considering.

“It is a thoughtful, well-written opinion,” Chambers said. “However, like any prudent litigator, I want to study it in detail before I determine what my next course of action will be.”  Chambers, an agnostic senator who has served for 37 years but cannot run for re-election due to term limits, is trying to draw attention to frivolous lawsuits and whether certain lawsuits should be prohibited.

This leads to a few interesting questions.  If God is the “true judge” (as many religions deem H,im so), how can others judge Him?  If all humans are subjects of God (who bears the power of life and death), how could a human judge make an unbiased ruling? If many religious organization purport to be the representatives of God, can you sue them as God’s agent on earth?

Even more, could this case be mediated? (I would say yes, since God does negotiate with Abraham, Moses and others in several biblical stories.)  If so, who would the mediator be?

Disbarred AZ Mediator Convicted of Theft, Fraud

I’ve posted before about unscrupulous mediators.  Here’s another one from the Arizona Republic:

A man who impersonated an attorney was convicted of 23 counts of theft and one count of fraud Thursday in Maricopa County Superior Court.

Gary Karpin, 57, was then taken into custody pending a sentencing hearing.

Karpin specialized in divorce cases, technically as a mediator and legal-document preparer, but he presented himself as an attorney.

In fact, though he had been a prosecutor and defense attorney in Vermont, he was disbarred in that state in 1993 and was later disbarred in Maine as well. He was not a member of the State Bar of Arizona, though he set up his office in Phoenix, which he called Divorce with Dignity, in 1996.

“We all thought he was a lawyer,” said Bill Ludlow, who had hired Karpin to help him and his wife through a divorce.

But when Ludlow realized that Karpin was dating his wife during the time he was helping them divorce, he started doing research and learned that Karpin had been disbarred. He filed a civil lawsuit against Karpin.

Then, Ludlow claimed, Karpin harassed him, filing frivolous lawsuits against him and calling his employer.

You can read the article for more details. Like any other profession, mediators are largely hard working, trustworthy and competent but there are a few bad apples.  Like any good consumer, someone looking for a mediator should check out the background of their mediator.

Also, be cautious about having the mediator prepare anything more than your Memorandum of Understanding.  You should always use review attorneys and you should have one of the review attorneys prepare your property settlement agreement along with the court filings.  It may cost slightly more, but it protects you against problems down the road.  It can also bring an unscrupulous mediator to light much more quickly.

After the Divorce, Make Sure to Follow up

One potential pitfall following a divorce is failing to change beneficiaries on various plans from your ex-spouse to someone else (unless you want your ex-spouse to inherit your assets).  A case is now before the US Supreme Court dealing with this exact matter.  In a divorce decree between William and Liv Kennedy, the wife waived her right to his retirement account (in exchange for other assets).  However, he forgot to change the beneficiary to his daughter Kari with his former employer.  Upon his death, the $402,000 account went to Liv Kennedy since she was listed as beneficiary.  The main federal law on employee benefits requires companies to follow strictly their workers’ wishes as reflected in their designations.

Daughter Kari is also the executor of the estate and sued to obtain the money that she feels her father expressly did not want his ex-wife to get.  The trial judge sided with the estate and order the company to deliver the funds to the estate.  An appeals panel overturned that decision.  Now the Supremes will get their say.  The case is Kennedy v. Plan Administrator, 07-636.

The lesson here is that once your divorce is final, remember to change the beneficiaries on all of your accounts if that’s what you want.  Also, remember to change contact information and the like (name changes if applicable) with financial accounts, insurance, employers, etc.

Can you sue for a raise?

Two interesting cases have come up in NJ neighbors dealing with raises for judges.  In New York, judges have not been granted a raise in salary by the legislature and governor in 10 years.  Their salaries were tied to the fate of those of the legislators and governor who have not been given a raise in that same period.  The primary argument being used is that this violates the doctrine of separation of powers, where raises are tied to the other branches and consequently other political activities such as campaign finance reform.

But this whole concept of suing for a raise raises an interesting question (pun intended).  Who is making this decision and ruling?  The judges potentially impacted.  Doesn’t this present a huge conflict of interest which should disqualify every state level judge in the NY?  Is there no confirmation bias going on here?  Have judges been quitting because of the low pay (or not running for re-election)?  (The answer it seems is no.)  Has the judiciary’s independence been infringed by lack of legislative and executive action?  Apparently not given a state court judge ruled in the judiciary’s favor.  The case has been appealed (and the ruling stayed) and will be heard on November 17.  Stay tuned.

Meanwhile, across the Delaware in Pennsylvania, the exact opposite has happened.  The legislature passed a pay raise bill for itself, executive branch officials and judges back in 2005 only to repeal it 4 months later in response to public backlash.  In September 2006, the state’s Supreme Court ruled that the legislature could not legally cut a judge’s salary and invalidated the repeal for the judiciary.

However, one state superior court judge, Joan Orie Melvin, did not want to accept the raise.  She was forced to sue when the state would not adjust her paycheck to reflect the old amount.   Commonwealth Court judges said she could not, claiming it would be illegal for her to take less than the full salary because it could establish a ”two-tiered system of judicial compensation.”  Without holding any hearings, the Supreme Court justices – in a one-sentence order – have backed the lower court’s decision.  The judge can donate the extra salary or return it to the state, but she must accept it – and pay taxes on it, the court said.


Financial Troubles Hit Legal Aid

The subprime mortage crisis has impacted the Legal Services of NJ, the group who represents indigent litigants.  Most of their revenues come from the interest on the trust accounts all lawyers in NJ are required to have.  Trust accounts are used to hold client’s money for various transactions such as real estate closings.  In the second quarter of 2008, this source of funds has shrunk by 48%.  This had led to the closure of Legal Services offices along with the layoff of attorneys.

You can read more in the Philly Inquirer.

More Moms Now Paying Child Support

A study performed by the American Academy of Matrimonial Lawyers (AAML) showed that more mothers are paying child support than was the case 5 years ago.  55% of the survey respondents have cited an increase in the number of mothers who have been ordered to make child support payments over the past five years. Only 1% of AAML members saw an increase in fathers making child support payments during the past five years while 44% who noticed no difference.

In addition to the question regarding which party is now making child support payments, the divorce lawyers have also noted changes in the size of those payments. 42% of the survey respondents said that the amount a spouse must pay has increased over the last five years.  14% said the payments have gotten smaller, while 44% have cited no change

The changes were attributed to the general changes in society.