Entries Tagged as 'lawsuit'

Are Judges and Juries like Referees and Umpires? Are Referees and Umpires Fair? Why lawsuits are crapshoots.

Analogies between a finder of fact (a judge or jury) and referees or umpires (the arbiter of a game’s rules) are often made.  It is open to debate whether the analogy firmly holds.  However, it is often interesting to discuss whether any “neutral” decider of an outcome (game rules or rules of law) have biases.

When a party enters the courthouse or arbitration room, each party expects (and hopes) that the person(s) making the decision as to who is “right” is being impartial and fair. It is certainly open to debate how to define fair, which is usually in the eye of the beholder.  Each time I went through arbitration training (to be a private judge), the class is asked to perform an exercise.  The class is broken up into groups of three people.  One person plays the arbitrator, one person the complainant and the other the respondent.  Each group is given the same exact fact pattern and the parties make their cases.  After a specified period of time, the arbitrator makes their ruling which is turned into the person running the training.  Every single time I’ve done the exercise, the distribution of rulings in the room fall out from one  end of the possible spectrum to the other with everything in between.

Why?  Everyone had the same exact case to argue.  Shouldn’t “justice” be consistent?  In reality, several things happen.  First, not every party presents the case the same exact way.  Some people are more effective than others, just as some lawyers are better skilled than others. In a real case, anyone who speaks (lawyers, witnesses) can have good and bad days.  Trials are performances.  Second, every single human being has biases.  We grow up with things we like or don’t like.  We have all had good and bad experiences with things, people and scenarios.  These create the filters through which we see the world.  There is also a theory many attorneys ascribe to which states that whomever the jury or arbitrators likes better in terms of attorneys and litigants will win the case. Likability trumps “rightness”.

Getting back to the sports (referee) analogy, there have been some recent studies showing bias in referees.  And I am not referring to the Tim Donaghys of the world who seek personal gain from their on-the-court rulings.  In the Netherlands, two professors discovered that soccer (the other football) referees are more likely to call ambiguous fouls on taller players.  A study out of England showed that referees favored home teams in their calls, especially in disciplinary sanctions (yellow and red cards).  From the world of Tae Kwon Do, referees tend to award more points to competitors wearing red uniforms.

In the U.S., college basketball referees tend to also favor the home team by calling fewer fouls.  The college refs also try to level the playing field for the teams by issuing “make up” calls, calling more fouls on the team in the lead, and trying to even up the number of fouls between the teams regardless of the aggressiveness of the level of play of each team.  A 2007 study also found that white NBA referees tend to call more fouls on black players than white players.

Even just looking at the games you watch, do you agree with each decision the referee or umpire makes regarding your team?  How about instant replay, the analogy of an appeal in court?  Does the referee get it right even when they have a TV with 20 angles and slow motion to look at each play?  Sometimes not.

So what does all of this tell you?  Try to resolve the case without having someone else decide it for you.  That’s what mediation helps the parties accomplish.  The outcome is on your terms and is unaffected by the biases of others.

Please contact me if you would like to further discuss how mediation can help facilitate a resolution to your lawsuit, divorce or family dispute.

Gamesmanship In A Lawsuit And Discovery Can Cost You

Much of what happens in a lawsuit is gamesmanship, especially during the discovery phase.  Discovery comprises much of the pre-trial phase of litigation where each party seeks to understand what the other side(s) know, what documents they have pertaining to the litigation, what they will say under oath, etc.  Discovery can be expensive.  A Rand Corporation study found that 80% of litigation costs are incurred in the discovery phase.  Since less than 2% of cases filed actually go to trial, discovery ends up being THE cost of litigation for the vast majority of cases. As a result, gamesmanship during discovery can be used as strategic or tactical tool — or abused — depending on how one views it.  Some examples:

  • Asking for voluminous or tangentially relevant documents
  • Taking depositions from an excessive number of people
  • Repeated last minute canceling of depositions
  • Asking inappropriate questions in an interrogatory
  • Refusing to provide requested documents
  • Refusing to answer interrogatories
  • Filing a lot of motions with the court (motions to dismiss, for summary judgment, to compel, etc.)

The goal of the gamesmanship is to create addition expense or agita for the other side, causing them to want to abandon their case or to settle on more favorable terms.  Unfortunately, the usual result is a lose-lose scenario where it creates the same problems for both sides.

In a recent case in California, the court in Clement v. Alegre , 09 C.D.O.S. 12126 imposed a monetary sanction of more than $6600 on one side for abusing the discovery process.  In this case, the plaintiff had objected to answering 20 of 23 interrogatories.  A retired judge acting as discovery referee noted that plaintiff’s objections were “unreasonable, evasive, lacking in legal merit and without justification” and he imposed the monetary sanctions.  Justice J. Anthony Kline for a unanimous appeals panel wrote in salient parts:

We have no difficulty in affirming the trial court’s determination that in this case plaintiffs forced to court a dispute that was not ‘genuine’.

Indeed the record here strongly indicates that the purpose of plaintiffs’ objections was to delay discovery, to require defendants to incur potentially significant costs in redrafting interrogatories that were clear and that did not exceed numerical limits, and to generally obstruct the self-executing process of discovery.

Ample evidence supports the referee’s determination that plaintiffs deliberately misconstrued the question.

Clearly this was ‘game-playing’ and supports the referee’s findings and the sanctions award.

Kline further chastised both sides for failing to mount any “serious effort at negotiation and informal resolution” and used the ruling to remind all lawyers to avoid a similar outcome.

Mediation can help avoid all of these discovery problems.  Discovery is a means to an end — not the end.  The end is resolving your dispute.  Mediation helps get resolutions on your terms.  Mediation seeks to find win-win solutions. If you’re looking for a resolution to your dispute, call me at 732-963-2299 or contact me online.

Lost his Pants, Lost his Job, Lost his Lawsuit, Lost his Appeal

The saga of the $54 million lost pants lawsuit appears to finally be over.  As you will recall, a judge in DC sued a cleaner for $54 million for losing a pair of pants.  Roy Pearson subsequently lost the lawsuit and his job as a judge (in part due to the lawsuit).  Now his appeal has been denied.  Excerpted from the Legal Times:

The three-judge panel, consisting of Judges Noel Kramer and Phyllis Thompson and retired Judge Michael Farrell, ruled against Pearson on every argument he made at oral argument in October.

In the opinion, Kramer says Pearson’s argument that a “Satisfaction Guaranteed” sign is an unconditional and unlimited warrant of satisfaction has no basis and that when trial Judge Judith Bartnoff rejected that claim, it showed “basic common sense.”

Kramer’s opinion says Pearson “defies logic” by arguing that the “Same Day Service” sign that the Chungs had in their store was a false statement unless same-day service was always and automatically provided.

Pearson still has a lawsuit pending against the District of Columbia for not being re-appointed to his administrative law judgeship.

Costs of Discovery Leading to More Settlements

Yesterday, the American College of Trial Lawyers and the Institute for the Advancement of the American Legal released a report entitled “Interim Report on Problems Associated with Discovery”.  Discovery is the pre-trial process where each side engaged in litigation gives and receives information about the case.  This information can include written questions (interrogatories), production (transfer) of documents and other evidence, as well as deposing (interviewing under oath) various witnesses, experts and litigants.  The purpose of discovery is to allow each side to assess how good a case they have (or not) and is guided by rules of court and evidence.

Discovery can be costly and disruptive.  Imagine having to produce records for the other side (under subpoena and other rules of court) that might be extensive, hundreds of bankers boxes.  Or having to spend days away from work in a deposition.  So one can imagine that using this “cost” against the other side becomes a bit of leverage to be used.  The study bears that out.

Nearly 1500 highly experienced lawyers (on a remarkable 42% return rate) answered the survey.  Some of the findings:

  • The civil justice system is in serious need of repair; it takes too long and costs too much. Deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.
  • The discovery system is broken. Discovery costs far too much and has become an end in itself.  One respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.”
  • Electronic discovery (i.e. emails and other electronically stored datam which can be voluminous), in particular, needs a serious overhaul. It is described time and time again as a “morass.” Concerning electronic discovery, one respondent stated, “The new rules are a nightmare. The bigger the case, the more the abuse and the bigger the nightmare.”
  • Local Rules (rules that are used by a single court or vicinage) are described as “traps for the unwary” and many think they should either be abolished entirely or made uniform.
  • Nearly half of the respondents said that notice pleading (seeking judgment on the case without trial) has become a problem because extensive discovery is required to narrow the claims and defenses and 57 percent said that with notice pleading, motions to dismiss on the pleadings are not effective in limiting claims and narrowing litigation issues.
  • More than 76 percent said that answers to complaints likewise do not accomplish the goal of narrowing issues. This suggests that a further look at notice pleading may be in order.
  • Only 34 percent of the respondents thought that early discovery disclosure (rules intended to reduce discovery) reduces discovery and only 28 percent said that it lowered litigation costs.
  • Ninety-two percent said that the longer a case goes on, the more it costs (this seems like a silly question to ask…what did the other 8% think, it gets cheaper) and 85 percent thought that litigation in general and discovery in particular are too expensive.
  • Sixty-four percent said that the economic models of many law firms encourage more discovery than is necessary.
  • Expert witness fees are a significant cost factor driving litigants to settle, ranking just slightly behind trial costs and attorneys fees in that respect.
  • Forty-five percent believe that there is discovery abuse in almost every case (almost equal in amount between plaintiff and defense counsels)
  • The survey respondents especially like judges to require ADR (55 percent said it has been a positive development in managing cases) and more than half thought arbitration is less expensive and faster than civil litigation.
  • Fifty-three percent said that the cumulative effect of discovery-rule changes since 1976 has not reduced discovery abuse.
  • 87 percent agree that electronic discovery is too costly, and 76 percent agree that electronic discovery issues are not well understood by judges.
  • Nearly 86% of respondents say discovery sanctions are seldom imposed
  • Nearly 71% believe counsel use discovery as a tool to force settlement
  • 56% said that the time required to complete discovery is the primary cause of delay in the litigation process, and another 20% of respondents cited the primary cause of delay as attorney requests for extensions of time and continuances.
  • 87% said discovery is too expensive and 85% said litigation is also too expensive
  • Nearly 81% report that their firms turn away cases when it is not cost-effective to handle them
  • 83% of respondents believed that litigation costs drive cases to settle that should not settle on the merits
  • Over 94% believed trial costs are an important factor in driving cases to settle, and a nearly equal number believe the same about attorney fees
  • Nearly 73% of respondents report that one-fourth or fewer of their cases are processed through ADR.
  • Over 82% view cases settling without trial due to court-ordered ADR as a positive development.

Overall, the report is a pretty stinging indictment of the civil justice system.

One of the criticisms of mediation is that it is “cheap discovery”.  What is so wrong with finding out early on what the other side has?  Mediation serves a useful purpose in getting the issues on the table early and effectively.  I’ve held mediations where attorneys learn new things from their clients (that were critical to their case).  I’ve had others where attorneys can quickly see how poor a witness their client will make.  New information presented in the mediation can change valuations of a case.  I encourage informal information exchange between the parties prior to mediation.

Simply put, mediation is a major part of the cure for the ills of discovery and of civil justice.  If you’re interested in saving time and money on your dispute, litigation or divorce, please feel free to contact me to discuss things further.

The Cost of Justice in NJ

The State of New Jersey is currently going through the budget process for the fiscal year that begins in July 2008.  Like many states, NJ is projecting a large budget deficit due to the downturn in the economy.  As a result, all government agencies are being asked to tighten their belts.  The judicial branch of government (the courts) is being asked to reduce their budget by $27 million (total proposed budget is $636 million and the courts collect roughly $64 million in fees; the total judicial budget runs about $71 per capita).

Judge Phillip Carchman, acting Administrative Director of the Courts testified before the Senate Budget committee this week.  In his remarks, he addressed the difficulties of reducing costs in the Judiciary:

The proposed significant budget cuts present unique challenges for the judiciary. In tough fiscal times, when government necessarily looks to reduce spending, people need the courts more than ever. Court business grows rather than shrinks. The judiciary is a people-driven branch, created and functioning to resolve disputes. We cannot eliminate court sessions, particularly in difficult economic times, to absorb the substantial cuts allocated to us. To the contrary, we see record-setting increases ahead in court filings and workload.

He gave some specific numbers in regards to foreclosure actions:

Economic indicators tell us that by the end of this court year, case filings will reach historic highs. For example, foreclosure filings in New Jersey for the first quarter of 2008 exceeded 4,000 per month, a staggering 44 percent increase over the same period last year. This year we are on track to receive an anticipated 49,000 foreclosure filings. This is double the number we received in 2006, just two years ago. And our best estimate is that we may double this number yet again next year.

In the Special Civil Part (claims for under $15,000 which have expedited and relaxed rules), credit card defaults are driving the case loads to record heights, some 621,000 cases projected for this year which is 100,000 more than last year.

He goes on to say how tough economic times tear families apart, increasing demands on the family part (for divorces).  It also increases demands on the criminal courts.

The courts in NJ manage their cases to ensure timely hearings.  Each case is set against a standard.  Cases that are backlogged (behind that standard) account for 12% of all cases.  This is roughly the same number as it was last year despite the caseload increasing by 8%.

Removing the backlog, increasing the speed (and lowering the cost) of “justice” is a primary motivator as to why the courts have a CDR (complementary dispute resolution) program.  Court-mandated mediation resolves roughly 1/3rd of all civil division cases directly and yet only 1.8% of all cases filed make it to trial.  This means that mediation helps set the framework for a later settlement.  Without mediation as a core part of the NJ court process, the courts would be so backlogged as to be unable to operate efficiently.

NJ a Judicial Hellhole?

The American Tort Reform Association is a group that claims its mission is to bring “real justice in our courts.”  It was founded in 1986 by the American Medical Association and the American Council of Engineering Companies.  Their website claims, “Since that time, ATRA has been working to bring greater fairness, predictability and efficiency to America’s civil justice system. Those efforts have resulted in the enactment of state and federal laws that make the system fairer for everyone. Further, ATRA is a nonpartisan, nonprofit organization with affiliated coalitions in more than 40 states. We are the only national organization dedicated exclusively to tort and liability reform through public education and the enactment of legislation. ATRA’s membership is diverse and includes nonprofits, small and large companies, as well as state and national trade, business, and professional associations.”

Of course, how “fairness” is defined is certainly debatable. And the fact that the other side of the dispute (namely the consumer bringing the tort claim) is not part of their consortium makes you wonder how fairness is obtained with only one party at the table.

ATRA publishes an annual report of what it considers to be “unfair” judicial jurisdictions called Judicial Hellholes.  This year’s report ranks the following jurisdictions as the worst:

  1.  South Florida
  2. Rio Grande Valley and Gulf Coast Texas
  3. Cook County, Illinois (Chicago)
  4. West Virginia
  5. Clark County, Nevada (Las Vegas)
  6. Atlantic County, New Jersey

You can read the full report at their website (they also list out some star jurisdictions as well), but I want to focus on their NJ comments.  Their summary:

Personal injury lawyers seem to have gained a monopoly in Atlantic County, a new addition to the Judicial Hellholes report. New Jersey is known for particularly plaintiff-friendly laws, admitting junk science in court and hosting lawsuits from all over the country against their state’s own economic driver, the pharmaceutical industry. All these elements were on display in the Vioxx litigation in Atlantic County. There is also evidence that litigation fairness is deteriorating throughout the Garden State, leading to the formation of the New Jersey Lawsuit Reform Alliance in October 2007.

The report focusses on the well publicized Vioxx case, a $2.6 million verdict in an Accutane case causing inflammatory bowel disorder and a $5.7 million verdict in a slip and fall case. The report then expands its covereage to all of NJ, noting the following “litigation madness”:

  • (McDonalds part deux) A suit against Starbucks for not securely affixing the lid of his Chai tea. He claims the tea spilled and caused burns to his hand. The suit seeks compensation for ongoing medical treatment, mental anguish and a claim by his wife “for the loss of certain services from her husband.”
  • The fact that certain OB-GYN’s have resorted to having patients sign liability limitations (or have stopped delivering babies) to reduce their medical malpractice insurance premiums.
  • A jury award in Essex County (Newark) of $70 million in compensatory damages, including $50 million in pain and suffering, to newborn who was severely injured due to allegedly negligent medical care.  The report claims that, “While the case was already a heart wrenching one, the trial court judge allowed the plaintiff’s lawyer to make extraordinarily prejudicial arguments throughout
    the trial and in summation, which effectively spurred the jury to punish the defendant, rather than arrive at fair compensation.”  This case is on appeal to the NJ Supreme Court and ATRA has filed an Amicus Curiae (“friend of the court”) brief in the case.
  • Lawyers Can Knowingly Bring a Baseless Claim. According to a new ruling by a New Jersey appellate court, lawyers can now file claims on behalf of clients who they know have baseless claims and are suing only for malicious reasons. As one of the attorneys involved in the case said, “They have created a situation where a client goes to a lawyer and says, ‘I want to file a defamation action even though there was nothing [said] about me that was untrue and I have an improper motive.” The lawyer can then file the lawsuit and, according to the attorney, neither of them is liable.

The report listed as “signs of hope” in NJ several cases that had been overturned on appeal to the NJ Supreme Court and the case of Howe v. Hoffman-LaRoche, in which the court ruled that Michigan resident Howe has no basis of claim in NJ.

If you have any thoughts on this, feel free to comment.

Man Sues 8-Year-Old and Creates Public Debate

The Los Angeles Times has an intersting article here about a man who was injured on the ski slopes in Colorado and then sued the 8-year-old boy who he claims caused his dislocated shoulder and torn rotator cuff for the $75,000 in medical bills.

Some exerpts:

To many, last winter’s snowy run-in has become a symbol of excessive litigation.

The plaintiff, David J. Pfahler, and his wife left their home in Allentown, Pa., this holiday season because they were deluged with angry calls. “We’ve never seen this kind of attention to a case,” said Pfahler’s attorney, Jim Chalat. “If you’re skiing as Pfahler was, slowly and in control on an intermediate slope, and a 7-, 8-, 9-year-old comes bombing down and crashes into you, the child has a technical responsibility to you.”

The young skier’s parents, Susan and Robb Swimm, are happy the public shares their outrage. “People are really angry about this, and they should be,” she said. “What kind of a message are we sending to our children if we’re just going to turn around and sue after an accident on a ski slope?”

Danger: Avoid Death?

When I mediate commercial cases that are referred to me by the court, they range the spectrum of topics and subject matter.  I’d say that in most of the cases I get, the parties have legitimate claims and defenses.  The disputes are a matter of a loss of communication between the parties or it is simply a disagreement over how to interpret something ambiguous.

In a response to what they feel are extortionist lawsuits, the Michigan Lawsuit Abuse Watch (M-LAW) has instituted an annual contest for the Wackiest Warning Labels.  This year’s winner is a label on a small tractor that warns: “Danger: Avoid Death”.  Second place was for a label found on an iron-on T-shirt transfer that warns: “Do not iron while wearing shirt.”  Third place was for a label on a baby-stroller featuring a small storage pouch that warns, “Do not put child in bag.”

Honorable mentions: a warning label on a letter opener that says: “Caution: Safety goggles recommended.”;  and a warning found on Vanishing Fabric Marker which cautions users:  “The Vanishing Fabric Marker should not be used as a writing instrument for signing checks or any legal documents.”

“Predatory lawyers know they can file ridiculous lawsuits against innocent product makers and blackmail them into cash settlements — even in cases in which a user has ignored common sense,” said M-LAW President Bob Dorigo Jones. “The real issue is not the obvious warning labels, but the billions of dollars in litigation costs passed on to consumers — a kind of a “lawsuit tax” we all pay. That is why M-LAW urges judges and policy makers to support civil justice reform.”

Those who oppose the contest said that while some warning labels may seem silly, even dumb warnings can save lives.  “Warning labels save lives, so it’s shameful that this group would make fun of them in order to further its campaign to weaken our civil justice system,” said Kathleen Flynn Peterson, president of the American Association for Justice, a trial lawyers group.

If you’re looking for someone to mediate and help resolve your lawsuit, please give me a call at 732-963-2299.