Entries Tagged as 'settlement'

Unattractive? Ugly? Maybe you should settle your lawsuit…

A recently published study by Cornell University indicated that “ugly” or unattractive people who are defendants in criminal trials are 22% more likely to be found guilty and are given longer sentences on average (22 months longer) than attractive people.  The scientists conducting the study tried to look at why this occurs.  Study co-author Justin Gunnell said:

Information processing can proceed through two pathways, a rational one and an experiential one. The former is characterized by an emphasis on analysis, fact and logical argument, whereas the latter is characterized by emotional and personal experience.  Our hypothesis was that if we identify the two groups, then the experiential people are more likely to focus on extralegal factors, which shouldn’t have any bearing on the legal process.  Attractiveness was the variable we used.

The study confirmed what it referred to as an “unattractive harshness effect.”  Jurors who processed information in more of an “experiential” manner were the ones who gave longer sentences and were more likely to convict.

Psychologists and sociologists have long known of the advantages which more attractive people have:  they are more likely to be hired and are generally paid more than less attractive people.  Hollywood is practically defined by attractiveness.

Most lawyers will say that the outcome of many trials hinges on how well the jurors or judge “like” the litigants, lawyers and witnesses who appear in front of them.  The trier of fact gives credibility or believes who they think is more attractive.

As I’ve indicated many times, settling a lawsuit or divorce matter is almost always in the best interests of all parties due to the unknowns of trial.  Part of the unknown results from human biases, some of which were detailed in this study.  We all like to think of a trial as “justice” but the reality sometimes is that it is a popularity or beauty contest.

If you would like to consider mediation to resolve your lawsuit or divorce, please feel free to contact me to discuss your situation further.

Get A Settlement Done And On The Record Before It Is Too Late

The plaintiff and defendant in a New York medical malpractice lawsuit has come to a putative settlement agreement just before the jury rendered a verdict.  The parties failed to get the settlement on the record prior to the jury verdict and the settlement was invalidated and the verdict upheld.

In 1996, plaintiff Mahmoud Diarassouba underwent surgery to repair a chronic condition in his left knee.  Shortly thereafter, he experienced pain and discomfort in his right knee which he blamed on the surgeon and anesthesiologist for improperly repositioning the right leg during the long operation.  The condition became chronic.  In 2003, a jury found in his favor for $1.5 million.  The verdict was thrown out due to improper admission of some testimony and a retrial ordered.  The case was tried again in 2007 and while the jury deliberated, plaintiff’s counsel advised the defense counsel his client would accept a $150,000 settlement.  Defense counsel agreed.

Moments later, the judge informed the parties that they jury had a verdict awaiting them.  Plaintiff’s counsel asked the judge if the settlement could be read into the record prior to the jury verdict being read.  The judge replied in the negative.  “Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to,” the judge said. “An agreement is an agreement, counsel.”  Defense counsel remained silent. The verdict rendered by the jury was for $1.45 million.  The defense then moved to enforce the settlement which the judge granted.  Plaintiff appealed.

Last week, the appellate court ruled that the settlement was invalid.  They found that there was no written, agreed to settlement as required by the court rules.  Neither was it placed on the record in open court.  Further appeals are expected.

I have frequently advocated for my clients to settle early in litigation.  Many cases settle on the courthouse steps.  Waiting until the last possible moments to settle is not a wise course of action, as this case illustrates.  Thirteen years later, the parties in this case do not have any resolution.

Why It Is Better to Settle a Lawsuit Early

I tell all my civil mediation clients the same thing:  If you’re going to settle, settle early.  Why?  That gets to why a litigant should settle a lawsuit in the first place.

When a litigant settles a case, they are essentially “buying off” two costs.  The first is the risk of losing the case.  This applies whether you are the plaintiff or defendant.  As you know from an earlier post, statistically winning and losing in state courts are a roughly 50-50 crap shoot.

The second are transactional costs.  These are the costs for the attorney, court costs and fees (filings, motions, etc.), experts costs, costs for a court reporter in depositions, etc.  In most cases, these are cost that you do not get back regardless of the outcome of the litigation.  80% of the costs to try a case come in the discovery phase. The discovery phase is the pre-trial period when documents are exchanged, depositions are taken, experts are engaged to do studies, etc.  Discovery is essentially the phase where you learn what the other side knows (and vice versa) to be able to value a case.  Settling on the court house steps just before or during trial does not eliminate these costs.

The further litigants get into the discovery process, something call “escalation of conflict” occurs.  In essence, the more you’ve spent, the more you want to spend to get the outcome you want.  Thus, settlements become harder to reach (and most people tell me the later settlements were the same as what they could have had earlier in the process).

How does mediation help?  Mediation gets the parties talking to each other in a structured environment, which accelerates the discovery process by getting the information exchange going early.  If parties need to verify claims made in the mediation, they can do so before the settlement is finalized.

Feel free to contact me if you would like to discuss further how mediation can help you save money and resolve your lawsuits.

Mediation, Divorce and Children

Three professors at the University of Virginia recently completed a 12-year study that looked at the effects of mediation on divorcing couples and their children.  The study looked at people who were unable to come to agreement on custody decisions on their children and have petitioned the Virginia court for a hearing.  Thirty-five families were sent to mediation and thirty-six were sent through the court’s adversarial process.  The assignments were randomly done.

So what happened?

The mediation group:

  • Settled a large percentage of cases otherwise headed for court
  • Settled their disputes in half the time
  • Had increased satisfaction with the outcome
  • Parents in mediation were 80% more likely to make all decisions without a third-party decision maker (a judge or arbitrator)
  • When unable to come to full agreement in mediation, many parties still settled out of court
  • Parents were more satisfied at 6-weeks, 1.5 years and 12 years after the original agreement.
  • Long term family relationships and psychological adjustment were better in the mediation group
  • An average of 5 hours of mediation resulted in significant increases in child-parent contact over the 12 year period:
    • 30% of non-residential parents saw children once a week or more vs. 9 % of those in the adversary group
    • 54% of non-resident parents spoke to their children once a week vs. 11% of those in the adversary group

Please contact me for more information about divorce mediation.

http://www.blackwell-synergy.com/doi/abs/10.1111/j.1744-1617.2005.00005.x

How Enforcable is a Mediated Settlement?

One of the advantages of mediation is that the parties agree to their own settlements, unlike a trial, where a jury or a judge will impose their own settlement on the parties in a judgment.  But what happens when a party tries to either get out of a deal or go back to the court to try some related items?

Well, a Florida appeals court recently decided a case on this topic.  Robert and Terry Spring sued a medical transport company as a result of injuries sustained in an auto accident.  The parties, along with the respective insurance companies, attended a mediation in March 2006 at which a settlement was reached.  The Springs received $600,000 in compensation from 3 insurance carriers.

As is usual practice in a settlement, a general release, hold harmless and indemnity agreement was incorporated to release the suit.  The release read, “It is expressly understood and agreed that the acceptance of said consideration is in compromise of disputed claims, and that this General Release is not an admission of liability or negligence on the part of the released parties, but is made for the purposes of terminating the above-referenced dispute and preclude any litigation between the parties.”

After signing the final agreement, one of the insurance companies wanted to seek reimbursement of attorneys fees from another insurance company for their defense of the insured.  The trial and appellate courts both denied their claim, stating that: (1) in their general release they’ve given up all claims and did not make an exception for legal fees, (2) they had the opportunity to incorporate that exception into the settlement since they participated in it and (3) the plain language of the release rules.

So, the lesson here?  Understand what you are agreeing to and make sure you’ve taken all of your interests into account.

The Disappearing Jury Trial

An article in the Maine Sunday Telegram brings up an interesting point about trials.  The trend at all levels in civil cases is that fewer and fewer cases are making it to trial and more and more are settling beforehand.  Of all the cases filed, depending on jurisdictions, less than 5% make it to a trial.  This means that more than 95% of cases settle.

In NJ, roughly 1/3rd of civil cases referred by the court for mediation settle directly in mediation.  I would estimate that another 1/3rd settle as a result of what happened in mediation, but does not get reported in those statistics.  This is why states have mediation programs.

In mediation, clients are given a lot to think about in a short period of time.  Sometimes it takes more than a few hours to assimilate the new information.  Most litigants look at their case as “I’m right, they’re wrong”.  A good mediator will help them see the gray in their cases (as well as the weaknesses) and properly assess the risks in going to trial.  I often ask clients why they think that their case is so unique that they will be among the less than 5% that make it to trial.

The longer a case goes until a settlement, the less likely it will happen.  When litigants have to spend money on discovery and depositions, they tend to become more entrenched.  That’s why mediation happens early in the process.  It gets information exchanged between the parties and risks assessed early.

Trials involve risks.  Trials involve biases (by jurors and judges).  Trials involve performances (by attorneys and witnesses).  A mediated settlement provides surety.  You know what you’re going to get.  And no one has forced this resolution on you…you’ve voluntarily agreed to it.

Labor Settlement Reached

Last week, an acrimonious labor action was resolved in mediation.  An SEIU nurses local at two southern Nevada hospitals was locked out in December 2006.  Phil Satre, for CEO and Chairman of Harrah’s Casino, led 60 hours of mediation which resulted in the agreement.

The Power of Showing Up

There are numerous sexual abuse cases running through the court system against the Catholic Church.  Mediation has helped resolve a number of them, including several cases in Denver.  One of the defendants who settled was quoted as saying:  “I was quite surprised to see the archbishop there himself, which meant a lot.”

Settlements aren’t only about the money.  Sometimes, people are simply looking for respect or acknowledgement of wrongdoing.  By showing up, the archbishop helped healing and a settlement.

There was a fatal airplane crash in Japan a number of years ago.  The Chairman of the airline personally called the families of each of the survivors and apologized.  Not a single lawsuit was filed.  Studies have shown that medical malpractice suits would nearly disappear if the doctor would simply admit the mistake.

So many corporations and people think that by not speaking to the victims of their wrongdoings (even if accidental) is the wrong thing to do.  Showing up and apologizing goes a long way.”

More than Mediation

Here’s an interesting editorial detailing how mediation helped numerous parties come together to resolve the sexual abuse lawsuits against a Catholic Diocese in Oregon.  The original can be found here.
More than mediation
A Register-Guard Editorial
Published: Wednesday, December 13, 2006

The word “mediation” is hardly sufficient to describe the effort required to forge Monday’s announced settlement resolving nearly 150 lawsuits against the Roman Catholic Archdiocese of Portland. The suits were filed by people claiming to have been sexually abused by priests in Western Oregon.

Because of an unnecessary gag order on attorneys and all parties involved in the case, details of the settlement and the bankruptcy reorganization of the archdiocese won’t be available until later this month. But the mere fact that U.S. District Judge Michael Hogan and Lane County Circuit Judge Lyle Velure managed to resolve all but 20 claims and to complete a reorganization plan that could allow the archdiocese to resume normal operations after three years of bankruptcy represents a remarkable achievement.

Consider the formidable challenges that confronted Hogan and Velure when they began secret talks with parties in the case last August: Two judges with very different temperaments and working across jurisdictional lines found themselves confronted with a disparate group of plaintiffs and an archdiocese that had very different ideas about what constituted just compensation for victims of sexual abuse by priests.

The legal landscape could hardly have been more jumbled with obstacles. There were claims filed on insurance policies written three decades ago. There were the complexities of Roman Catholic canon law, which the archdiocese claimed prevented it from selling individual parishes’ property and schools to satisfy judgments. There were the claimants who insisted on their cases going to trial, and the possibility of claims that have yet to be filed.

Then there were the wrenching dynamics of human emotion: The anguish of victims of clergy sexual abuse who rightly regarded just settlements as an integral part of the healing process. The anxiety of church members uncertain if their local parishes and schools might be sold to pay legal claims. The frustration of church officials struggling to balance the need to keep the archdiocese intact with their responsibility to justly compensate victims.

If the reorganization plan is accepted next week by the U.S. Bankruptcy Court, Velure and Hogan will have succeeded in resolving one of the most difficult mass litigations in Oregon history. It’s an extraordinary accomplishment that vividly demonstrates the important role that judges can, and often do, play by resolving legal disputes before they go to trial, devouring vast amounts of time and money and leaving deep emotional scars.

Thanks to the efforts of Hogan and Velure, the parties involved in the abuse cases will be spared months, perhaps years, of protracted and costly litigation. Victims will be able to move on with their lives, the archdiocese can emerge from the cloud of bankruptcy, local parishes and schools will be able to plan with certainty for their futures, and sex-abuse victims who have yet to come forward will find resources available to settle their claims.

This many-sided and far-reaching resolution will gain a rightful place in Oregon history.