Illinois just joined 47 other states to enact prejudgment interest. Now, after a verdict, the defendant must pay 6% interest dating back to the time of the accident or occurrence. What took Illinois so long? While insurers will gripe, this is absolutely right. When I started, in the ‘70s, interest rates were around 20% and time to verdict was about 5 years. Without prejudgement interest, defendants obviously had no incentive to pay claims. By what crazy logic could a defendant cause harm and sit around for years collecting their own interest by not paying? Today, with much lower rates and time to verdict around 2 years (before Covid), lack of prejudgment interest was not such a big deal, especially in smaller cases. A floating rate might have made more sense. Still, 6% should induce defendants to consider cases seriously from the get-go, cut unnecessary discovery and look closer for settlement opportunities. This is a great time for insurers to reevaluate claim practices, especially with the Covid backlog about to hit, I have long advocated bringing in a mediator early for meaningful, ongoing case management, ready resolution of discovery issues, and a big, wide-open settlement window that continues as the case proceeds. Mediation does not have to be one random meeting. Big ships don’t turn that fast. Making mediation less abrupt and more thoughtful means smarter deals for everyone. Early mediated case management can be customized for each case, allowing whatever discovery makes sense in whatever order is needed to determine the best path to resolution. The world is changing fast. Litigation is only beginning to change, Find ways to keep up. Try something new.
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Arbitration is faster, cheaper, much, much more controllable and final. Do a one-person, three-person or even five-person arb. Work out evidentiary stips. Throw in a high/ low. Just do it. But, you say, you don’t really trust arbitration? Ok. I’m suggesting partial arbs. Start easy, say, motions in limine. Right now, you don’t really know when your jury trial is actually starting. No idea how many SOJs are coming. No real dates for witnesses. You walk in and everyone throws down sixty motions in limine. It could take a day or a week. Some judges unhelpfully take these motions under advisement. Even after ruling, nothing keeps the judge from reversing mid-trial. Stop the insanity. Arbitrate your motions and present stips to a delighted trial judge. Plough through all those routine motions. Dispose of the important ones to get the certainty that lets you really plan strategy. Maybe you’ll even settle. Lawyers love to gripe. Good lawyers find creative solutions. Arbitration is a vastly underutilized solution.
Lars Daniel’s podcast on the internet of things awakened me to the enormity of the iceberg we’ve already hit. Even in our bathrooms and bedrooms, on the street, and in the store, our Apple watches, Roomba’s, Alexis, automobiles, medical wearables and insertables, baby monitors, televisions, smart appliances, phones and computers, are continuously gathering massive amounts of permanent and retrievable data on all of us all of the time. Daniel shows how he has creatively used this data in all sorts of civil and criminal cases. He can determine precise GPS locations even when the phone is not in use. He can tell a lot about what a trucker or a doctor might be doing at an exact moment from their heart-monitoring data. Facial recognition, used extensively in other countries to monitor public areas and classrooms and even to assess and record mood, creates permanent, searchable, files. Lawyers need to know that traditional evidence is now a tiny fraction of what might be found in digital databanks. It has to be every lawyers’ duty always to consider the possibility of accessible digital evidence. Yikes! https://www.lexvid.com/cle/consumer-electronics-and-the-iot-digital-evidence
“Wait’ll you hear this!” Arrgh! Your friend grabs you with a great teaser but starts into what he had for breakfast, his bus route, and other dumb details before FINALLY getting to the head-blowing news. I hear so many expert examinations where the overture takes so long, I’m nearly asleep when the show starts. An expert can be the centerpiece of your case if you make her opinions—not her schooling and speeches--- the focus. Start with name and occupation. Establish you hired her (Don’t say here, “By subpoena”). “Did you review the materials to come to opinions about the case?” Then, BOOM—“In summary, what are those opinions?” Let her answer. ”Why do you think that?” Then, “I’ll ask you to explain in more detail, but first, we need to hear why you’re qualified to give those opinions and how you got to them.” Most judges know the other side would have objected long before if your expert were not qualified. Here’s one decent link.https://blog.seakexperts.com/399/. Deplore the bore!
Is anyone else tired of the incessant polemics against Chicago?
Here’s something contrarian. Chicago is a great city and we have great reasons to live here. There’s a reason 3 million people choose to live where winters can get brutal. There’s a reason modern comedy was born where segregation and crime can be oppressive. There’s a reason business flourishes where the economics can be daunting. There’s a reason we have some of the best schools and medical facilities in the country. There’s a reason we have crazy sports fans even when our teams suck. Chicago spirit is real. We are different from the coastal cities and Chicagoans are different. I finally found something positive in the Trib--an ad, but still. Let’s take a minute to say we are proud of where we live. https://integrations.pagesuite.com/clipping.aspxurl=http%3A%2F%2Fmedia.cdn.pagesuite.com%2Fclipping%2Fhtml5%2F2a950a58-c5d5-42af-ad1f-5b6408df640a%2F26%2F20210427163343694%2Fclipping.jpg One of the most ineffective techniques I see in mediation is evaluating changes of offers and demands in percent. A plaintiff might say, “Defendant is not negotiating in good faith! We just moved 22% off our demand but they only increased their offer by 5%! We’re not moving again until we see a more reasonable move from them!”
I’m not sure why both sides do this because it is usually completely unconvincing to the other side. The fact, if it is a fact, that the percentage of successful lawyers who eat broccoli jumped from 12.2% to 19.6% last year doesn’t tell us much. We don’t know anything about the quantity or the quality of the data collected. It might still be just seven lawyers and broccoli might only have happened to end up in their salads. And, even if the number did jump 315%, does it mean there’s any correlation? At least one recent president seemed to do pretty well without any broccoli. First, starting points often have little relation to ending points. Sometimes it takes twenty moves to get to where the parties are even in the same hemisphere but then, in just two more moves, as the deadline approaches, they get to the same neighborhood and land on a deal. Percentage change means nothing when based on offers or demands that are outside the settlement range. Second, percentage change is relative to the number. A 10% change on a one-million-dollar demand is $100,000.00 but a 10% change on a $100,000.00 offer is only $10,000.00. Because we’re always negotiating for ultimate dollars, the target for both sides is always a number, unrelated to any percentage of an offer or demand. Percentages fascinate us. We accept a percentage salary increase even though we still aren’t very happy with the number. We look at percentage of stock market change even though all we care about is the actual price movement of our own equities. Percentage changes may be misleading because the change may be related to many factors and because comparing percentage changes is often meaningless. I’m curious, has anyone used percentages to convince the other side in a mediation? Joshua Javits recently wrote a nice article on how likely we are to return to in-person mediation and arbitration. The definitive answer is, who knows? Many of us have become quite accustomed to playing and working with others on-line and are in no great rush to polish up our wingtips, jam into the Metra or queue up in rush hour and head back to the office. I’ve had great success online in both mediation and arbitration and just have not experienced downsides. I’ve had no difficulty connecting with lawyers and even very distraught litigants.
Everyone talks about how much cheaper and easier online is—participants are way more relaxed, time is far less an issue, it’s much easier to move around and handle groups of people. But there’s another issue no one discusses. To be effective, mediators must stay dead neutral. That’s one thing before you begin. Once you jump into the water, however, strong winds and rip tides can easily pull a mediator toward one or the other side. Sympathy, conviction one side deserves better or frustration with hard-ball tactics can push you off center. A little distance can be a good thing. Online, no one is getting in anyone’s face. When things heat up, everyone has a bit more reaction time to consider a measured response. There’s a feeling of safety. We all tell parties to look at their case “from thirty-thousand feet up” to see the big picture. Online can help. Movies and video are among the most effective communication tools ever invented. One of the ways they touch us is by their ability to get closer and further, or, as they say in cinema, zoom in and out. Click here to read the Javits article. As published in The Chicago Daily Law Bulletin.
In this final column, I want to share a new idea for case resolution we’re discussing in an American Bar Association committee. Ninety-nine percent of cases settle. Yet, lawyers have been trained to fully prepare each case for trial. The widespread belief is that the best deal comes when the case is vigorously prepared and maybe not until the very brink of trial. As published in The Chicago Daily Law Bulletin.
The other day, Holly and I had our boat out in a pea-soup thick fog. We couldn’t see one inch past the bow. As we “discussed” the situation, we kept looking back at our wake— the only thing visible outside the boat. From the seemingly straight lines of the wake, we felt confident we were going dead ahead. Of course, it turned out we were going around in circles. As published in The Chicago Daily Law Bulletin.
1.”Aren’t we there yet?” How much longer? We’re never going to get there! My tummy hurts! Can I go home now? This mediation stinks!” Rule #1: Patience. You’ve been litigating the case for years. You’ve had twenty contentious depositions and five motions for sanctions. Positions have been taken and bad feelings have been building. Why would you expect all that to change in an instant? It takes time to turn a big ship around. Be patient. Everyone made a huge commitment to be there. Give it a full chance to work. As published in The Chicago Daily Law Bulletin.
My exasperated family is used to it. I just hate a movie that ends poorly. For eight seasons of Game Of Thrones, I was glued to the suspense-packed, gory and maddeningly paced struggle for the Iron Throne. The winner was abruptly picked in a goofy, hugely disappointing five-minute tea-party. Breaking Bad veered off into a pretty bad break. Big Little Lies turned out not to have any real lie. I never understood why Sally suddenly got so mad at Harry. As published in The Chicago Daily Law Bulletin.
I used to wonder why anyone would want three arbitrators instead of one. Having done a bunch of them now as a neutral, I have to say that I really enjoy the process, especially the deliberations after the hearing. Surprisingly, I have nearly always obtained unanimous decisions and I really feel that fair results were reached. As published in The Chicago Daily Law Bulletin.
The real world is messy. Maybe even more of late. Politics, gender, race, religion—everything is vastly more complex and nuanced than when many of us grew up. Particularly, I’m thinking about judgment-making in the real world. In mediation, we’re continually trying to help lay people understand this fictional legal world we occupy. Our world has a different language, different rules, time runs differently. We have to help clients understand their positions and their legal choices, a job that can seem overwhelming at times. As published in The Chicago Daily Law Bulletin.
In my last column, “Mediation: Impassible”, I gave suggestions to break through impasse. Mediators have to be able to deal with impasse but avoidance is the best strategy. Impassible can be pretty tough and, as they say in the movie, merely difficult should be a walk in the park. Welcome to “Mediation: Impassable,” where the mediation you chose to accept is now mired so deep in mud, not even Tom Cruise could move it.
If you’re really stuck after reasonable efforts, here are a few suggestions. As published in The Chicago Daily Law Bulletin
More tips from top lawyers, Margaret Battersby Black and Laura Lally. Margaret Battersby Black: 1. Carefully chart the progression of the wound. Link periods where the nursing home isn't doing what they should. As published in The Chicago Daily Law Bulletin
Last column reviewed basics of bed sore cases. Here, top plaintiffs’ and defense lawyers, Margaret Battersby Black and Laura Lally give their thoughts. Who is the defendant, is the threshold question. Nursing facilities have different standards and exposures including attorneys’ fees. This series is about bed sores, an often- mediated case. Some brief background here, and then advice from top trial lawyers, Margaret Battersby Black and Laura Lally.
Unsurprisingly, as the body ages, the largest organ, the skin, becomes susceptible to damage. Care of the skin becomes challenging. Pressure or decubitus ulcers which occur in healthcare settings (HAPUs) are frequent grounds for litigation. Different rules apply to nursing facilities. Dear Special Interrogatories,
Well, old chum, you’re taking a beating in the legislature this session. You’ve been in our Illinois appellate decisions since 1860. You came from merry olde England where jurors, who were supposed to be knowledgeable, could go to jail if they got the verdict wrong. They had to give reasons for their decisions so they had you. Today, not so much. Mitch Hedberg said, “I used to do drugs. I still do, but I used to, too.”
Which illustrates our need for timelines. Hedberg’s gag implies two separate time periods when there’s really just one. Distorting temporal relationships can be engaging and funny in jokes and riveting in movies like Pulp Fiction and Memento, but usually doesn’t make for clear communication. As published in The Chicago Daily Law Bulletin I recommend all trial lawyers read Alex Beehler’s article on Section 2-1009 non-suits, The Voluntary Dismissal: Getting It Right, from this January’s CBA Record. I had a few additional thoughts and he responded thoughtfully.
First, some background. The statue on non-suits attempts to balance directly competing interests. Non-suits can be costly and disruptive to the defense. Not getting a non-suit, especially after the denial of a motion for continuance, may unfairly impair a plaintiff's right to a trial on the merits. The ability to non-suit is deemed so important that plaintiff is given one opportunity to non-suit "as of right". In my journey to learn about mediation, I thought Fisher and Ury’s Getting to Yes was gospel—until I happened to read Chris Voss’ Never Split the Difference, Negotiating As If Your Life Depended On It.
As published in The Chicago Daily Law Bulletin Jeff is a car guy. He was describing how he saved his friend $6000.
“My friend's all amped up,” Jeff told me. “He wants to buy this car. This exact Toyota 4Runner. He's excited. But the numbers weren’t right. I looked at him and I said, ‘Listen, you drag me here, you've wasted my time. I will be insulted if you buy this car.’ He's like, ‘Yeah, but I really want it. I'm going on a road trip next week. I want to take the car.’ I said, ‘Listen. Take $500, rent a car, and I promise this will go better.’ I talked him off the ledge. He was disappointed, a little Eeyore with his tail between his legs. A week later, he found another at a different dealer.” As published in The Chicago Daily Law Bulletin
I clearly remember that bright day, after law school, when my former roommate, Jim Costello, introduced me to the Illinois Pattern Jury Instructions. As published in the ABA Newsletter: Committee News
Can a plaintiff get “full value” at mediation? Some lawyers say no. They say that a full value offer can come only after trial starts, sometimes after a few witnesses. They’re right . . . in a way. Most defendants are not going to pay at mediation what they might pay at trial, provided everything goes right for plaintiff. |
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