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.
​

​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

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. 

As published in The Chicago Daily Law Bulletin

Trying to explain what makes a good trial lawyer is tough.
You don’t have to dress like Gerry Spence.
You don’t have to browbeat a witness like Tom Cruise. 
I haven’t seen much suspender-snapping like Clarence Darrow and I’ve definitely never seen Elle Woods. 
But, if you don’t know the jury instructions, you are never going to get very far. 
​Not at trial. Not in settlements. Not in motions. 

As Published in The Chicago Daily Law Bulletin

Some trial lawyers live in a Jurassic Park where handling giant beasts is their daily work. Master trial lawyer Matt Williams of Salvi, Schostok & Pritchard P.C is one of them. Recently he shared four tips on settling the monster case. ​

As published in ​The Chicago Daily Law Bulletin

A. Something You Don't See Everyday
--"Years ago I did have a case where there were three half sisters whose mother had died. No will.
"The one half sister who opposed the other two called me since she'd had a prior injury case with me. It quickly devolved into the most extraordinary odd probate case ever. There were police called to ensure that the 'magic suitcase of personal belongings' wasn't taken when one of the three entered the residence of the deceased mom. There was a car that was up on blocks that didn't run, but since it had been used in a movie, it was 'famous' , and therefore valuable (to them).

As published in The Chicago Daily Law Bulletin
​
Arsenic is 100% “natural.”
 
Don’t eat it.
 
Natural doesn’t mean it’s good for you. Tobacco and asbestos kill while many unnatural substances sustain and cure. 
In most human concerns, natural doesn’t mean much. The question is usually, is it safe? Is it good?

As published in The Chicago Daily Law Bulletin

​At the end of the year, Richard H. Donohue will transition to senior status with the firm he founded, Donohue Brown Mathewson & Smyth, LLC.
 
Others will review his remarkable career and give the accolades he deserves.

I’ll say simply that if Chicago has ever had a finer all-around trial lawyer, I don’t know who it could be.

As published in The Chicago Daily Law Bulletin

• Motion for SOJ, DENIED!!! 
• I respect your client’s decision not to take that very reasonable offer, so let’s start hearing the motions and see what happens. 
• Sheriff, could you come in right this minute please?! 
• Ladies and gentlemen of the jury, why look, here comes Mr. Jones so I guess we can finally start!