Thursday, February 4, 2010

The “Old Boy Network”*

Although originally used to describe alumni of the same British boys’ school, these days the term "Old Boy Network" commonly means any group more or less loosely tied together by social or professional relationships, so that the aims of its members may be furthered by informal arrangements, accommodation, and short cuts, rather than by strict adherence to the rules. For example, many would regard barristers or trial lawyers who practice in a small geographic area as likely members of an old boy network.

In most quarters, the concept has come into disrepute — particularly when applied to lawyers — because it conjures up visions of backroom transactions aimed at making life easier for the lawyers, as opposed to benefitting their clients. In one episode of John Mortimer’s classic Rumpole of the Bailey series, for example, newly minted barrister, Ms. Liz Probert, introduces herself and, extending her right hand, announces that she has just passed the bar exam. Rumpole admonishes her, saying: "Ah, then we don’t shake hands. The customers don’t like it, you see. They may think we’re making secret deals."†

Obviously, the network can be used to undermine the safeguards of the Rules of Professional Conduct designed to assure that the clients’ interests are paramount. Unscrupulous (or lazy) lawyers have been known to sell their clients down the river for the sake of a quick deal. But despite abuses by some, the informality of the network has too much going for it to be discouraged completely.

If you think about it, the Old Boy Network of trial lawyers, judges and dispute resolution professionals is what, more often than not, facilitates successful mediations. Mutually beneficial settlements are achieved by lawyers who know and respect each other far more often than by lawyers who distrust each other. In fact, I believe that arranging for mediation in the first place can best be accomplished when the lawyers for the litigants grease the wheels in advance by speaking frankly with each other "off the record." President Obama was right; a lot more can be accomplished over a beer than by exchanging bombastic letters or pleadings.

In my view, the best way to avoid the appearance of impropriety, while retaining the benefits of cordial professional relationships, is to be up front with your clients right from the beginning about the need for informality and civility with the other side. If your jurisdiction encourages such behavior,‡ stress that fact with them and be ready to discuss examples illustrating how people generally catch more flies with honey than with vinegar. Keep your clients abreast of the gist — if not the full details — of communications with your opponents; and be prepared to explain how such informality is likely to pay dividends in the long run.

As someone must have once said: "Being an effective advocate doesn’t mean you have to be a jackass!"**

* The photo was selected purposely to illustrate that the "Old Boy Network" is no longer an all-male enclave.

Rumpole and the Blind Tasting, Roger Bamford, Director (Thames Television, Ltd., 1987).

‡ See, e.g., The New Hampshire Bar Association Litigation Guidelines (N.H.B.A., 1999) .

** If nobody admits to originating the quote in 30 days, I’ll claim it!

Thursday, January 28, 2010

I’m OK; You’re Irrelevant

In negotiation — whether mediated or not — we all like to win. See, e.g., "Fear of Being Outfoxed," posted December 24, 2009. Of course, if a settlement can be structured so that both sides win, so much the better. Unfortunately, however, "win-win" solutions are not always possible in personal injury cases, at least not in the classic sense envisioned by Fisher and Ury.* No matter how much the plaintiff and the defendant in an auto accident case, say, would like to turn the clock back and undo the accident, it isn’t going to happen.

Obviously, in one sense, both sides must benefit from any settlement. Each party must believe that paying or accepting the money on the table is better than not doing so, else they would not have agreed to the deal. But this benefit depends upon the coercive power of a future event that nobody wanted in the first place — a trial.

In the negotiation of personal injury litigation, nobody is likely to win in the sense that a settlement will make them better off than they were before the accident. The plaintiff will still have the injury; the insurance company’s bank balance will be lower after it indemnifies the defendant; and the defendant will likely see his or her premiums go up. In accident litigation, when life has given you those kinds of lemons, it’s usually too late to make lemonade.

Or is it? Let’s focus on plaintiffs. Injured plaintiffs can win by settling, but only when they fully understand that winning isn’t about undoing the harm, but instead is about giving them the opportunity to overcome the harm. Money won’t heal a permanent injury, but it will often open doors that were closed before. Winning in this way requires a change in mind set. The injured plaintiff must shift focus away from how much he or she has been wronged and, instead, concentrate on what it will take to overcome the consequences of the wrong. As I wrote in my last post of 2009: "The past has passed; the future beckons."

So long as the plaintiff’s attitude is "They’ll have to pay for what they did to me!" victory will be elusive. "They" are unlikely to ever pay much. Instead, it will likely be "They’s" insurance company that foots the bill. The plaintiffs who win are the ones who ultimately let go of their anger — or at least keep it well under control. The winners keep their eyes on the prize, focus on what’s good for them, quit worrying about what’s bad for the other guy, and look to the future.

* Getting to Yes: Negotiating Agreement Without Giving In (Boston: Houghton Mifflin Co., 1981).

Thursday, January 21, 2010

Musings on Justice and Truth

It is accepted more or less universally that plaintiffs in tort litigation seek not only money, but also justice. I also believe that to be true — as far as it goes. Based on my experience, however, I suspect that many folks are operating on only a vaguely formed understanding of what the word "justice" really means. I daresay that many, if not most, believe deep down that justice is what happens when the jury renders a verdict in their favor! If, instead, the jury finds for the other guy, it is likely the result of some injustice. The jury was biased or stupid, e.g., or the other side had more bucks to hire a fancy lawyer, etc. More often than not, however, the jurors found for the other guy because they liked his or her notion of justice better, based on what they saw and heard at trial. Few realize that justice is more about the process than the result.

Herewith, my definition of the word: "Justice" is that which results when the procedure is correctly followed. So long as the rules of evidence are followed, the judge is not biased (or asleep), and the jury follows instructions and is not suborned, the result, by definition, must be just — or, at least, cannot be determined by outsiders to have been unjust. This means that if the jury hears and sees only what goes onto Justitia’s scales (see picture) and follows a reasonable understanding of the judge’s instructions, the result is "justice," whether or not some other jury faced with the same evidence and instruction might have come to a different conclusion.

I would venture to say that most citizens — including many trial lawyers who ought to have known better — were outraged in 1995 when O. J. Simpson was acquitted of murdering his ex-wife and Ronald Goldman. After all, the TV news shows were predicting a conviction! Trials, however, whether criminal or civil, are decided by juries, not by John Q. Public (a/k/a, in some circles, the "Mob"). Juries are, of course, human and subject to human frailties. Society can’t guarantee that juries will always find the truth. On the other hand, who is to say that a given jury has not found the truth? John Q. Public? The losing attorney? The anchor on the six o’clock news? Bishop Desmond Tutu? In our society, we have juries because truth is almost never knowable with any certainty. Like it or not, we have assigned the role of "truth and justice finder" to juries. And that means that whatever they decide when the procedure has been followed is, for all practical purposes, truth and justice.

So, what am I getting at that would be of use to tort litigants participating in mediation? It is this: the less one understands about the true meaning of "justice," the longer it will take to reach a reasonable resolution acceptable to all participants. One of a trial lawyer’s primary jobs is to educate his or her client on the limitations of the system, and thus, the true meaning of "justice." Clients may think they have a can’t-miss-slam-dunk case, but they need to comprehend that what counts is how 12 strangers, who will see and hear only what the judge tells them they can, might look at the case. Clients need to understand that they cannot profitably confuse what they think ought to be with what is.

Thursday, January 14, 2010

That’s Not My Department

Too often, tort litigators focus on how to win their case at trial, while ignoring opportunities to reach settlement by educating themselves about the other side’s motivation and readiness.

What is needed, in my view, is a more holistic approach, such as that discussed about a year ago by John DeGroote over at Settlement Perspectives. John started an excellent series of posts on the subject of Early Case Assessment ("ECA"). For John, "the definition of an ‘Early Case Assessment program’ is a disciplined, proactive case management approach designed to assemble, within 60 days, enough of the facts, law, and other information relevant to a dispute to evaluate the matter, to develop a litigation strategy, and to formulate a settlement plan if appropriate." See "Easier Said Than Done: Early Case Assessments Part I," posted October 22, 2008. John’s point is that many cases can be assessed and disposed of at an early stage by following a concentrated, structured approach to gain essential information quickly.

One of the points John makes is that to gain the greatest advantage from an ECA program, your team’s focus must be external, as well as internal, and include an analysis of the case from the other side’s point of view. By taking this approach, "[y]ou’ll know more about what your dispute is worth to the other side, and you’ll be in a better position to get there at every step in the process." See e.g., "Better Settlements From Better Information: Early Case Assessments IV," posted November 7, 2008.

Most tort litigators are quite skillful at winkling out information regarding the strength of the other side’s case. Over the years they have perfected their discovery techniques and their checklists so as to learn everything they need to know about the facts of a case and what a jury might do with them.

Fear of what a jury might do with a given set of facts may be the primary motivation to settle a tort case, but there is often quite a bit more that ought to be considered.

Where many litigators tend to be lax is in learning what kinds of things other than the strengths and weaknesses of the case at hand are likely to motivate the other side to settle. What the plaintiff may need money for, e.g., may sometimes be touched upon by the defense, but there usually isn’t a concerted effort made to get detailed information on the subject. Likewise, the defense is not usually proactive in exploring the chances that liens on the proceeds of a future settlement may be compromised. Such matters are normally regarded as the responsibility of the plaintiff.

Conversely, matters such as the size of the defense carrier’s current caseload in its local office, or plans regarding consolidation of claims offices probably won’t be on the plaintiff’s radar screen, even though they may have a substantial bearing on the company’s motivation to settle.

To maximize chances of settlement, all counsel involved in litigation should not only ensure that their side has all of its ducks in a row before mediation, but should also be proactive in addressing the other side’s readiness as well. Settlement is everybody’s department.

Thursday, January 7, 2010

The Babysitter Factor

I’m going to start the new year with a story from my early years as a trial lawyer. It’s one of my favorites because, although the facts are quite unusual, the story is instructive of the need to keep an open mind about absolutely everything when looking for opportunities to resolve a case.

About 20 years ago, I was retained by a liability insurance carrier to defend a nuisance claim brought against a local manufacturing company located in a small "mill town" in New Hampshire. The company had been around since the early 19th Century, and had been owned by the same family for about 75 years. For much of its existence, it had been the dominant player in the town’s economy. In fact, it was in operation before there was a town. For the last few years prior to the lawsuit, the company had been run by its dynamic, twenty-something president, a scion of the owning family who had undertaken a modernization program designed to keep the company competitive well into the 21st Century.

For years prior to the lawsuit, a large vacant lot owned by the company had served as a buffer between the factory and a small residential neighborhood. However, the company had recently built a large addition that completely filled the lot and extended right up to the street across from two small houses. Although the expansion did not run afoul of any zoning requirements, the owners of the two houses filed an action for injunction and money damages, claiming that the expanded factory constituted a legal nuisance.

One of the plaintiffs was a former employee of the company who had left involuntarily, and who arguably had an axe to grind. The second plaintiff was an elderly woman who lived alone next door to the first. The primary claim of nuisance was that the machinery in the new facility caused excessive and intolerable vibration and noise. There were other less specific claims, but the vibration issue kept the "lesser" claims off of everyone’s radar screen. The former employee and his attorney took the lead in discovery; the elderly neighbor remained rather passive.

The main issue of concern to the company was the request for an injunction, which, if imposed, would not have been covered by its insurance policy. For that reason, the company’s own corporate attorney defended along with me and took an active role in the trial preparation.

Early in the discovery phase, we arranged to visit the plaintiffs’ properties on a day when all the machinery in the new building was running full blast. As our client’s people had predicted, we were able to stand directly across from the factory on the plaintiffs’ front porches and could, almost literally, hear the grass grow. There was no vibration to speak of, and noise was minimal. We felt confident that the presiding judge would throw the case out of court.

The company president turned the case preparation over to the attorneys and his risk management people, but we were able to prevail upon him to represent the company in person at trial. The first witness called by the plaintiffs was the elderly woman. As she testified, it became apparent that the minor noise and vibration of the machinery didn’t concern her nearly as much as the delivery trucks that tended to arrive and leave in the early hours of the morning. After listening to her testimony for a few minutes, the young president leaned over to us and whispered: "She used to be our babysitter when we were kids. We ought to be able to do better for her!" We asked the judge for a recess and negotiated a settlement within the next hour or so.

Thursday, December 31, 2009

Happy New Year!

I don’t usually tie my posts to special events or holidays, but I think that celebration of the new year is particularly appropriate for dispute resolution professionals. It is a time to acknowledge the inevitability of change. The old year is gone; the new year is bright with promise. The past has passed; the future beckons.

This is not to suggest, of course, that what has gone before has no bearing on what is to come. As Santayana taught us: "Those who cannot remember the past are condemned to repeat it."* Civil litigants, though, must find a way to put the past behind them; to let go of grievances, whether real or imagined, and go forward. While the past must instruct the future, it shouldn’t control it.

People generally sue other people because they perceive themselves to have been wounded — sometimes literally, sometimes figuratively. Resolution won’t happen until those wounds are dealt with in some fashion. An essential step in dealing with wounds, however, is to recognize that they cannot be undone, or even fully healed. All that can be accomplished is to prevent the wounds from becoming more infected.

"Time," as someone once said, "marches on." You don’t have to forget; you don’t have to forgive; but you do have to move on. People cannot control what has happened, but they can and should control what will happen — because it is inevitable that something will.

* George Santayana, The Life of Reason, Vol. 1, Reason in Common Sense, (Dover Publications edition, 1980; originally published by Charles Scribner & Sons, 1905).

Thursday, December 24, 2009

Fear of Being Outfoxed

"Everybody has to save face, and, whether they have to or not, everyone tries to; it’s one of the basic compulsions of men." John D. Voelker, writing as Robert Traver, Anatomy of a Murder (New York: St. Martin’s Press, 1958), 42.

The above-quoted maxim is especially accurate when it comes to lawyers, and even more so when it comes to trial lawyers. Put simply, trial lawyers hate to lose. They are usually willing to moderate their thirst for victory enough to participate in settlement negotiations, but, when the dust settles, they still like to feel they won by doing better for their clients than the other lawyers did for theirs.

In saying this, I do not mean to suggest that it’s all gamesmanship — i.e., the lawyer who dies with the most points wins — or that we trial lawyers are completely driven by our egos. Of course, given Voelker’s observation, there is always going to be some of that. After all, no lawyer worth his or her salt wants to be snookered. But more important than ego to most lawyers is that our clients hire us to get the best results we can. If we take our clients’ money, we’re expected to advocate.

What’s important to most litigants involved in settlement negotiations, assuming the numbers being discussed are in the so-called "zone of possible agreement" (ZOPA),* is knowing that the other side’s best number has been reached. This is why the cautious back and forth negotiation that we call the "mediation dance" happens, and why most people rarely "cut to the chase" right away. The dance is a necessary component in just about all settlement negotiations. Can you imagine two trial lawyers having the following conversation?

Defense Attorney: My client and I think settlement value is between 200 and 250 thousand dollars.

Plaintiff’s Attorney: That’s about where I put it. Want to split the difference at 225?

Whatever the cause of people’s tendency to hide their hole cards, it’s all part of the adversarial process. It has been with us for centuries, and is likely to be with us well into the future, if not forever. It is one of the reasons why it’s wise for parties contemplating mediation to allow for as much time as possible for the process. I have been in mediations where early negotiation results in substantial movement, but hours are spent thereafter in making only tiny incremental changes. Was such extra time wasted? I don’t think so, because when that sort of thing happens, everyone is virtually certain that the other side has reached the end of its rope — and is satisfied that nobody was outfoxed.

* Defined as "the set of all possible deals that would be acceptable to both parties." Deepak Malhotra & Max H. Bazerman, Negotiation Genius, (New York: Bantam Dell, 2007), 23.