Parties often take an “all or nothing” approach to dispute resolution, or resolving a law suit.  By this, I mean that parties will give a mediation, settlement conference, or early neutral evaluation (“ENE”) one shot.  Oftentimes this can be two hours or less.  If the process fails, the parties trudge on with their dispute.  New evidence comes out, more depositions are taken, and the case is again in position for resolution, but the parties assume they have already given alternative dispute resolution (“ADR”) a go.  They thus miss a valuable opportunity to resolve a case short of trial.

As a mediator and litigator, I have noticed what often separates good mediators, settlement conference judges, and magistrates judges (who conduct ENE’s and Mandatory Settlement Conferences (“MSC’s”) in the federal court) is a willingness to follow through on a case and to keep a pulse on a case through the litigation process.  I have worked with several magistrate judges in the United States District Court for the Southern District of California who are required to conduct an ENE within 60 days of the defendant’s answer.  A case is often not ready to resolve at this early stage so the magistrate judge will order limited discovery on a particular issue, and will order the parties to return in a specified period of time.  This keeps the litigation and the parties focused on the germane issues.  Similarly, good mediators will often follow up in 30 or 60 days with a phone call or letter that lets the parties know that he/she is available if and when the parties want to return to the table.

If your mediator or judge is ineffective then it does not make sense to return to him/her in the context of attempting resolution.  But if the issue in the first instance was timing then it makes all the sense in the world to return to the person who is familiar with the personalities, issues, and evidence of your case.  I would stress that it is important to keep the lines of communication open, both among counsel and with your mediator or judge, so that you may return at some future date when the case is ripe for settlement.

Washington D.C. monument, taken during thunder storm on a recent family vacation.Upon taking in a new file, it is my job to marshal as much evidence as possible in order to ascertain the strengths and weaknesses of your case.  I believe it is important to negotiate from a position of strength.  It is also important to know when in a particular cycle you are going to be in the strongest negotiating position.

I have a colleague who is working on a sexual harassment case that is in the pre-litigation phase, meaning he has not yet filed a case against the prospective defendants.  There is no dispute that the harassment occurred.  There is no dispute that my colleague’s client had given notice to her employer of previous harassing behavior by her supervisor.  It is unknown at present, however, if there had been other prior complaints to the employer regarding this supervisor’s harassing conduct.  My colleague has a strong case now.  Assuming he has done a thorough and accurate job assessing his client’s credibility and likability (meaning, will the prospective plaintiff appeal to the jury), his case can only get stronger as he initiates litigation.  Even if there are no smoking guns out there with respect to prior complaints, he still has a strong case.  There is little risk to taking a hard line approach now to the negotiation process and initiating litigation quickly if the defendants are not properly motivated.

Certain types of cases are conducive to early resolution, while others require that evidence be collected, generally through the formal process of discovery, before they can be resolved.  Injury cases are generally pretty clear early on as to liability (who was at fault) and damages (the monetary value of the injuries).  The issue in those cases is getting all of the records together to make a proper evaluation, which should be completed prior to litigation.  A comprehensive client interview should also occur at the outset to determine whether the prospective plaintiff or defendant is going to be a sympathetic witness.  Business disputes, on the other hand, are generally document-intensive.  Even a “simple” contract dispute may require collection and review of hundreds if not thousands of pages of records.  And other cases, such as the aforementioned sexual harassment dispute and insurance bad faith litigation, are generally going to require significant discovery within the context of litigation before they are ripe for resolution.  In those cases, the plaintiff is attempting to show a pattern and practice of a given type of conduct, and those smoking guns are only going to be unearthed with significant effort and legal wrangling.

As a client, it is important for you to ask your lawyer what evidence he/she needs in order to move your case forward, and how you can help to get that information together.  As a lawyer, having a client who is actively engaged and responsive makes our job representing you infinitely easier.  Remember - I need your help in the same way that you need mine.

Within civil litigation, after a complaint is filed the parties begin the discovery process pursuant to the Civil Discovery Act (Cal. Code of Civil Procedure §§ 2016.010, et seq.). There are varying philosophies on the purpose of discovery. Clients generally want to receive every document that could potentially benefit their case (including but not limited to “the smoking gun”), while offering nothing detrimental or harmful to the other side. Unfortunately, that is not the purpose of the Civil Discovery Act, which requires the liberal production of anything non-privileged that may lead to the discovery of admissible evidence.

As a lawyer, the quickest way to profit off of a client (or to drum up massive fees) is to engage in frivolous discovery disputes. Lawyers generally know before they engage in a discovery dispute what the result is going to be. If they don’t, there is a meet and confer process required by the code whereby lawyers are forced to communicate in good faith regarding the merits of the discovery dispute. As a last resort, the lawyers may go to court (or use a discovery referee) for a determination on a discovery dispute. Courts hate discovery disputes, and with good reason. I have not encountered a discovery dispute that could not be resolved through the meet and confer process. Discovery disputes are time-consuming, costly, and generally speaking the code is going to require the party objecting to production of a document or other piece of evidence to turn over the evidence unless that evidence is protected by a privilege.

In short, the purpose of discovery is a mutual exchange. It’s a mutual exchange of facts, a mutual exchange of witnesses, a mutual exchange of documents, and a mutual exchange of expert witnesses. Some of the evidence is going to go in your favor, some of it will not. Sometimes the smoking gun, if there is one, may be in your favor. Sometimes it may not. Most often, there is no smoking gun. There are piles of documents and anywhere from a handful to many witnesses, and lawyers who, if they are doing their jobs, are working together to mutually exchange and evaluate the evidence to assist their clients in resolving a dispute.