There were a couple of interesting points in the U-T’s coverage of the incident, which can be found here:

http://www.signonsandiego.com/news/2009/nov/09/bicyclist-struck-and-killed-san-diego-police-car/

First, if the bicyclist’s family were to pursue a lawsuit it would be for wrongful death on the premise that the officer driving the vehicle was negligent.  But there was also a report that the bicyclist’s helmet came off in the accident.  It is much too early to ascertain the cause of death, but this could also turn into a product defect case against the helmet manufacturer if it is found that the death was caused, in whole or in part, by an injury to the bicyclist’s head.

Second, the police have already apparently concluded that the incident was the fault of the bicyclist, who is alleged to have exited a driveway right into traffic.  The patrol car is alleged to have been heading to the scene of another accident, but was doing so without its lights on and under the posted speed limit of 45 mph.  Genesee Ave. runs north-south at Governor Dr.  There are gasoline stations on all four corners of the intersection of Genesee Ave. and Governor Dr. 

“Authorities said the bicyclist turned out of a gas station parking lot and headed south in the bike lane of Genesee Avenue at about 7:15 a.m. Then, police say, he crossed a lane and collided with the patrol car, about 40 feet north of the intersection at Governor Drive.”

I would like to see a copy of the police report, but this description of the scene on its face doesn’t make much sense.  First, the posted speed limit on Genesee Ave. is 45 mph, so the officer was travelling north-south at the time of the accident.  Second, the bicyclist is alleged to have exited one of the gas stations heading southbound on Genesee Ave., but the accident is alleged to have occurred 40’ north of the intersection with Governor Dr.  Unless he was travelling opposite traffic (unlikely if this was part of a normal morning ride), the bicyclist had to be exiting one of the gas stations on the west side of Genesee, most likely the service station on the northwest corner.  This means the bicyclist would be exiting the station and crossing Governor Dr., heading south on Genesee.  Third, it is imperative to know what color the light was if the bicyclist was in fact crossing Governor Dr., and whether or not the officer in question may have been proceeding through a red light (albeit with lights/sirens off and under the posted speed limit of 45 mph).

In short, either the reporting of this event is off, or the police are mistaken in their reconstruction.  As I said, maybe the police report will shed some light on this incident.  In any event, there are plenty of details still to figure out, and my suspicion is that liability is not as clear as has been currently painted by the SDPD.

A lawyer must know the applicable laws, the facts, the documents, and must assimilate all of that information into an evaluation of the strengths and weaknesses of a case.

Most important, however, a lawyer must know his or her client.

Regardless of the type of dispute being litigated, the first thing that a lawyer has to determine is whether a jury will like his or her client.  (In “Bandit,” Neil Young said it right: “Lawyers in business, you get what you bring.”)  What Neil didn’t say is something that many clients miss: the lawyer is only as credible as the client, and the client is only as credible as the lawyer.

At the end of the day, a lawyer can know all of the applicable laws, the facts, the documents, and the testimony of the witnesses like the back of his or her hand.  If the client is not going to emotionally appeal to the jury, though, it’s all useless information. 

I had an insurance bad faith case where I liked my facts, and I liked the law in our favor, but what I really liked was my client.  She was in her mid-70s and was a retired nurse.  She was as sharp as she could be, but not in a condescending or know-it-all way.  She simply knew the facts and knew the science behind the medicine that was relevant to her dispute.  There were facts that were adverse to our case, but in the negotiating process I told the lawyer on the other side, “I know the holes in my case.  I know what your arguments are going to be, and there are some strong arguments there.  But ultimately a jury is going to find a way to put money in my client’s pocket.” 

A few weeks later, on the call wherein an agreement was reached, the lawyer on the other side somewhat surprisingly told me, “We have strong arguments, and I think we have arguments that you may not have considered.  But ultimately, you said something a while back that I think is true.  At the end of the day, a jury is going to find a way to put money in your client’s pocket.”

I cannot stress how important integrity and honesty are in the context of litigation.  For a client, this means being honest with your lawyer and being willing to disclose information that may be adverse to your case.  You have to assume that the other side already has those facts.  What happens if you hide those facts or lie to try to conceal those facts is far worse than if you just address them head on in the first place.  It is your lawyer’s job to do damage control and to minimize the impact of adverse facts.  Ultimately, in disclosing facts adverse to your case you are building your credibility with the other side and, although it seems counterintuitive, likely taking steps towards a positive outcome.

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.

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.

Many clients express concerns that if a case is not resolved prior to the filing of a complaint, which initiates the litigation process, that it will not have further opportunity to be resolved by way of a pre-trial settlement. However, the reality is that there are several stages to a dispute, each with a dispute resolution mechanism either built in or available:

(1) Pre-litigation: Generally speaking, there is an opportunity to resolve a dispute or a claim prior to initiating litigation. In some instances, it is appropriate and necessary to shoot first and ask questions later, meaning that you skip past a pre-litigation attempt to resolve your dispute. The majority of the time, however, it is in your best interests to see if you can resolve a case before it is filed in one of the California Superior Courts.

There are several reasons that it makes sense to try to resolve a dispute before it becomes a litigation case: First, neither side presumably has incurred much in the way of costs or fees in the pre-litigation stage. Therefore, each side should have more flexibility and room within which to work in attempting to negotiate an agreement. (This is true for both contingency fee cases and hourly cases; generally speaking, contingency fee agreements call for a smaller percentage of the gross recovery pre-litigation versus once the complaint has been filed.) Second, there is generally less emotion to block the path to resolution in the pre-litigation phase of the case. Once the matter enters litigation, it is much more likely that one of the parties will become emotionally entrenched and will start making decisions emotionally as opposed to rationally. Third, once the matter enters litigation, there is generally going to be a discovery process (more below) that requires the expenditure of certain costs and fees. This process, as detailed below, is not only time-consuming but can also be costly.

(2) The CMC: A litigation case is started by filing a complaint in one of California’s Superior Courts. After the complaint is filed, the defendant(s) has 30 days to answer. Generally speaking, filing and service takes anywhere from 2-4 weeks. For planning purposes, you can estimate 60 days from filing of the complaint until the defendant files a responsive pleading. In San Diego, the Superior Court orders a Case Management Conference (“CMC”) within 90 days of the defendant’s filing of a responsive pleading. At the CMC, the parties will have an opportunity to select an alternative dispute resolution (“ADR”) procedure, including mediation or a settlement conference. Thus, within 6 months of the filing of the complaint, the parties will generally have a second opportunity to resolve the case.

(Note: in Federal Court, there are different ADR processes and procedures available. The District Court for the Southern District of California orders an Early Neutral Evaluation (“ENE”) in front of the magistrate judge within 60 days of the defendant’s responsive pleading to the complaint. This is effectively an early settlement conference that takes place in front of an eminently qualified and experienced federal judge.)

(3) Discovery: It is important to know the facts of your case before you enter into settlement discussions. It is also important to know what evidence the other side has and will be producing at time of trial. These are factors that ultimately influence the value of the case. The discovery process includes written questions (interrogatories, request for admissions, and request for production of documents), oral questions (depositions), and document subpoenas to third parties. While this process can be time-consuming and costly, it can also be extremely valuable. Oftentimes, this process will lead to the “discovery” of a case-changing document or witness statement. A case-changing event can often lead to expedited settlement discussions and, if the stars align, resolution.

(4) Pre-Trial: Should the matter make it all the way to the eve of trial, courts will often order the parties to attend a settlement conference in front of a Superior Court judge in order to give the case one last chance to informally resolve. There is also the possibility of resolving a case “on the courthouse steps,” which may entail jury selection and can even include making opening statements and taking trial testimony. It is never too late to settle, but at the same time pushing your adversary into court with hopes of then resolving your dispute is a very risky game of chicken and is generally not advisable.

There is nothing precluding the parties from initiating settlement discussions at any point. While it is important to negotiate from a position of strength, sometimes you are forced to try to resolve a case wherein the evidence is stacking up against you. I call it “pulling the parachute.” You may also hear me talk about good money chasing bad money. (The flip side of that is when the evidence stacks up in your favor. You may hear me talk about “holding the cards.” If we’ve got the cards, we’re not going to overplay them. But we’re going to play them.) These are discussions every lawyer should have with his/her client in order that the client can make a logical, informed decision as to how to proceed. As set forth above, there are many mechanisms built into the process to allow parties to resolve their disputes informally.