Teddy Snyder

Author: Teddy Snyder

  • THE ADJUSTERS’ AND LAWYERS’ REMOTE MEDIATION SECRET

    COVID-19 changed our lives in oh-so-many ways. Courthouses and government buildings shut, and we were forced to suddenly embrace virtual platforms like Zoom, GoToMeeting, WebEx and Microsoft Teams.

    Now that restrictions are lifting, many of us don’t want to go back to our pre-pandemic business model. We want to keep working from home, at least some of the time.

    And we want mediations to stay remote.

    Efficient and Effective
    Remote mediation relieved attorneys and claim professionals from coping with stressful and unproductive traffic jams. Decision-makers could call in from anywhere, avoiding the obstacle of the real decision-maker not being present at the mediation. Participants with a history of vitriolic interaction particularly liked the absence of close personal contact.The Secret Benefit of Remote Mediation
    Shhh! What lawyers and adjusters really want to keep secret is that they like not sitting with their clients in caucus throughout the mediation.

    In traditional mediation, the parties usually break into separate caucus rooms. The mediator acts as a shuttle diplomat, walking between the rooms to confidentially discuss offers and demands and to convey information in a way to facilitate settlement. When the mediator is not in the caucus room, lawyers, adjusters and clients can review what has happened and plan their next move.

    And then they sit.

    They make small talk. The lawyers, especially, try to charm their clients in a way likely to encourage further referrals.

    Sometimes, contrary to instruction, clients bring children to the mediation. Lawyers and adjusters find themselves literally and figuratively baby-sitting their clients during periods which can stretch on for what feels like forever while the mediator talks to the people in the other room.

    In contrast, in remote mediation, the mediator electronically moves participants who physically remain in their own offices or homes into virtual, separate caucus rooms. When not talking with the mediator or their own team, participants are free to engage in other activities so long as they remain fully available for the mediation. Suddenly, adjusters and lawyers found that they could attend to other (perhaps billable) work. Clients can work or attend to other obligations.

    Will We Go Back?
    Some negotiators maintain that being able to physically look one’s opponent in the eye and assess body language are critical. Research shows that we are all actually poor in correctly evaluating these supposed indicators.

    Most mediation veterans want to keep things virtual and productive.

  • Gifts for Every Lawyer

    Know anyone who would benefit from better legal marketing with less stress? A lot of lawyers have great ideas about how to market their practice, but then they get busy and never follow through. The Lawyers Marketing Journal is a guided journal published by AttorneyAtWork.com that helps the user organize and actualize ideas while staying centered in both the personal and professional life.
    Lawyers have turned to  the American Bar Association publication Women Rainmakers’ Best Marketing Tips for legal marketing advice for more than twenty years. The updated and expanded fourth edition came out in 2021.
    Hurry! Supply is limited.

  • New Law Opens Narrow Window For Increased Survivor Damages

    We are all aware that COVID restrictions disrupted the ability of civil litigants to get a speedy trial. In some cases, the plaintiff died waiting for trial. Though the action survived, upon the death of the plaintiff, non-economic damages were no longer recoverable. The California legislature addressed this issue by amending California Code of Civil Procedure (CCP) 337.34 to add:

    . . . in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.

    Preference Cases
    CCP 36 allows three groups of litigants with a substantial interest in the case to move the court to try the case within 120 days:
    — A party over 70 years whose health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation
    — A party under 14 years of age
    — A party in any other case who requests the court to exercise discretion to serve the interests of justiceParties or their representatives who had successfully moved for a preference before 2022 can seek damages for a decedent’s pain, suffering, or disfigurement. Conversely, parties in those pending cases who did not qualify or did not move for a preference will be denied the ability to recover non-economic damages.

    For example, if a 69-year-old plaintiff who had filed a case in 2021 dies in 2022 before getting to trial, the representative cannot seek general damages on behalf of the decedent, even if they moved for preference in 2022.

    Cases Filed 2022-2025
    The new law is temporary. It defines a four-year window. Notably, the law also requires a plaintiff who recovers damages pursuant to the new law between January 1, 2022 and July 31, 2024 to submit a report to the Judicial Council detailing the particulars of the judgment or court-approved settlement. In turn, the Judicial Council will report the results to the legislature on or before January 2025. The legislature can then consider whether to make these provisions permanent.

    Settlement Considerations
    The value of cases which qualify for this expanded damages rule has increased. In some cases, the added value will dwarf the economic damages. Parties must consider the added exposure to defendants in evaluating cases for settlement. Additionally, in cases where settlement does not require court approval, there may be some value to creating settlements which will not be reported to the Judicial Council.

  • What is the Truth?

    Many lawyers and claims professionals say that the litigation process is a search for truth. They will swear allegiance to a jury’s ability to ferret out the truth from conflicting evidence. And yet, more than 90% of all cases settle. The truth can be more slippery than you think.

    Individual Lens
    Each of us receives data through our own lens based on our experience and attitudes. Why We’re Wrong About Nearly Everything: A Theory of Human Understanding by Bobby Duffy provides multiple examples of people ignoring the facts in front of them. For example, a study reported in Behavioural Public Policy saw subjects looking at the exact same data about the effectiveness of gun control, but interpreting them to favor their own pre-conceived views.

    Lawyers know it is impossible to ferret out every possible micro-experience in a potential juror’s background. They depend on the collective knowledge of the group to arrive at a favorable result.

    Socrates Said There is No Absolute Truth
    All of us filter the information we receive through our own mental and sometimes physical viewpoint. Several witnesses to an event may tell different stories about what occurred. What is more probably true than not? Are you sure?

    This conundrum really breaks down when fact-finders are asked to decide between expert opinions. I often tell mediating parties about a case I was involved in which ended with a large verdict in favor of the plaintiff. The pivotal issue was causation. Did they really think the defendant’s act caused plaintiff’s damages? It didn’t matter. The jurors’ collective response was summarized by one representative statement: “She was just so sick.”

    The Search for Truth is an Obstacle to Settlement
    More often than not, parties never get to a judgment which establishes the “truth.” They do settle, but not before spending time and money beyond a point when they knew enough to settle.

    Mediation helps parties see beyond a search for an absolute truth to evaluate all the relevant factors and settle sooner.

  • New Restrictions on Confidentiality in Settlement Agreements

    Effective January 1, 2022, amended California Code of Civil Procedure §1001 expands restrictions on confidentiality clauses in settlement agreements.

    Previous law barred such clauses in agreements settling filed civil or administrative actions alleging sexual assault or sexual harassment. Only the identity of the claimant and the amount of the settlement could be protected.

    The new provisions expand the prohibition to include

    1) acts of workplace harassment or discrimination not based on sex, and

    2) acts of harassment or discrimination not based on sex by the owner of a housing accommodation.

  • 3 REASONS HONEST WITNESSES TELL FALSE STORIES

    Many cases turn on the recollection of “percipient” or “occurrence” witnesses. These are people who used their senses to see or hear relevant evidence. Less commonly, they might have smelled, touched,   or tasted something. Percipient witnesses contrast with expert witnesses, who are usually engaged in anticipation of or during litigation. Expert witnesses rely on evidence which has been submitted to them so they can render an opinion based on their education and experience. They need to record what they relied on, but don’t have a recollection of the events of the case as they occurred.
    Honesty Isn’t the Issue
    In his 2021 book Why The Innocent Plead Guilty And The Guilty Go Free/ And Other Paradoxes Of Our Broken Legal System, federal district judge Jed S. Rakoff explains why eyewitness testimony in criminal cases is unreliable. Those same reasons apply to percipient witnesses in civil cases.

    1)The witness’s own level of stress at the time of the incident affects and can impair their recollection.

    2)The inherent human tendency over time is to add embellishments to enhance the completeness of the recollection or simply to accord with preexisting biases.

    3) There is a wide range among people’s ability to retrieve memories of events that lasted only a short time.

    It’s An Old Story
    In the celebrated 1950 film Rashomon, multiple percipient witnesses tell wildly different versions of the same event. Today, the well-known unreliability of eyewitnesses is sometimes called the Rashomon Effect.

    What to Do?
    A witness may really believe the story that witness is telling—and that story could hurt your case a lot. It’s hard to predict how the trier of fact will view conflicting evidence. Witness unreliability is one reason why going to trial is such a gamble. Recognizing this paradigm should prompt you to choose mediation  to settle sooner rather than later.

  • 50 SHADES OF NEGOTIATION GREY

    No, this post doesn’t qualify as erotica. It’s about the ability to see nuance. Most cases are not black-and-white, no-doubt-about-it, situations. Rather, there are shades of grey. If this were an open-and-shut case, chances are that claim would not be in dispute.
    It’s Part of Empathy
    Being able to see all the facets of an issue enhances your ability to negotiate a settlement. You can best meet your opponent’s arguments if you take the time to put yourself in that person’s shoes long enough to figure out what those arguments are. Then you can best meet them.

    While it is appropriate to research all the facts and law that help predict an outcome,  when researchers choose to dismiss negative findings, they will not be able to constructively negotiate. Only interpreting findings as favorable, a mindset known as confirmation bias, prolongs conflict.

    When initial research reveals negative information, the impulse may be to just keep digging. This attitude manifests itself in the actions of litigators who, for example, keep designating treaters and experts in the hope that somebody will back up their position. An analogy might be to a company which continually engages in research and development, but never actually brings a product to market. That’s not what success looks like.

    Grey Is Stressful
    Uncertainty generates stress. Parties in mediation sometimes tell me how relieved they are that the dispute is over, even when they got a result they see as unfavorable.

    Settlement isn’t about who’s right and who’s wrong. It’s about showing everyone that concluding the dispute is in their own self-interest. Mediation is the place to do that.

  • SETTLEMENT AND THE BOTTOM LINE

    The offer on the table was a good one, but the attorney thought there was hope for something better. Then I took the attorney through the “what if’s.”

    Expenses Matter
    How much will it cost to bring this case to trial? What about experts’ fees? I asked the attorney to create two financial statements, one that showed the net financial result now versus the likely result after more litigation. Viewed in the most favorable light, more litigation produced the same financial benefit in the end. And if the result was not so favorable, prolonging the stress and financial outlay would have a negative financial result.

    Attorney’s Fees
    It costs money to run a law office. In a contingent fee practice, there is a lot of outgo before the reward comes in. When an attorney’s resources are at capacity, the choice is to turn away business or expand staff and space, thereby increasing the cost of running the office.

    I asked the lawyer what his hourly fee would be if he kept litigating. “I’m on contingency. It’s the same.” “No,” I explained, “when your fee is contingent, the longer you work, the lower your hourly rate.”

    For what appeared to be an ego-driven motive, not only was this attorney determined to keep fighting the client’s case for no foreseeable financial benefit, he was undermining his own financial stake in the matter.

    Part of my job as mediator is helping parties, adjusters, and their lawyers see the full range of issues and possible results.

  • SIBLING HATE

    A Minnesota appellate case shows how damaging intra-family business disputes can be.

    The four Lund siblings had inherited equal shares of a trust holding a chain of grocery stores. The oldest sibling sued to force a buy-out of her shares on the ground that she had a reasonable expectation of financial independence and liquidity. She alleged breach of fiduciary duty, unfairly prejudicial conduct, and civil conspiracy. Defendants, including her CEO/brother, claimed that the requested buy-out elevated one sibling’s interests over the others’ and would force the company to take on debt to finance the buy-out. The court threw out some of the claims, but the case continued on the unfairly prejudicial conduct and equitable relief claims.

    The sibs could not agree on a buy-out price, so a trial ensued during which the opposing expert’s valuations were about sixty million dollars apart. In Solomon-like fashion, the court picked a number roughly halfway in between.

    But they weren’t done yet. Both sides appealed. The appellate court largely upheld the trial court, except that the trial court had denied the defendant’s claim that they be reimbursed their $800,000 in legal fees from the trust property. Ruling that the lower court had employed an incorrect standard, that issue was remanded for further proceedings. The Minnesota Supreme Court recently declined review.

    The Real Cost
    After five years of litigation, the plaintiff won her case. If the defense spent $800,000 in legal fees, the plaintiff probably spent a similar amount, perhaps more—a lot more—if the fee agreement included a contingency kicker.

    Undoubtedly, the litigation created friction among the siblings, the full extent of which the public is unlikely to learn. This kind of animosity affects younger generations, too, and ravages family gatherings.

    The judge ordered and the parties agreed to mediation. Obviously, it didn’t take. During the trial, the judge implored the parties to settle, quoting the New Testament and philosopher Reinhold Niebuhr.

    Mediation offered an escape from the costs, animosity and stress of litigation. As these harms escalate, parties who previously rejected settlement may revise their view of what they really need. A benefit of mediation is that parties can agree to solutions, such as family counseling, that a judge is powerless to require.

    The Lesson
    There is no limit on how often parties can come to mediation. If the first mediation was unsuccessful, a second–or third–one may produce results as parties get new information and adjust their views. Mediation can occur while an appeal is pending. At this point, the parties know the full extent of the evidence and the likely outcome. Cases resolve in appellate mediation more often than not. Mediation can limit the damage to the family and its business.