Don’t bite into that Starburst. It’s CHEWY!!

In one of the most ridiculous lawsuits I’ve seen in a while,* Victoria Arthur, of Romero, Mich. is suing the Mars Corp for being too chewy. Romero claims that she took a few bites of a yellow Starburst and “and it literally locked my jaw … and it just literally pulled my jaw out of joint.” In the “It isn’t about the money” sound bite of the decade, Romero claims she brought the lawsuit because she didn’t “want to see anybody else have to go through what I have gone through from eating a piece of candy that was supposed to be soft chew.”

I don’t know who should be locked up, this wingnut or her attorney. Come to think of it, the last bag of M&M’s I ate melted in my hand, not in my mouth. I’m going to call him on Monday and see if he’ll take my case.

In a related story, I’ve just been informed that the notorious rider in Van Halen’s performance contract has been amended to exclude all yellow Starburst.

Have a great weekend, everybody.

*I was going to write about this story, but the Starburst case eclipsed it in the “what an idiot” category by a factor of a billion.

When does reality testing cross the line?

When I first announced to friends and colleagues that I was starting my mediation practice, I received a lot of advice. The advice from the experienced litigators seemed to be the same: Don’t be one of those mediators who shuttles between rooms and simply says “They’re at $50k. What are you going to counter with?” Experienced litigators want the mediator to reality test their clients for various reasons. Along those lines, Geoff Sharp of mediator blah…blah… posed an interesting question the other day,

Do some mediators scaremonger the parties at mediation in the name of reality testing?

It was in some ways a rhetorical question, but one that I think should be discussed. As Abe Ordover puts it in his book Alternatives to Litigation,

Helping parties understand the reality of their situation and its possible solutions is one of the main reasons attorneys suggest mediation to their clients.

But where do you cross the line from “helping parties understand” to forcing a party into a settlement position? In my experience, what the attorney typically wants is someone to help the client come to a realization of the weaknesses of his case. You also want to help reinforce the strengths because, as my wife once said after coming back from an HR training seminar, “You have to give them a little meat with their bread. Nobody wants a bread sandwich.” The metaphor of course being that bread is the bad news and meat is the good news. But since most people are convinced their position is “correct,” for whatever reason, the key to achieving a good settlement result is helping them understand that others might not see it that way.

For my money, the most effective method of accomplishing this is to ask pointed, but open-ended questions, such as, “Plaintiff just told me that [insert damaging testimony here]. If a jury hears that, how do you think they will react?” or “I understand you are asking for $50k. What evidence do you have to support your damages calculation?” These tend to make the parties think critically about how a third party might view their case in a non-judgmental manner.

While it may seem easy for an experienced former litigator acting as mediator to say, “Well, I had a case like this, and the jury entered a defense verdict;” when the mediator starts interjecting his own opinion and experiences, I’d say he’s started to cross that line. I take the position that if the parties wanted an opinion from a third party, they’d have submitted to an arbitration or stipulated the matter to the trial calendar. The mediator who seems to assert a position runs the risk of further polarizing the proceedings, which runs antithetic to the purpose of mediation.

I don’t think there is a right or wrong answer to this question, and there may be cases in which it is permissible, or even beneficial for a mediator to make value judgments about an argument or bargaining position. I’m interested in hearing what other practitioners think on this subject.

More on the Avvo Controversy.

I guess it is true that there is no such thing as bad publicity. It seems that just about every legal blogger is talking about Avvo and Avvo continues to get tens of thousands of hits. But the fact remains that the site, and its basic premise is flawed. Scott Greenfield of Simple Justice hits the nail on the head when he says

But the root of the problem is the number. I may never have tried a case, but if I got involved in all the bureaucratic nonsense of bar associations, made a few friends and wrote an article, I would still get a perfect 10. Paul’s answer is the Avvo does not promote the blind use of the rating number, but says that the rating is just the first step in the consumer’s search for a lawyer. There’s a link to the 3 things to do to select a lawyer. You probably missed the link, as did I. Will anybody read this stuff or just stop at the rating number? What do you think?

Avvo seems to be responsive to the criticism of the legal community, but does not appear willing to move away from its numerical ranking system.

Just wait until someone starts doing this for doctors. . .

An interesting blog about dark underbelly of the adversarial system.

One of the reasons I decided to leave my litigation practice and become a mediator was that I became fed up with what I perceived as abuse of the system. For example, clients who had nary a leg to stand on taking tenuous legal positions and damning the consequences with a “I’d rather pay my lawyers” attitude. Or, the ridiculous battle over the $54 million pants.

Most people are not aware how often such cases are brought, and only hear about it when the parties make an effort to get press exposure, or there’s a slow news day. Overlawyered explores this dark underbelly of the law, and discusses

an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public’s expense, and resists even modest efforts at reform and accountability.

Check it out.

The Avvo Rankings Controversy

In case you haven’t heard, a new internet site, Avvo claims to rate and profile lawyers using an objective “algorithm” that incorporates “information including experience practicing law, disciplinary sanctions, professional achievements, and client ratings.” Lawyers are already up in arms about this and some have filed a class action suit against Avvo, alleging that the ratings are “unreliable and meaningless, misleading to a consumer trying to find a lawyer.”

I’m not sure whether I loathe the idea of an Avvo.com as much as say, this gal, but I was going to jump on the dogpile this morning. Until I read this. Apparently, the owners of Avvo have realized some of the shortcomings of their rankings system and have acted accordingly. The key change they have made relates to the numerical rankings. Mark Britton, CEO writes,

we [will] apply a numerical Avvo Rating to a lawyer’s profile only when, in addition to having the lawyer’s licensing records, either we have collected information from the lawyer’s website or the lawyer has claimed his or her Avvo profile. Where we have only a lawyer’s licensing records, we will display an Avvo Rating for the lawyer of either “Attention” or “No Concern.”

They are also addressing one problem I noted while looking up some friends. Some lawyers are licensed in more than one state. Some have practiced for a number of years in one juridiction, but only a few years in another. This leads to duplicate profiles with oddly disparate rankings. Britton writes,

If a lawyer has more than one profile due to being licensed in more than one state (like me), he or she will soon be able to merge those profiles together into one.

These changes still don’t address the fundamental problem of the site – creating “objective” rankings from subjective data. I can understand the frustration many people face when trying to find a good lawyer. Most consumers have absolutely no idea how to go about choosing an attorney. I’ve gotten calls from people who needed a DUI lawyer or a will drafted and claimed to have simply pulled my name off the State Bar website. But ranking people based on the number of years of practice and whether they’ve been disciplined seems short-sighted.

If I were a consumer, I’d sure like to know that my lawyer didn’t graduate law school last May and that she had never been disciplined by the bar, but how do you rate the skills that make a good lawyer good – the ability to zealously and effectively represent a client’s interests?

Avvo claims to look at factors such as “experience practicing law, disciplinary sanctions, professional achievements, and client ratings.” Does the mere fact that you’ve been a member of the bar for 20 years make you a better lawyer? Of course not. You may not have even practiced law for that entire time. I will grant you that whether a lawyer has disciplinary sanctions against him is important to know, but when were those sanctions? Bankruptcy leaves your credit report after a certain period and you can’t be impeached in federal court by evidence of a criminal conviction over 10 years old. And what about those “professional achievements”? Doing pro bono work might make you a better person in the eyes of many, but does it make you a better lawyer?

Avvo just started, and clearly recognizes that it has a ways to go before it can truly live up to its claims, but is it really serving the interests of the public? For now, I’d say no, and take their rankings with a grain of salt.

Thanks for the warm welcome to the “Blogosphere”

I just wanted to give a big thanks to Diane Levin of the blog Online Guide to Mediation for her nice email and for adding me to the rolls of the World Directory of ADR Blogs. Diane’s sites hold a wealth of knowledge on mediation and negotiation.

I would also like to say hello to Vickie Pynchon of Settle It Now and the SoCal Mediation Association blogs. Vickie also reported on the apparent failure of the mediation program in the UK Technology and Construction Court and was kind enough to link back to my commentary.

Thanks to you both.

Pilot Mediation Program in UK Using Sitting Judges Fails

The UK magazine The Lawyer reports that a pilot program in the UK’s Technology and Construction Court in which sitting judges mediated the cases before them is headed for failure. The program was created in 2006 over the objections of solicitors, barristers and mediators, who described it as a “‘terrible idea’ that is not in the public interest.”

The practitioners who appeared before the court feared that the program would “damage the reputation of the court both in mediation and in its routine work as a tribunal evaluating the legal rights of the parties,” even though the judges received additional ADR training. Most felt that dispute resolution should be left to the professionals, and after a year, they appear to have been correct. An interim report on the two-year pilot scheme showed “no interest from litigants.” The study further showed that of the nearly one-third of disputes that settled as a result of mediation used a barrister as the mediator.

As an ADR professional, I hate to see programs such as this fail, but in this case, I can understand why. It is my understanding that in English civil courts, in general, and in the Technology and Construction Court, specifically, the judge renders the verdict. Having been a litigator and a participant in a number of mediations, I can understand the reluctance to use as a mediator the very person who may later sit in judgment of your case.

Mediation is a confidential process through which the parties are encouraged to share with the mediator their interests and needs, which they may not have communicated to anyone prior. Parties are also encouraged to think creatively about a solution which may not coincide with their legal rights. These positions are never shared with the trial judge. I imagine it would be hard to look your judge in the face and say, “Well, we know we have some weaknesses in our case, so we are willing to compromise,” and expect him to set aside that knowledge if the matter doesn’t settle and later goes to trial. To borrow phrase used in just about every courtroom drama, you can’t un-ring a bell. As one solicitor said, “People like judges to be judges, as that’s what they’re good at.” The Technology and Construction Court will hopefully learn from this and restructure the program.

Dry Cleaners Win the Case of the $54 Million Pants

This is probably more appropriate for my weekly Friday Funny column, but its too damned funny not to comment on today.

Striking a blow for common sense and against the rampant abuse of power and position, District of Columbia Superior Court Judge Judith Bartnoff ruled against Administrative Law Judge Roy Pearson in his utterly ridiculous suit over the loss of a pair of pants from a maroon and blue suit. In a 23 page opinion, the court took Judge Pearson to task for his frivolous lawsuit, pointing out such embarrassing personal facts such as the Northwestern University educated lawyer collected unemployment and that the judge in his divorce made specific findings of fact that it had taken inordinately long, and blamed Pearson for the “excessive driving up of everything that went on [in the divorce].” In respect of the “missing pants” case, the court noted that Pearson presented nine witnesses and tendered over 100 exhibits, as compared to three witnesses and four exhibits for the defense.

After reciting a dozen pages of facts revealed in the two-day bench trial, the court finally ruled that

A reasonable consumer would not interpret “Satisfaction Guaranteed” to mean that a merchant is required to satisfy a customer’s unreasonable demands or to accede to demands that the merchant has reasonable grounds to dispute.

Even though the court ruled in favor of the defendant dry cleaners, the saga is not quite over. The court has yet to rule on the defendant’s motion for attorney’s fees and other sanctions for frivolous litigation against Judge Pearson. Also, there’s no word as to whether he will retain his position as an ALJ. Stay tuned.

Mandatory Mediation Program Paying Off in Rhode Island.

The Providence Business Journal reports that

A pilot mediation program started in 2005 in Superior Court has led to settlements in almost half the 70-plus medical malpractice cases it has handled so far – a success rate so high that the program is going to be made permanent and expanded statewide.

Prior to the program, such cases clogged the civil courts, with the average med mal case taking over six (6) years to resolution. When the plaintiff’s bar and consumer groups fought other reforms, Presiding Justice Rodgers set new parameters for discovery and instituted a mandatory mediation program overseen by retired Judge Richard J. Israel. In the past 2 years, the program has exceeded Justice Rodgers modest expectations, settling approximately 45 percent of the cases submitted.

Even members of the plaintiff’s bar are pleased with the results, as often times, mandatory mediation forces the defense to think critically about their case for the first time. As one local lawyer put it, without mediation, the first settlement talks might occur “on the steps of the courthouse, or after the jury was in the box, which is a wastefully late time to do it.”

Mediation also provides the plaintiff some chance at a resolution much sooner than at trial. Another member of the local plaintiff’s bar noted that while his clients do not like being “ordered” to mediation, it often “helps them resolve issues of liability and, if someone has done something wrong, holds them accountable,” all of which are essential parts of the process.

Finally, the project has shown that mediating cases saves everyone involved significant sums of money. By resolving the case early, the plaintiff’s attorneys typically spend less on expenses such as expert witnesses, medical records reviews and demonstrative exhibits. Since the plaintiff’s attorneys tend to work on contingency, they will front these expenses until a recovery is mad, which is not always guaranteed. Likewise, the defendants (more likely, their insurer) will save on expert witnesses, medical records reviews and demonstrative exhibits, but will also reduce the number of billable hours spent by defense counsel.

Based on the success of the pilot program, Justice Rodgers plans to expand the program to three other counties this fall.

New Weekly Item – The News of the Weird

Every Friday, in order to start the weekend off with a smile (or maybe a groan), I plan to post an amusing item I’ve come across. It may be related to the law, or not. But hopefully it will make you crack a smile. This week, we have two items, both from the Netherlands.

Sore Loser

Seven people from the small Dutch town of Heusden are extremely happy to have purchased a $10 ticket in the national postal lottery. In the Dutch lottery, prizes are given out based on a random drawing of zip codes. When their zip code was chosen, the seven neighbors each won 14 million Euros ($19 million). Their neighbor Helene de Gier was none too happy, however; she failed to purchase a ticket.

When the news came that her friends and neighbors were richer than Queen Beatrix, she sued the government for emotional distress. She claimed her neighbor was taunting her by parking his new Porsche in front of his house. She was also traumatized every time she addressed a letter and wrote her zip code down, which reminded her of the fact that she did not win.

Thankfully, the Dutch court threw out her claim, noting that “In the daily life of society, things happen that have unpleasant consequences for someone, but that doesn’t automatically mean the one causing them can be held liable.” Every once in a while common sense prevails.

One Careful Driver

In an unrelated story from the Netherlands, an 84 year old man shocked police officers at a random checkpoint when he revealed that not only had he driven for 67 years without a driver’s license, he never once received a traffic ticket, and had never registered a car or had a safety inspection. Thumbs up to this guy for beating the system!

Thanks to my friend Cliff for this news item.

Have a great weekend.