Can the Evil Partner and his Untenable Position be an Effective Mediation Participant?

Vickie’s post on Type A Lord Voldemort type partners who ask first years to research whether the partner can assert a nearly untenable legal position led me to ask another question – more related to the mediation milieu:

I think all of the lawyer/mediators out there have, at one point or another, had that partner who told the million dollar client, “Yea, we can pull your chestnuts out of that fire,” hung up the phone and then told you to find out if he really COULD pull the client’s chestnuts out of the fire. Of course, if the young associate is smart and has read Vickie’s article, she’s come up with some ridiculous position based on some case from 1847 England, or worse, the ravings of some law school professor in an Ivy League law journal.

The partner is no dummy and after reading a memo so sparsely decorated with case citations realizes that no matter if it is Christmas or not, those chestnuts will be roasting on an open fire. Whether for reasons economic or egotistical, that partner will likely feel that he cannot now go back and tell this to the client. Of course, this puts everyone in a difficult position. So, they battle on.

Fast forward 1000 billable hours (from one overworked first year, of course) and the court directs the case to mediation. The partner has been advancing this position for months and telling the client how swimmingly the case has been going.

Now here are my questions:

Can an attorney who asserts a position with nearly zero support in fact or law be an effective participant in mediation? And how do you deal with him?

How to Deal With the EVIL Partner and Other Advice for First Years

Vickie Pynchon’s Settle it Now blog has an excellent post for young lawyers on how to deal with the EVIL PARTNER who will give you ridiculous research projects asking you to support untenable positions. Please read it and heed her words. Sage advice.

Above the Law & the Nixon Peabody “Theme Song”

I don’t know how I have missed both the Above the Law blog AND the story about the Nixon Peabody “not a theme song” song. More on Above the Law later.

First, I need to stop laughing at the Nixon Peabody story. According to Above the Law, the mp3 they link to in the second paragraph of this post is really a song commissioned by the firm for “internal use.” Why a law firm would want a theme song or any kind of song is completely beyond me.

I warn you now. Listening to this to more than 25 seconds of the over-synthesized, retro 80’s, Cameo “Word Up” wanna be pile of crap may make you sterile, reduce your IQ and make you wish you were interned at Gitmo. In fact, I’d suggest sending this to the CIA for use in all of those secret prisons we aren’t supposed to know about where they aren’t using “aggressive interrogation” tactics, but the UN might then really unite against us and impose economic sanctions for crimes against humanity.

All I can say in conclusion is that I had a case once against Nixon Peabody. This travesty couldn’t happen to a nicer bunch.

Now, I’ve been scanning some of the stuff at Above the Law. Its amusing, if a bit gossipy. But then, in this day and age, isn’t all news simply gossip?

Bar Exam Woes – Bad “Upload” Loses Data

The ABA Journal reports that approximately 400 essays for the New York bar exam may be incomplete due to “upload problems.”

Sort of reminds me of the old urban legend about NASA and the Russian space programs. Faced with the problem that ordinary pens could not write in the frigid, zero-gravity conditions in outer space, NASA reportedly spent millions of dollars designing what is now a common executive gift – the Fisher “Space” pen – which contains a pressurized ink cartridge enabling it to write “upside down” and at low temperatures.

The Russians reportedly solved the same problem by sending their astronauts into space with pencils.

Sometimes high technology isn’t such a good thing.

Not a good way to start a Friday…

I entered the kitchen this morning and saw the light blinking on the answering machine. Which was unusual for 2 reasons: First, nobody calls us on that line because between the wife and me, we have 6 phone numbers – 1 business line each, 1 cell phone each, a fax number and the old house line. Second, I don’t recall hearing the phone ring.

I press play.

Hello this is Mrs. X from BigBank Fraud Protection. I’m calling for Chris or Melissa Love (long story short, the wife kept her maiden name). I have some questions about some activity.

Now, this was disturbing for three reasons. First, my name isn’t Mr. Love and people I do business with would know that, so I am immediately on alert that this is some kind of “phishing” exercise. Second, I don’t bank at this particular bank. Third, my wife had her identity stolen by an illegal alien, who then got a phone line in her apartment and cable TV, paid the bill timely for a few months then skipped out on the last 2-3 months. Nothing too major, but still disturbing. On the plus side, the woman probably used it to get a job, so somebody paid Social Security taxes into her account.

After calling the main number for BigBank to find the Fraud department and speaking to a very helpful person there, I verified that the caller was a real fraud investigator and left her a message. Turns out that no fraud was perpetrated on me or my wife. But the reason she was calling was just as bizarre and disturbing.

She called to ask me if I had used MY bank’s online bill pay system to write a rather large check to a family member. This family member banks at the BigBank and they could not find record of a deposit into the family member’s account. Turns out the family member endorsed it over to their business and deposited it into that business account. Even though the family member is an officer and signatory on that account, the bank red flagged it.

I’m all for greater security, but I’m a little disturbed to know that the banks monitor our activity so closely. And where was all this fancy monitoring when the illegal alien used my wife’s social security number to open accounts in LAS VEGAS – 1500 miles from where we live?

Keep that case away from “biased” judges – Mediate!

In a speech published in the Fordham Law Review (my alma mater), entitled “The Secret Life of Judges,” Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit revealed

the judge’s inbred preference for outcomes controlled by proceduralism, the adversary system, hearings and experts, representation by lawyers, ramified complexity of doctrines and rules, multiple prongs, and all things that need and use lawyers, enrich them, and empower them vis-à-vis other sources of power and wisdom.

He continues that the bias is an

incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation—and the confidence and faith that these things produce the best results.

and further, that judges

all too frequently frame legal doctrines without considering the litigants’ transaction costs. Considering how many of us conscientiously think hard about the economic consequences of the outcomes we adopt, it seems strange that our cases reflect an almost complete disregard and ignorance of the costs, uncertainties, and delays inflicted by the judicial process itself.

What does this mean to you, the litigant or advocate? While you spend a significant amount of time fretting and agonizing over your case, likely on a daily basis, the judge does not. He is not thinking, “I wish this case could be resolved faster so that the litigants could return to their normal daily routine.” Judge Jacobs admits that judges simply assume that “the adversary process assures a fair fight and a just outcome.”

This is not always the case. Even when a party obtains a favorable outcome at trial, it may be a Pyrrhic victory. In addition to direct costs such as legal fees, witness fees, travel, and document reproduction costs (which typically total in the tens of thousands of dollars), the parties will also incur the indirect costs caused by the interruption of their business (or personal lives) while they or their employees attend depositions, hearings or meetings with their attorneys. Judge Jacobs uses the example of a local school board:

A school-board member exercising fiduciary duties will bow to anticipated demands rather than bear the cost of exercising or testing the board’s own rights, if only because the cost of litigating a flag, a reference to God, a locker search, a dirty word, or something like that, can easily cost the school board the annual services of a music teacher or a teacher of remedial reading.

This is why mediation offers several significant advantages over the traditional litigation process. A successful mediation results in a much shorter process than litigation, lower direct (legal fees) and indirect (lost productivity) costs, and affords the parties their only real chance to control the outcome of the litigation. Finally, because the parties are not formally bound by the strictures of the law (as would be a judge), the parties are also free to discuss, and agree to, creative solutions and remedies that a court would not be able to grant.

Say What?! – a collection of classic courtroom quotes.

I came across this amusing quote from Say What?!, the blog of Texas U.S. District Judge Jerry Buchmeyer:

From a letter confirming the mediation date of a Dallas mediator:

The fee for a dull day of mediation is seven hundred fifty dollars ($750) per day.

That’s brutal honesty.

Thanks to Stephanie West Allen for the heads up on the Judge’s blog.

Using ADR in Probate Disputes

I came across this interesting article by a probate lawyer promoting the use of mediation in probate disputes. He hits all the high points and provides a fair and balanced rationale for when mediation and arbitration are good alternatives to full-blown litigation. For example:

Probate disputes lend themselves to resolution in the mediation context because the costs of litigation are often prohibitive: for BOTH sides. A good mediator will take a personal interest in brokering a deal both parties can live with . . . and make it happen all in one day.

Now, I’m not certain we can promise to “make it happen” in one day, but I agree that probate disputes are one of the types of disputes best suited for mediation. Probate disputes typically involve parties with long-term, ongoing relationships – whether personal or business. Litigation tends to polarize the parties, entrenching their positions and shutting down the communication process. Mediation may encourage the parties to communicate in a more effective manner, which may lessen tension and misunderstanding.

Assorted Assininity

We got trouble, right here in the A-T-L. Trouble with a capital T and that rhymes with B and that stands for. . . . baggy pants?

An Atlanta City council member has put forth an amendment to the Municipal Code that would ban the display of underwear in public. This is, of course, aimed that aspect of hip-hop “culture” that encourages the wearing of pants 4 sizes too big buckled around the mid-thigh so that your boxer shorts are displayed prominently. As we all know, the sartorial choices of teenagers are what defines their future. I knew the minute that I first put on an Izod polo that I was destined to be a lawyer.

You can’t smoke in your own backyard in Sweden?

A Swedish woman has been banned from smoking in her own backyard after a neighbor complained that he had to wear a mask when he was in his garden. I don’t support smoking and find it an annoying and offensive habit, but people should be able to smoke on their own property. The woman told the daily paper Sydsvenskan, “It’s absolutely insane.” Couldn’t say it any better myself.

Sex Toy Robber Sentenced to Five Years

A British man who tried to hold up a betting parlor by pretending that a sex toy wrapped in a plastic bag was a pistol was sentenced to five years. Judge Philip Head said: “It’s right to record that you did not have a firearm but you pretended you had and intended that those you confronted believed that you did, and it must have been truly terrifying for them at the time.”

See, this is where our gun-obsessed American culture is clearly superior to those snotty Brits. No self-respecting American would ever mistake a day-glo colored rubberized phallus for a gun!

and finally,

Race Organizers in Scotland Take Out “Loch Ness Monster” Insurance

Organizers of a duathlon in Scotland have taken out a one-million-pound (1.46-million-euro, 1.97-million-dollar) insurance policy against attack by or sighting of the fabled Loch Ness monster. Transport operator FirstGroup said in a statement that its policy with insurers Royal and Sun Alliance would pay out should “Nessie” emerge from the murky depths of the vast watercourse and/or attack one of the competitors.

Japanese Labor Mediation Program Successful

The Japan Times reports that a mediation program designed to settle labor disputes between individual workers and companies has resulted in the settlement of more than 80 percent of the 1,163 cases filed in it its first year. The process is actually more like a Med-Arb, wherein a panel of three mediators – one chosen by each side and third neutral – conduct 3-4 mediation sessions. If the parties do not settle the matter, the panel renders a decision. The average case takes 74 days from filing to decision. I am not sure how long civil suits take in Japan, but 74 days must be somewhat of an improvement over full-blown litigation!

It would interesting to explore further the reasons why this program was so successful, especially considering the fact that Japanese culture is viewed as being traditionally hostile to lawyers, as well as to such conflicts between employee and employer.