What Happened to the Year and a Day Rule?

Yahoo News reports that a man who shot and wounded a police officer more than 41 years ago and served 20 years for the assault will now stand trial for his murder after the police officer died last year. Yes, 40 years later. At age 64.

Judge Bradley Moss of the Philadelphia Court of Common Pleas allowed the trial to proceed despite the fact that he could not find any other case in the United States in which a suspect had been charged with murder so long after causing an injury, despite the fact that the medical examiners did not perform an autopsy and did not ruled out other causes of death, and despite the fact that the defense showed that the police officer had been involved in two car accidents after the shooting and also fell out of his wheelchair.

This is just weird. I’m no bleeding heart, but how is justice served by putting a 71 year old man who spent 20 full years in prison for his crime back in jail? Are the district attorneys elected in Pennsylvania? Is this an election year publicity stunt? Or maybe the judge is running for re-election? (They are elected here in Georgia).

While I haven’t practiced a day of  criminal law in my life, I got a B+ in it and stayed at a Holiday Inn Express last night.  What happened to the year and a day rule?

The Five Reasons Why Your Client Will Thank You For Suggesting Mediation!

This is now up on my redesigned and updated website.  Please drop in and let me know what you think of the redesign (if you didn’t see the old design, no worries).

The Five Reasons Why Your Client Will Thank You For Suggesting Mediation!

1. Your Clients Understand Plain Talk.

While it seems familiar to us lawyers, the legal process is daunting and unfamiliar to most clients. Interrogatories, depositions, and motions practice are all foreign concepts to them. But everyone understands plain talk. Mediation allows the parties to freely discuss their interests in a more relaxed, non-confrontational setting. When your clients mediate, they will understand the result and how they got there.

2. Your Clients Will Feel Involved.

Until now, you’ve called most of the shots. You’ve asked your client to answer interrogatories and provide documents. Helped them prepare for deposition. Suggested strategies and courses of action. During mediation, your clients will get involved. They will tell their story. Be asked their opinion. Present ideas. When your clients mediate, they will feel involved.

3. Your Clients Will Appreciate the Cost Savings.

Face it. It’s the 800 pound gorilla in the room. Somewhere near the front of your client’s mind is the thought that litigation is costing them significant direct and indirect costs. One study by the Justice Department showed that U.S. Attorneys who mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in costs compared to taking the matter to trial. When your clients mediate, they will appreciate the fact that you have actually saved them money.

4. Your Clients Will See the Value in Your Services.

You work hard preparing a case. But most of what you do takes place in a “black box” into which the client never peeks. Mediation allows you the opportunity to open up the black box and demonstrate the value of all that hard work. By preparing as if for a hearing or trial, organizing documents and exhibits to exchange, preparing an opening statement and drafting a list of talking points, you demonstrate to your clients what it is you do for them. When your clients mediate, they will see the value in your services.

5. Mediation works.

Finally, mediation works. I don’t quote my success rate to potential clients because I believe that my success (and yours) should be measured not by the quantity of cases that settle, but by the quality of the effort exerted in helping you reach resolution. The empirical data does show, however, that mediated cases settle at high rates. Simply Google “mediation success rates.” When your clients mediate, you are giving them the best opportunity to reach a resolution.

Welcome to the ADR Blogosphere, Nancy Hudgins!

Take a few minutes and visit the relatively new blog by Nancy Hudgins, a Bay Area mediator and civil litigator. Nancy was kind enough to drop by and comment on one of my recent posts. Her blog has the admirable goal of “making a pitch for putting the “civil” back into civil litigation.” I couldn’t agree more.

Looking forward to more dialogue with Nancy.

Cheers.

Georgia Supreme Court Rules That Mediator Can Testify to Competence of Party

Late last year, the Georgia Supreme Court heard an interesting case challenging the scope of the mediator’s confidentiality. In brief, Mr. Wilson and Mrs. Wilson agreed to attend mediation, without counsel, to discuss a divorce settlement. While the case had initially been referred to mediation via the County’s ADR program, the Wilsons did not choose a mediator from the County ADR program’s list, choosing instead to agree to another mediator (who was registered with the State). They also neglected to inform the County ADR Supervisor that they were agreeing to mediation.

The parties reached agreement at mediation and signed a settlement agreement on December 22, 2006. Five days later, the husband wrote to the wife’s attorney claiming that he no longer agreed to the terms of the agreement and declaring it “set aside” under Model Court Mediation Rule 12(d)(2), which gave him three calendar days to object. He also contended that he was not competent to enter the agreement because he “suffered from depression, was bothered by his medication, was exhausted, and lacked the mental and physical stamina to understand the obligations he was undertaking.” Problem was, Rule 12(d)(2) requires him to notify the County ADR Supervisor, not opposing counsel.

More after the jump.

Totally OT Post – Go outside and watch the lunar eclipse

I am an unabashed nerd. I find most things scientific and technological fascinating, especially astronomy. It has been a while since I’ve taken any astronomy classes or spent hours gazing through a telescope, but that doesn’t make tonight’s eclipse any less exciting. So, go outside around 8:45 pm, EST and watch as the moon passes through earth’s shadow, wholly obscuring it from view. According to NASA, the next total lunar eclipse won’t be until December 21, 2010 (interestingly, on the winter solstice).

The Negotiation Guru Blog

Some of you may be familiar with Jens Thang’s Negotiation Guru blog, but I only recently discovered it after he commented on Vickie Pynchon’s recent post “How to Make Your Opponent Do What You Want Him to Do.” I have only skimmed through the content (I have to attend a 2 year old’s birthday party), but what I’ve seen so far is very interesting and well written. I plan to take a deeper look this week and suggest that you do, too.

Mediation under IDEA (Individuals with Disabilities Education Act)

Over at Ability Law Blog, Randy Chapman has an interesting post entitled “We Can Work It Out Part II: Using Mediation.” Randy discusses the benefits of using mediation to help resolve disputes under IDEA 2004 – the Individuals with Disabilities Education Act.

I was unfamiliar with this legislation but after a brief review of Randy’ site and others about IDEA it appears that disputes under the IDEA are well suited for mediation. In fact, the regulationsspecifically state that “A written, signed mediation agreement under this paragraph is enforceable in any State court of competent jurisdiction or in a district court of the United States” and further requirethe state department of education “to bear the cost of the mediation process, including the costs of meetings described in paragraph (b)(2) of this section.”

The $54 Million Laptop? Great….a Roy Pearson Copy Cat.

It appears we have our first confirmed Roy Pearson copy cat. Washington Area consumer Raelyn Campbell is suing Best Buy for $54 million after they lost her $1,100 laptop computer. What makes Ms. Campbell only slightly different from Pearson is that a) she seems to have a legitimate gripe against Best Buy; b) she appears to have been reasonable in attempting to resolve the matter; c) she admits that she “has no expectation she will win a multimillion-dollar judgment”; and d) Best Buy handled the problem poorly. What makes her exactly the same as the infamous Judge Pearson is that she became entrenched in her position and rejected reasonable offers that protected her interests and fairly compensated her.

More after the jump.

Could Online Mediation Really Work?

The MSN Money Blog is reporting today about a new website called VirtualCourthouse.com. The web site claims to provide

a marketplace of qualified professionals to service your case needs. Our service lets you resolve cases entirely online, lowering your costs and increasing your volume.

While I can see the benefit of online arbitration or neutral evaluation, I’m somewhat dubious about how online mediation would work. Before anyone suggests that my resistance stems from some sort of protectionist attitude, I am all for developing new ways to help parties resolve disputes. Again, I see how this could work very well for small claims arbitration. Especially, as the article states,

[cases that have only] two parties, involves a dispute over money (as opposed to other forms of relief) and is not emotionally charged, he said. Fender-bender lawsuits fit the bill; custody cases and nasty disputes between neighbors do not.

In that case, there is not much testimony to hear or documents to review. As the founder of the website states,

[if you have a] soft-tissue injury in a rear-end automobile accident [where the plaintiff] went to a chiropractor 15 times and incurred bills of $2,600. . . . It’s just an issue of how much is reasonable compensation for this individual.

But one of the key benefits of mediation is the face-to-face interaction with the participants. To listen to their positions, their interests, their needs. How is this accomplished online? Chat rooms? I handle these type of cases a few days a month in small claims court. I doubt that any of them could have been settled online.

Does Confidentiality End with the Agreement?

Recently, I was able to help settle a particularly thorny contract dispute. Because tempers had flared and there appeared to be some bad blood between the parties, I was concerned about leaving the parties in the room while I brought the terms to the mediation coordinator so that she could type up the settlement agreement. When I jokingly asked if I could leave everyone in the room without the deal falling apart, counsel for one party remarked, “Don’t worry, we have an enforceable oral agreement.”

As I left the room, that seemingly innocuous comment got me thinking. Could the parties call me to testify that agreement had been reached and ethically, would I be able to testify? My initial thought was that upon agreement, the mediation ends. The terms of the agreement are not part of the mediation session. I recalled a similar discussion in my training class, but when I got home, I could not find anything further in my notes.
Further research revealed that the rules set forth by the Georgia Office of Dispute Resolution for court-annexed programs state:

Neither the neutral nor any observer present with permission of the parties in a court-annexed or court-referred ADR process may be subpoenaed or otherwise required to testify concerning a mediation or case evaluation or early neutral evaluation conference or, unless otherwise provided by court ADR rules, a non-binding arbitration, in any subsequent administrative or judicial proceeding. A neutral’s notes or records are not subject to discovery. Notes and records of a court ADR program are not subject to discovery to the extent that such notes or records pertain to cases and parties ordered or referred by a court to the program.

and further that:

Written and executed agreements or memoranda of agreement reached as a result of a court-connected ADR process are enforceable to the same extent as any other agreements. Oral agreements shall not be enforceable.

So, in the context of a court-ordered or court-annexed program, the answer would be a clear and simple, “No.” No, I could not be asked to testify and contrary to the attorney’s belief, no, his oral agreement is not enforceable.

But what about private mediations? The Rules of the Georgia ODR would likely be instructive, but not conclusive. Is the existence of an agreement protected by confidentiality? Can an oral settlement agreement be enforced (putting aside the Statute of Frauds for a second)?

Of course, it would be foolish to allow parties to leave the room without something in writing. But it is common to allow the parties to memorialize the terms in writing themselves, so that attorneys could add all the wonderful boilerplate they feel is necessary. In those cases, I would, of course, create a memorandum setting forth key terms of the agreement which all parties would sign. Even then, however, it might be necessary to clarify some points. Could I forced to testify that the amount was $30,000 not $35,000? Or that payment was due by certified check by close of business Friday, not close of business Monday?