Georgia Supreme Court Lifts Cap on Pain and Suffering Damages in Malpractice Claims

On Monday, a unanimous Georgia Supreme Court overturned one of the more controversial elements of the state’s 2005 Tort Reform act – a cap of $350,000 on “non-economic” damages (known better to you and me as “pain and suffering”).  Chief Justice Hunstein wrote that, “The very existence of the caps, in any amount, is violative of the right to trial by jury.”

Hat tip to local firm Fried and Bonder.  (I wouldn’t line a birdcage with the Atlanta Journal and Constitution, much less read it, so I might not have known about this for a few days.)

UK Litigation “Boom” is a Dud?

UK-based website The Lawyer reports that

The number of cases being launched in the High Court has reached a six-year high, but the much-­anticipated litigation boom has yet to take off.

Fiona Walkinshaw, a litigation partner of a London based firm suggests that ADR is the reason.  She states,

Many financial ­institutions will want to stay out of the public arena and opt for alternative means to settle claims.

Ms. Walkinshaw further stated that “it would be difficult to gauge litigation activity with so many ­corporates looking for alternative means of settlement.”

What Happens to Agreements to Mediate after Advanced Bodycare Solutions?

Last week, the Eleventh Circuit ruled in Advanced Bodycare Solutions, LLC v. Thione International, Inc., No. 07-12309, (April 21, 2008), that for purposes of the Federal Arbitration Act (FAA) mediation is not arbitration; therefore a party cannot use §3 of the FAA to enforce an agreement to mediate or mediation clause.* While I do not disagree with this specific, limited holding, I am still left to wonder about the enforceability of mediation clauses in light of the court’s obiter dicta.

On the one hand, the Court goes to great lengths to note that “[t]his opinion should not be read as denigrating mediation,” that they “encourage parties to make liberal use of [mediation],”** that they “encourage district courts to liberally employ any authority . . . to order mediation sua sponte.”

Despite all the pleasantries and platitudes about mediation in the final paragraph, the Court seemed to go out of its way to suggest that mediation is little more than a speed bump on the way to the courthouse, even stating that “agreements to mediate are [not] per se unenforceable.” That sounds like judicial doublespeak for “the Court really doesn’t think that mediation clauses are enforceable, but we are leaving open the possibility that there may be very limited circumstances where we may enforce them.”

More after the jump

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.

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.”

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.

Besieged Judge Hilton Fuller Steps Down in Nichols Case

By now, this probably isn’t even news to Geoff Sharp in New Zealand, but since it was in my backyard, I thought I’d comment. As you may have heard, retired Judge Hilton Fuller stepped down as the presiding jurist in the Brian Nichols/Fulton County Courthouse shooting case after he was quoted in the New Yorker as saying,

“Everyone in the world knows he did it.”

Since taking over the case because every other sitting judge in Fulton County rightfully recused themselves, he has been nothing but a “debacle and embarrassment.” Those aren’t my words. Those are the words of a Fulton County Superior Court Judge in an email to his colleagues.

The defendant, Brian Nichols, is accused of killing four people, the judge presiding over his trial for rape, the court reporter, a Sheriff’s deputy and a federal agent nearly three years ago. He overpowered a 51-year old, 5′2″ female sheriff’s deputy, took her sidearm, entered the courtroom and shot Judge Rowland Barnes in the back of the head.

Judge Fuller allowed the defense team to charge $175 per hour, nearly twice the rate paid to other court appointed counsel, and rack up nearly $2 million in bills, to be paid by the taxpayers. Because the State refused to cave to this extortion, he halted the trial during jury selection. He was also criticized by the Georgia legislature and the Fulton County District Attorney.

Two “tough but fair” jurists have volunteered to take over the case.

I fully understand that he is entitled to a defense, and the potential grounds for appeal, but for nearly three years Judge Fuller has coddled this man and his defense lawyers, compounding this horrible tragedy and rendering it an absurd joke (in the existential, Jean-Paul Sartre sense of the word).

I had my first taste of the housing market “collapse” today.

It was a sad case that likely portends the future. A contractor filed sued against a landlord and tenant for repairs to a rental property. The tenant claimed that he hired the contractor at the landlord’s direction and with the understanding that the landlord would assume the cost, or that the cost could be deducted from the rent. About a month after the repairs were completed, and before final payment was made, the tenant returned home to find a foreclosure and eviction notice on the front door.

Understandably, the contractor wanted to get paid and didn’t care from whom payment came. The tenant claimed that the landlord was responsible for the repairs, despite the fact that there was a signed, written “estimate” form, and he had made a deposit to the contractor. And the landlord failed to appear.

I have a feeling that we will be seeing this more and more in the coming months. What bothered me about this case was the fact that the landlord entered into the lease with the tenant with the knowledge that the property was in foreclosure. I’m not a real estate lawyer, but I don’t think a bank can foreclose after 90 days (the approximately length of time the tenant said he was in the property).

An Employee Handbook I Can Support

Courtesy of the WSJ Law Blog.

When I read the the L.A. Times story about their new “Employee Handbook,” I wanted to stand up and cheer.  Finally, a blow for common sense and plain language.  This Magna Carta of Employee Handbooks opens with the brilliant gem of wisdom:

Rule #1: Use your best judgment.
Rule #2: See Rule 1.

Now, as far as I am concerned, it should end there.  But due to certain societal trends that has led to a more “open” and “informal” atmosphere in the workplace, some further guidance was required.  The article lists several other mandates included in the manual, such as,

4.5. Making the building too hot, banging on trash can lids or loud bagpipe music are annoyances you can complain about,” but such actions don’t constitute harassment on the basis of protected characteristics.

7.1. If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated. See Rule 1. Coming to work drunk is bad judgment.

7.2. If you do not use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated.

I really like that last one, because in certain sectors of modern corporate America, “fail[ure] to perform the duties required by your job acceptably” is no longer grounds for dismissal.  Well, it is, but only after 4 verbal warnings, 6 written warnings, 10 counseling sessions and a trip to the principal’s office.   Of course, there were lawyers quoted in the article as saying the handbook was too vague, and “made a lot of mistakes,” but a quick Google search reveals that the lawyer makes his money counseling big corporate clients on how to draft 800-page, “comprehensive” employment policies. Imagine that.

Response to Vickie Pynchon’s Post Re: Licensing.

Over on the estimable Settle It Now blog, Vickie Pynchon solicited comments from the ADR blogosphere regarding development of licensing standards for mediators.

I tend to hold classically “liberal” free market ideals (see, e.g., Milton Friedman), so I generally chafe at the idea of granting any governmental “agency” the authority to dole out licenses. Even so, I recognize the benefit of having medical and dental licenses, or having the Bar exam or CPA exam. After some thought on the subject, however, I cannot see how a mediation licensure program would protect consumers or would prevent the abuse illustrated in Vickie’s original post.

First and foremost, all a certification/licensure program ensures is that the neutral has met a bare minimum standard, nothing more. Having certification does not guarantee quality of service. What’s the old saw? What do you call the person who graduated last in his class at med school? Doctor. Sophisticated consumers know to independently vet providers of professional services. Unsophisticated consumers do not. Licensure will not change this.

Not even a rigorous testing procedure, such as the 2-3 day bar exam or week long “boards” that doctors complete, can eliminate the problem of unscrupulous individuals taking advantage of the ill-informed. I’ve seen cases where lawyers miss simple deadlines, costing clients millions. I’ve seen cases where doctors kill patients because of sheer incompetence. Licensure did not and could not prevent these problems.

Second, there is a fundamental lack of understanding about ADR and ADR neutrals among the general populace. Would the general population even know to check to see if the ADR neutral was certified or registered with the state? I cannot believe the number of educated persons to whom I must explain in excruciating detail what it is I do. I can’t imagine that the “average Joe and Jane” knows and appreciates it either. So, even with licensing guidelines and requirements, would they know to ask? Highly doubtful.

Finally, I doubt there would ever be a single standard. Like it or not, ADR is tied to the legal system and as long as there are 50 State Bar associations governing licensure for attorneys, there will be 50 organizations seeking to control licensure of mediators and neutrals. While Georgia allows non-lawyers that meet other qualifications to act as neutrals, the Office of Dispute Resolution is “appointed by the Georgia Supreme Court.” It will be the same in other states.

I’m certain that this will not be a popular opinion among some of you, but I am a rational person and I am willing to listen to any rational argument in favor of licensing. I am certified. I trained the requisite number of hours, observed the requisite number of mediations and completed the application and ethics review process. Do I feel better off having done so? Yes, because I put my full focus and effort into it. Do I think the process would discourage or prevent an unscrupulous person who believed he could con people out of money doing it? Absolutely not.