Am I THAT Out of Touch?

In the past few weeks, I’ve run into some head scratching cases in the small claims court.  Cases that make me wonder, “Have I completely overestimated what the average lay person understands about the law?”

I’m not talking about the Rule Against Perpetuities, ERISA, or arcane sections of the Tax Code.

I’m talking about one of the most basic aspects of our legal system. A foundation of what used to be our capitalist economy – the corporation.

The first head-scratcher case involved a young man who brought his car to a well known, franchised auto repair shop to have a part replaced.  The part was either incorrect or incorrectly installed and the engine blew. This really isn’t important to the story other than to illustrate that he had a legitimate claim.

Care to take a guess who this guy sued?

“The parent company of the well known, franchised auto repair chain?” Nope.

“The franchisee corporation that owns the local auto repair shop?“  Guess again.

“God?“ Nah.

He sued the Service Manager.  Personally. The hourly employee who stands at the front desk, greets customers, fills out orders and invoices, passes car keys to the grease monkeys and accepts payment.  The guy wasn’t even an owner. To make matters worse, when the case came to trial, the Service Manager was no longer the Service Manager.  He was unemployed.

I called impasse within 5 minutes of being handed the case because I was not going to even suggest that the ex-Service Manager make a settlement offer.  It seemed ridiculous.

I also tried to explain to the aggrieved customer (who looked like he had a case, since the part they installed was for the same make vehicle but apparently a different model) why the case would go back to the judge and what might happen there.  I asked him,. “If you went to Home Depot and bought a drill, and that drill caught fire when you plugged it in, would you sue the cashier?”  All I got in return was a blank stare.

Is the corporation really that difficult a concept for the average person to understand?

What about insurance?  Everyone is supposed to have it.  Shouldn’t everyone have a vague idea how it works?

Yesterday, I was handed another head-scratcher case.  We never even got to the mediation room.  As I walked from the Courtroom to the mediation room, I read the file.  Turns out that the plaintiff’s car was somehow damaged and the plaintiff filed an insurance claim.  The insurance company contracted with an independent adjuster/appraiser to assess the damage.  For whatever reason, the insurer then denied the claim.  That really isn’t relevant to the story.

Care to take a guess who this person sued?

“The person who caused the damage?” Nope.

“The insurance company?” Too easy.

“The U.S. Government, which is well on it’s way to nationalizing the banking and insurance sectors?“  Guess again.

The plaintiff sued the independent adjuster, because, as the plaintiff put it, “He refuses to fix my car.”  Ninety seconds with the adjuster confirmed that he wasn’t in any way responsible for the damage, wasn’t an employee or representative of the insurer and had no settlement authority.   I didn’t even bother trying to explain this to the plaintiff, who kept telling me, in subtle variations,  “That man won’t fix my car.”  I sent them right back to the Court.

Is insurance such a foreign concept?  Is the concept of “independent contractor” that complex?  Didn’t this person speak with an insurance agent or broker?

Am I that out of touch with what the “average” lay person knows and understands?

Fordham Law Symposium – “Against Settlement”: 25 Years Later.

One of the worst things about being 900 miles from my law school alma mater is that I typically cannot attend the excellent events they hold.   Case-in-point:  Against Settlement: Twenty-Five Years Later. The Fordham Law Review has assembled an impressive roster of well-known professionals from the ADR, complex litigation, and public interest communities to discuss the role of settlement and adjudication in civil litigation, including Owen Fiss, the author of the seminal article Against Settlement, Kenneth Feinberg, and Michael Moffit of ADR Prof Blog, as well as distinguished members of the Fordham faculty and family.

Really want to keep your dispute “quiet”? Hire a mediator early.

Mediator Kevin Whitaker recently commented on a news item in which a union official bemoaned the need to bring “a third party [the mediator] into our business.”   Kevin suggests that this is because “mediators don’t go around discussing their successes publicly.”

Is that really the case?  Would a union official really be wholly unaware of the benefit of mediation?  Doubtful. The fact that the union issued a press release complaining that it had to bring a third party into it’s business is completely disingenuous.   The official wanted public sympathy.   He wanted to make the big bad employer seem bigger and badder by suggesting that they wouldn’t bargain in “good faith”  and need a mediator to keep them “honest.”

Nevertheless, Kevin’s post makes some excellent points:

More disputes would be well served by the early assistance of dispute resolution specialist, someone who is interested in getting to a solution rather than defending a position or advancing an interest. Interestingly enough, with a skilled mediator’s help, odds are more disagreements will be resolved quietly before the dispute ever becomes newsworthy. Thus, if you really want to keep outsiders “out” and your dispute quiet, mediation may actually be the best place to begin.

I always tell the parties in mediation that one of the key benefits is confidentiality.   Free from the concern that their willingness to compromise might be used against them later, the parties should be able to discuss their interests candidly.  Furthermore, if the subject matter of the suit is particularly sensitive, like a harassment suit or even malpractice allegations, mediation can be a way to discuss settlement without putting the matter on record.  I keep things so confidential, I even shred my notes after mediation.

If you really want to keep your dipsute “quiet”, then you should really consider hiring a mediator early.

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.”