When Things Just Don’t Figure…
We are often confronted with confusing and conflicting technical data and statistics in confronting experts of all sorts. A few well chosen quotes or analogies can often be used with juries to debunk or blunt the impact of such testimony. Here are a few suggestions to add to your trial tactics bag of tricks:
1. Bomb Threat: (Use this story to illustrate the care that needs to be taken with statistics.) With the increase in terrorism at home and abroad, Mike worried about the risk of there being a bomb being planted on one of the many flights that he takes. His concern became so great that he begged a statistician to work out the probability of there being a bomb on any one plane. After some research his statistician came up with a result which, although very small, still gave Mike some concern. After a moment of thought, Mike requested the statistician to work out the probability of there being two bombs aboard a flight. It turned out that the risk of this happening was miniscul — so Mike decided to always take a bomb on board with him. Mike was arrested at last week at JFK Airport.
2. There three kinds of lies: lies, damn lies and statistics. Mark Twain.
3. Figures don’t lie, but liars figure. Mark Twain.
4. “Statistics show that very few of those who contract the habit of eating, survive.” Wallace Irwin.
5. President Dwight Eisenhower expressed astonishment and alarm on discovering that fully half of all Americans had below average intelligence. Similarly, some people get fearful when they learn that their doctor wasn’t in the top half of his class. (But that’s half of them.)
6. A defense attorney using statistics to explain away a plaintiff’s untimely and unexpected demise argued:
“Your honor and ladies and gentlemen of the jury. Research has established that 90% of individuals involved in similar accidents survive. Accordingly, we must conclude that in spite of the evidence of lack of respiration, heartbeat, and brain wave activity, and in spite of the unfortunate burial of the decedent, in my expert opinion I conclude that he did not really die, and therefore the plaintiff estate cannot recover.”
“A Tail Isn’t a Leg” Analogy – Saying its So, Doesn’t Make It So
Ever have an attorney argue a question of law or fact which just was not so. Some people believe if they say something loud and frequently enough, it makes it so. Abraham Lincoln had a pretty clever way of dealing with such tactics.
On one occasion, Abraham Lincoln, as a young trial lawyer in Illinois, was arguing a case with a lawyer whose version of the facts came more from the attorney’s fervent imagination than the testimony and evidence before the Court. Lincoln in his argument turned to the other lawyer and eviscerated him through a series of questions and answers:
“Tell me, sir, how many legs does a calf have?”
“Well, four, of course,” he answered. “
And if I call a tail a leg, how many legs would that calf have?”
And the answer came back: “He’d have five.”
Abraham Lincoln slammed down his hand on the jury box and roared “No! He’d still have four.
Just because you call a tail a leg doesn’t make it a leg.”
So now let’s see how many tails, you have been calling legs in this case.
Deposition Preparation Short List
Here is a short list of items to cover with your client the next time you have a discovery deposition:
1. Listen and make sure you understand the question.
2. Stop for five seconds and think.
3. Answer the question.
4. Is there more than one answer that is correct?
5. If there is, then you do not understand the question.
6. If you don't know when to start and and end in terms of the time frame, you don't understand the question.
7. If you try to win your case, then you will lose your case. Don't try to win it. In other words, don't take a good case, try to make it a great case and turn it into a bad case.
8. You don't know, what you don't know. So don't guess or speculate.
9. Keep your hands in lap, hold a paper clip and press the paper clip if you get nervous. Don't fidget.
10. Depositions are not conversations. Listen to the question and answer what's being asked. Do not volunteer information.
11. Don't worry about looking stupid… Ask the other attorney to rephrase the question, if you don't understand the question.
12. Be wary of "box questions" that try to limit you by the words "never, always, none and ever". There are almost always exceptions.
Sometimes, less is more. Keep it simple.
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Preparing for Mediation- It’s All in the Details
Thorough preparation for a mediation session increases the odds that you will be able to effectively and efficiently move your case towards settlement. Below is a checklist of items to address prior to your mediation:
1. Selection of a Mediator: This task is done in cooperation with the opposing party. If the case involves particularly complex issues and multiple parties, you may want to research and identify mediators who specialize in handling such cases. It is often useful to have a mediator who is familiar with unusual or complex legal issues (i.e. insurance coverage claim, multi-party construction contract dispute, pollution lawsuit, or intellectual property dispute, etc.). This will result in a more efficient use of the parties’ time at mediation. Remember, the mediator spends a great deal of time listening to a party’s position and carrying the parties’ messages back and forth. If you have a mediator with a background in the area of dispute, then he can more accurately explain a party’s position and suggest solutions to the dispute which may have been overlooked.
2. Complete all needed investigation and discovery: This should be done for any pivotal factual issues or key witnesses:
a. eyewitnesses
b. investigating police officers
c. primary treating physicians
d. accident reconstructionists
e. liability or damage experts
3. Liens and Litigation Expenses: Verify dollar amounts and complete contact information of adjuster/representatives for all outstanding liens asserted against your client. If the lien holder’s consent will be need to settle the case, advise him of the mediation date and time, so he can be available to you and the mediator. Some mediators are very effective at working down liens. You should consider the following types of liens:
a. Medicaid Liens
b. Medicare Liens
c. Health Insurance/ERISA Liens
d. Medical Payments Liens (auto or premises)
e. Disability Insurers
f. Hospital Liens
f. Other Creditors
In addition to liens, you should be prepared to address the costs you anticipate your client will have to pay out of any settlement if the case settles now versus if the case goes to trial. Make sure you have a handle on all litigation expenses including attorney fees, investigation costs, filing fees, expert fees, deposition expense, videotaping charges, filing fees, witness fees, exhibit preparation, coping costs, and other expenses which will come out of any settlement. Clients want to know what the bottom line is if they settle today, and mediators will often ask you about these expenses.
4. Legal Research: Conduct research on any pending or likely motions for summary judgment and be ready to address the merits of the same legally or factually weaknesses.
5. Expert Reports: Obtain any needed reports of expert opinions on any pivotal issues of liability or damages, and disclose any favorable findings sufficiently in advance of mediation to allow the opposing party to digest and consider the findings in their analysis of the case’s value.
6. Medical Records and Bills: Supplement and disclose all medical records and bills documenting client’s treatment sufficiently in advance of mediation to allow the opposing party to digest and consider the findings in their analysis of the case’s value.
7. Pending Motions: If there are pending motions not ruled upon by the court–such as discovery disputes, motion to bifurcate, summary judgment or other dispositive type of motions–then consider whether or not this will prevent any meaningful settlement negotiations until the motion is resolved. Sometimes a party will file such a motion to simply gain leverage during the negotiation process.
8. Indispensible Parties: Are there additional parties who bear joint responsibility for the harm being litigated and who are not joined as a party? If there is an insurance coverage dispute, then you will need to have all parties from the declaratory judgment action available for the mediation because they may be the actual decision-maker with the settlement money. You also may need to have parties from both the liability case and the insurance coverage case present. If the “insured”/defendant has assets, you may want him present to hear what is being discussed and consider whether he wishes to make up any shortfall between what the insurer is willing to pay and what is being demanded. The insured/defendant can also bring pressure to bear on the insurer if he is underinsured or only partially covered for the claim being made. If this is the case, then make sure you include any attorney privately representing the insured defendant in the settlement process.
9. Audio Visuals and Exhibits: You may want to use demonstrative exhibits during joint presentations such as a day-in-the-life video, video excerpts of a party’s deposition, MRI or X-rays, photos of your client’s injuries, diagrams or pictures of the scene, etc. Remember, a good picture is more eloquent and persuasive than any words you could use!
10. Preparation of Mediation Statement: The following are areas typically addressed:
a. Parties to the lawsuit and their background
b. Allegations and defenses
c. Procedural posture of the case
d. Statement of the case
e. Injuries, lost earnings and special damages
f. Disputed factual issues
g. Pivotal legal issues
h. Analysis of legal and factual issues (both strengths and weaknesses)
i. Jury verdicts or similar settlements
j. Current demands and last offer
k. Supporting exhibits–excerpts from depositions or records
11. Status Report to Client: Advise the client of the mediation date and provide him with a copy of mediation statement for input and comment.
12. Who Will Attend: Determine who will be present at mediation. You should be ready to address any potential problems this might create for the mediation process, and decide whether it could compromise the confidentiality of the attorney-client relationship. Sometimes friends or family members who are not parties may want to attend. You need to be ready to address problems this may create for you. Family members or friends can try to hijack the negotiations or usurp your role. You want to have this cleared up in advance. Make it clear who is the attorney and who will be speaking.
13. Who Will Speak: Decide if you want your client to speak at mediation. Adjusters seldom attend depositions and may never have met your client. If your client is well spoken, then allow him to make a brief statement regarding how his life has been affected or changed. Such a statement can go a long way in educating the adjuster that your client has sustained a real and viable injury, and that your client will make a good appearance at trial.
14. Explain the Process: You should meet with your client in advance, and discuss exactly what will happen and how he should behave. A client needs to avoid emotional reactions or attacks on opposing party or counsel, even if they are rude or abrasive. Remind your client that you lose your ability to persuade once you offend the other party or their representative. People are much more likely to want to reach a resolution if they do not dislike the other side.
15. Explain Confidentiality: Make it clear to the client that you will guide what is disclosed in joint sessions. The mediator is not there as a friend or as his attorney. You do not want to disclose information to the mediator without a good strategic purpose. Mediators have one goal… to settle the case. If your client reveals all of his insecurities or weaknesses, then the mediator will use this information as a tool to move your side towards settlement. On the other hand, the mediator can provide an effective “devil’s advocate” and help your client honestly appraise his case and its value. Also, remember that while an opposing party cannot ask your client about what was said in mediation, they can make derivative use of information disclosed at mediation, and follow up on leads learned during the mediation process. In fact, some attorneys will use mediation as a tool for focusing their discovery.
16. Discuss Settlement Value Ranges: Prior to mediation, you should discuss the parameters of an appropriate settlement with your client, but encourage him to be flexible should new information be revealed during the mediation.
17. Prepare Your Client: Make sure you remind your client of the date, time and place of the mediation the day before the mediation. Nothing is worse than your client failing to show up! I always provide my client with a map and directions to the site at the time I send them my mediation statement. I would also provide the client with your cell phone number, and the telephone number of the mediator you are using. Also, discuss with your client the importance of dressing appropriately for the occasion. Remember, you only get one chance to make a first impression!
You should explain the mediation process and let your client know what to expect, including the unexpected. Let the client know the importance of being flexible. Cover all of the ground rules concerning his participation outlined above. Go through the goals of your mediation. Your goals should include not only settlement, but obtaining a better understanding of your case’s weaknesses and strengths, as well as the costs and risks of going to trial if you are unable to reach a settlement. If you are unable to reach an actual dollar settlement, then you may want to consider negotiating a high-low agreement to reduce the risks to both sides of a crazy verdict.
18. Outline Your Opening Statement: Introduce yourself and your clients, express your optimism and willingness to reach a fair resolution, and outline the basis for the strength of your position. Address any known weaknesses that the other side will likely raise to show you are not afraid of them and will be able to effectively handle them at trial. If you are using a PowerPoint presentation or other electronic aids, make sure they work properly and have no glitches.
About the Author
Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Cook served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Cook began working as Deputy Prosecutor for the Lake County Prosecutor’s Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Cook received the Chief Postal Inspector’s Special Award, and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney’s office in 1989, Cook has focused primarily on civil work. Cook is also a member of the ITLA, Indianapolis Bar Association and the ABA. Cook writes a blawg on litigation topics at http://www.the-barristers-toolbox.com.
Cook is a member of the law firm of Yosha Cook Shartzer & Tisch located at 9102 North Meridian Street, Indianapolis, IN 46260, Telephone: 317-334-9200; Fax: 317-566-3578; email: rcook@yoshalaw.com.
APPENDIX
RULE 2. MEDIATION
Rule 2.1. Purpose
Mediation under this section involves the confidential process by which a neutral, acting as a mediator, selected by the parties or appointed by the court, assists the litigants in reaching a mutually acceptable agreement. The role of the mediator is to assist in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement as well as legitimate points of disagreement. Any agreement reached by the parties is to be based on the autonomous decisions of the parties and not the decisions of the mediator. It is anticipated that an agreement may not resolve all of the disputed issues, but the process can reduce points of contention. Parties and their representatives are required to mediate in good faith, but are not compelled to reach an agreement.
Rule 2.2. Case Selection/Objection
At any time fifteen (15) days or more after the period allowed for peremptory change of judge under Trial Rule 76(B) has expired, a court may on its own motion or upon motion of any party refer a civil or domestic relations case to mediation. After a motion referring a case to mediation is granted, a party may object by filing a written objection within seven (7) days in a domestic relations case or fifteen (15) days in a civil case. The party must specify the grounds for objection. The court shall promptly consider the objection and any response and determine whether the litigation should then be mediated or not. In this decision, the court shall consider the willingness of the parties to mutually resolve their dispute, the ability of the parties to participate in the mediation process, the need for discovery and the extent to which it has been conducted, and any other factors which affect the potential for fair resolution of the dispute through the mediation process. If a case is ordered for mediation, the case shall remain on the court docket and the trial calendar.
Rule 2.3. Listing of Mediators: Commission Registry of Mediators
Any person who wishes to serve as a registered mediator pursuant to these rules must register with the Indiana Supreme Court Commission for Continuing Legal Education (hereinafter “Commission”) on forms supplied by the Commission. The registrants must meet qualifications as required in counties or court districts (as set out in Ind. Administrative Rule 3(A)) in which they desire to mediate and identify the types of litigation which they desire to mediate. Two or more persons individually who are qualified under A.D.R. Rule 2.5 may register as a mediation team. All professional licenses must be disclosed and identified in the form which the Commission requires.
The registration form shall be accompanied by a fee of $50.00 for each registered area (Civil or Domestic). An annual fee of $50.00 shall be due the second December 31st following initial registration. Registered mediators will be billed at the time their annual statements are sent. No fee shall be required of a full-time, sitting judge.
The Commission shall maintain a list of registered mediators including the following information: (1) whether the person qualified under A.D.R. Rule 2.5 to mediate domestic relations and/or civil cases; (2) the counties or court districts in which the person desires to mediate; (3) the type of litigation the person desires to mediate; and (4) whether the person is a full-time judge.
The Commission may remove a registered mediator from its registry for failure to meet or to maintain the requirements of A.D.R. Rule 2.5 for non-payment of fees. A registered mediator must maintain a current business and residential address and telephone number with the Commission. Failure to maintain current information required by these rules may result in removal from the registry.
For the billing of calendar year 2011, when this Rule becomes effective, registered mediators must pay the $50.00 annual fee and a one-time fee of $25.00 for the time period July 1, 2011-December 31, 2011, for a total of $75.00 per registration area. The annual fee shall be $50.00 per calendar year per registration area thereafter.
On or before October 31 of each year, each registered mediator will be sent an annual statement showing the mediator’s educational activities that have been approved for mediator credit by the Commission.
Rule 2.4. Selection of Mediators
Upon an order referring a case to mediation, the parties may within seven (7) days in a domestic relations case or within fifteen (15) days in a civil case: (1) choose a mediator from the Commission’s registry, or (2) agree upon a non-registered mediator, who must be approved by the trial court and who serves with leave of court. In the event a mediator is not selected by agreement, the court will designate three (3) registered mediators from the Commission’s registry who are willing to mediate within the Court’s district as set out in Admin. R. 3 (A). Alternately, each side shall strike the name of one mediator. The side initiating the lawsuit will strike first. The mediator remaining after the striking process will be deemed the selected mediator.
A person selected to serve as a mediator under this rule may choose not to serve for any reason. At any time, a party may request the court to replace the mediator for good cause shown. In the event a mediator chooses not to serve or the court decides to replace a mediator, the selection process will be repeated.
Rule 2.5. Qualifications of Mediators
(A) Civil Cases: Educational Qualifications.
(1) Subject to approval by the court in which the case is pending, the parties may agree upon any person to serve as a mediator.
(2) In civil cases, a registered mediator must be an attorney in good standing with the Supreme Court of Indiana.
(3) To register as a civil mediator, a person must meet all the requirements of this rule and must have either: (1) taken at least forty (40) hours of Commission approved civil mediation training in the three (3) years immediately prior to submission of the registration application, or (2) completed forty (40) hours of Commission approved civil mediation training at any time and taken at least six (6) hours of approved Continuing Mediation Education in the three (3) years immediately prior to submission of the registration application.
(4) However, a person who has met the requirements of A.D.R. Rule 2.5(B)(2)(a), is registered as a domestic relations mediator, and by December 31 of the second full year after meeting those requirements completes a Commission approved civil crossover mediation training program may register as a civil mediator.
(5) As part of a judge’s judicial service, a judicial officer may serve as a mediator in a case pending before another judicial officer.
(B) Domestic Relations Cases: Educational Qualifications.
(1) Subject to approval of the court, in which the case is pending, the parties may agree upon any person to serve as a mediator.
(2) In domestic relations cases, a registered mediator must be either: (a) an attorney, in good standing with the Supreme Court of Indiana; (b) a person who has a bachelor’s degree or advanced degree from an institution recognized by a U.S. Department of Education approved accreditation organization, e.g. The Higher Learning Commission of the North Central Association of Colleges and Schools. Notwithstanding the provisions of (2)(a) and (b) above, any licensed professional whose professional license is currently suspended or revoked by the respective licensing agency, or has been relinquished voluntarily while a disciplinary action is pending, shall not be a registered mediator.
(3) To register as a domestic relations mediator, a person must meet all the requirements of this rule and must have either: (1) taken at least forty (40) hours of Commission approved domestic relations mediation training in the three (3) years immediately prior to submission of the registration application, or (2) taken at least forty (40) hours of Commission approved domestic relations mediation training at any time, and taken at least six (6) hours of approved Continuing Mediation Education in the three (3) years immediately prior to submission of the registration application.
(4) However, if a person is registered as a civil mediator and by December 31 of the second full year after meeting those requirements completes a Commission approved domestic relations crossover mediation training program (s)he may register as a domestic relations mediator.
(5) As part of a judicial service, a judicial officer may serve as a mediator in a case pending before another judicial officer.
(C) Continuing Mediation Education (“CME”) Requirements for All Registered Mediators. A registered mediator must complete a minimum of six hours of Commission approved continuing mediation education anytime during a three-year educational period. A mediator’s initial educational period commences January 1 of the first full year of registration and ends December 31 of the third full year. Educational periods shall be sequential, in that once a mediator’s particular three-year period terminates, a new three-year period and six hour minimum shall commence. Mediators registered before the effective date of this rule shall begin their first three-year educational period January 1, 2004.
(D) Basic and Continuing Mediation Education Reporting Requirements. Within thirty (30) days of presenting a Commission approved basic or continuing mediation education training course, the sponsor of that course must forward a list of attendees to the Commission. This list shall include for each attendee: full name; attorney number (if applicable); residence and business addresses and phone numbers; and the number of mediation hours attended. A course approved for CME may also qualify for CLE credit, so long as the course meets the requirements of Admission and Discipline Rule 29. For courses approved for both continuing legal education and continuing mediation education, the sponsor must additionally report continuing legal education, speaking and professional responsibility hours attended.
(E) Accreditation Policies and Procedures for CME.
(1) Approval of courses. The Commission shall approve the course, including law school classes, if it determines that the course will make a significant contribution to the professional competency of mediators who attend. In determining if a course, including law school classes, meets this standard the Commission shall consider whether:
(a) the course has substantial content dealing with alternative dispute resolution process;
(b) the course deals with matters related directly to the practice of alternative dispute resolution and the professional responsibilities of neutrals;
(c) the course deals with reinforcing and enhancing alternative dispute resolution and negotiation concepts and skills of neutrals;
(d) the course teaches ethical issues associated with the practice of alternative dispute resolution;
(e) the course deals with other professional matters related to alternative dispute resolution and the relationship and application of alternative dispute resolution principles;
(f) the course deals with the application of alternative dispute resolution skills to conflicts or issues that arise in settings other than litigation, such as workplace, business, commercial transactions, securities, intergovernmental, administrative, public policy, family, guardianship and environmental, and,
(g) in the case of law school classes, in addition to the standard set forth above the class must be a regularly conducted class at a law school accredited by the American Bar Association.
(2) Credit will be denied for the following activities:
(a) Legislative, lobbying or other law-making activities.
(b) In-house program. The Commission shall not approve programs which it determines are primarily designed for the exclusive benefit of mediators employed by a private organization or mediation firm. Mediators within related companies will be considered to be employed by the same organization or law firm for purposes of this rule. However, governmental entities may sponsor programs for the exclusive benefit of their mediator employees.
(c) Programs delivered by these methods: satellite, microwave, video, computer, internet, telephone or other electronic methods. To be approved courses must provide a discussion leader or two-way communication, classroom setting away from the mediator’s offices, opportunity to ask questions, and must monitor attendance.
(d) Courses or activities completed by self-study.
(e) Programs directed to elementary, high school or college student level neutrals.
(3) Procedures for Sponsors. Any sponsor may apply to the Commission for approval of a course. The application must:
(a) be submitted to the Commission at least thirty (30) days before the first date on which the course is to be offered;
(b) contain the information required by and be in the form approved by the Commission and available upon request or at the Commission’s web site: http://www.in.gov/judiciary/cle: and
(c) be accompanied by the written course outline and brochure used to furnish information about the course to mediators.
(4) Procedure for Mediators. A mediator may apply for credit of a live course either before or after the date on which it is offered. The application must:
(a) contain the information required by and be in the form approved by the Commission and available upon request or at the Commission’s web site: http://www.in.gov/judiciary/cle;
(b) be accompanied by the written course outline and brochure used to furnish information about the course to mediators; and,
(c) be accompanied by an affidavit of the mediator attesting that the mediator attended the course together with a certification of the course Sponsor as to the mediator’s attendance. If the application for course approval is made before attendance, this affidavit and certification requirement shall be fulfilled within thirty (30) days after course attendance.
(F) Procedure for Resolving Disputes. Any person who disagrees with a decision of the Commission and is unable to resolve the disagreement informally, may petition the Commission for a resolution of the dispute. Petitions pursuant to this Section shall be considered by the Commission at its next regular meeting, provided that the petition is received by the Commission at least ten (10) business days before such meeting. The person filing the petition shall have the right to attend the Commission meeting at which the petition is considered and to present relevant evidence and arguments to the Commission. The rules of pleading and practice in civil cases shall not apply, and the proceedings shall be informal as directed by the Chair. The determination of the Commission shall be final subject to appeal directly to the Supreme Court.
(G) Confidentiality. Filings with the Commission shall be confidential. These filings shall not be disclosed except in furtherance of the duties of the Commission or upon the request, by the mediator involved, or as directed by the Supreme Court.
(H) Rules for Determining Education Completed.
(1) Formula. The number of hours of continuing mediation education completed in any course by a mediator shall be computed by:
(a) Determining the total instruction time expressed in minutes;
(b) Dividing the total instruction time by sixty (60); and
(c) Rounding the quotient up to the nearest one-tenth (1/10).
Stated in an equation the formula is:
| Total Instruction time | ||
| (in minutes) | = | Hours completed (rounded up the nearest 1/10) |
| Sixty (60) |
(2) Instruction Time Defined. Instruction time is the amount of time when a course is in session and presentations or other educational activities are in progress. Instruction time does not include time spent on:
(a) Introductory remarks;
(b) Breaks; or
(c) Business meetings
(3) A registered mediator who participates as a teacher, lecturer, panelist or author in an approved continuing mediation education course will receive credit for:
(a) Four (4) hours of approved continuing mediation education for every hour spent in presentation.
(b) One (1) hour of approved continuing mediation education for every four (4) hours of preparation time for a contributing author who does not make a presentation relating to the materials prepared.
(c) One (1) hour of approved continuing mediation education for every hour the mediator spends in attendance at sessions of a course other than those in which the mediator participates as a teacher, lecturer or panel member.
(d) Mediators will not receive credit for acting as a speaker, lecturer or panelist on a program directed to elementary, high school or college student level neutrals, or for a program that is not approved under Alternative Dispute Resolution Rule 2.5(E).
Rule 2.6. Mediation Costs
Absent an agreement by the parties, including any guardian ad litem, court appointed special advocate, or other person properly appointed by the court to represent the interests of any child involved in a domestic relations case, the court may set an hourly rate for mediation and determine the division of such costs by the parties. The costs should be predicated on the complexity of the litigation, the skill levels needed to mediate the litigation, and the litigants’ ability to pay. The mediation costs shall be paid within thirty (30) days after the close of each mediation session.
Rule 2.7. Mediation Procedure
(A) Advisement of Participants. The mediator shall:
(1) advise the parties of all persons whose presence at mediation might facilitate settlement; and
(2) in child related matters, ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children; and
(3) inform all parties that the mediator (a) is not providing legal advice, (b) does not represent either party, (c) cannot assure how the court would apply the law or rule in the parties’ case, or what the outcome of the case would be if the dispute were to go before the court, and (d) recommends that the parties seek or consult with their own legal counsel if they desire, or believe they need legal advice; and
(4) explain the difference between a mediator’s role and a lawyer’s role when a mediator knows or reasonably should know that a party does not understand the mediator’s role in the matter; and
(5) not advise any party (i) what that party should do in the specific case, or (ii) whether a party should accept an offer.
(B) Mediation Conferences.
(1) The parties and their attorneys shall be present at all mediation sessions involving domestic relations proceedings unless otherwise agreed. At the discretion of the mediator, non-parties to the dispute may also be present.
(2) All parties, attorneys with settlement authority, representatives with settlement authority, and other necessary individuals shall be present at each mediation conference to facilitate settlement of a dispute unless excused by the court.
(3) A child involved in a domestic relations proceeding, by agreement of the parties or by order of the court, may be interviewed by the mediator out of the presence of the parties or attorneys.
(4) Mediation sessions are not open to the public.
(C) Confidential Statement of Case. Each side may submit to the mediator a confidential statement of the case, not to exceed ten (10) pages, prior to a mediation conference, which shall include:
(1) the legal and factual contentions of the respective parties as to both liability and damages;
(2) the factors considered in arriving at the current settlement posture; and
(3) the status of the settlement negotiations to date.
A confidential statement of the case may be supplemented by damage brochures, videos, and other exhibits or evidence. The confidential statement of the case shall at all times be held privileged and confidential from other parties unless agreement to the contrary is provided to the mediator. In the mediation process, the mediator may meet jointly or separately with the parties and may express an evaluation of the case to one or more of the parties or their representatives. This evaluation may be expressed in the form of settlement ranges rather than exact amounts.
(D) Termination of Mediation. The mediator shall terminate mediation whenever the mediator believes that continuation of the process would harm or prejudice one or more of the parties or the children or whenever the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely. At any time after two (2) sessions have been completed, any party may terminate mediation. The mediator shall not state the reason for termination except when the termination is due to conflict of interest or bias on the part of the mediator, in which case another mediator may be assigned by the court. According to the procedures set forth herein, if the court finds after hearing that an agreement has been breached, sanctions may be imposed by the court.
(E) Report of Mediation: Status.
(1) Within ten (10) days after the mediation, the mediator shall submit to the court, without comment or recommendation, a report of mediation status. The report shall indicate that an agreement was or was not reached in whole or in part or that the mediation was extended by the parties. If the parties do not reach any agreement as to any matter as a result of the mediation, the mediator shall report the lack of any agreement to the court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.
(2) If an agreement is reached, in whole or in part, it shall be reduced to writing and signed by the parties and their counsel. In domestic relations matters, the agreement shall then be filed with the court. If the agreement is complete on all issues, a joint stipulation of disposition shall be filed with the court. In all other matters, the agreement shall be filed with the court only by agreement of the parties.
(3) In the event of any breach or failure to perform under the agreement, upon motion, and after hearing, the court may impose sanctions, including entry of judgment on the agreement.
(F) Mediator’s Preparation and Filing of Documents in Domestic Relations Cases.
At the request and with the permission of all parties in a domestic relations case, a Mediator may prepare or assist in the preparation of documents as set forth in this paragraph (F).
The Mediator shall inform an unrepresented party that he or she may have an attorney of his or her choosing (1) be present at the mediation and/or (2) review any documents prepared during the mediation. The Mediator shall also review each document drafted during mediation with any unrepresented parties. During the review the Mediator shall explain to unrepresented parties that they should not view or rely on language in documents prepared by the Mediator as legal advice. When the document(s) are finalized to the parties’ and any counsel’s satisfaction, and at the request and with the permission of all parties and any counsel, the Mediator may also tender to the court the documents listed below when the mediator’s report is filed.
The Mediator may prepare or assist in the preparation of only the following documents:
(1) A written mediated agreement reflecting the parties’ actual agreement, with or without the caption in the case and “so ordered” language for the judge presiding over the parties’ case;
(2) An order approving a mediated agreement, with the caption in the case, so long as the order is in the form of a document that has been adopted or accepted by the court in which the document is to be filed;
(3) A summary decree of dissolution, with the caption in the case, so long as the decree is in the form of a document that has been adopted or accepted by the court in which the document is to be filed and the summary decree reflects the terms of the mediated agreement;
(4) A verified waiver of final hearing, with the caption in the case, so long as the waiver is in the form of a document that has been adopted or accepted by the court in which the document is to be filed;
(5) A child support calculation, including a child support worksheet and any other required worksheets pursuant to the Indiana Child Support Guidelines or Parenting Time Guidelines, so long as the parties are in agreement on all the entries included in the calculations;
(6) An income withholding order, with the caption in the case, so long as the order is in the form of a document that has been adopted or accepted by the court in which the document is to be filed and the order reflects the terms of the mediated agreement.
Rule 2.8. Rules of Evidence
With the exception of privileged communications, the rules of evidence do not apply in mediation, but factual information having a bearing on the question of damages should be supported by documentary evidence whenever possible.
Rule 2.9. Discovery
Whenever possible, parties are encouraged to limit discovery to the development of information necessary to facilitate the mediation process. Upon stipulation by the parties or as ordered by the court, discovery may be deferred during mediation pursuant to Indiana Rules of Procedure, Trial Rule 26(C).
Rule 2.10. Sanctions
Upon motion by either party and hearing, the court may impose sanctions against any attorney, or party representative who fails to comply with these mediation rules, limited to assessment of mediation costs and/or attorney fees relevant to the process.
Rule 2.11. Confidentiality
Mediation shall be regarded as settlement negotiations as governed by Ind.Evidence Rule 408. For purposes of reference, Evid.R. 408 provides as follows:
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim, which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass alternative dispute resolution.
Mediation sessions shall be closed to all persons other than the parties of record, their legal representatives, and other invited persons.
Mediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators.
Trial Post-Mortem
If you try cases long enough, you are going to eventually lose a few. You need to look at losses as an opportunity to improve. Quite honestly you should learn more from your loses, than your victories. If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:
1. Jury Voir Dire: Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror. Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?
2. Prejudicial Evidence or Arguments: Did the other side present irrelevant evidence or improper arguments? Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument. It might also uncover problem evidence.
3. Were There Surprises: Perhaps the opposing party hit you with evidence you missed. Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case. You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions. Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition. You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover. You may want your client to give you access to their social media sites to check for potential problems. Better yet, you can educate your client early on about the importance of being completely honest with you. There are few problems that cannot be dealt with if you know about them. It’s the problems you don’t know about that can kill you. I always tell a client that: ”You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”
4. Witness Preparation: Did you adequately prepare your witnesses or client to testify. Good testimony requires that you and your client be on the same page. You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact. Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.
5. Additional Evidence: Was there a witness you needed to call? Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition. Was there an expert whose testimony might have covered a gap or question in your case? Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?
6. Jury Instructions: Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues? Don’t take the easy way out and rely simply on pattern jury instructions. Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.
7. Strategy: Was there something you could have handled better? Was there a better analogy or argument you could have used to make your point or address your weaknesses? Was your overall view of the case cohesive and persuasive. Was your order of witnesses correct? There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy. Don’t reinvent the wheel. Learn from other’s experience what works and what doesn’t. Seek out a mentor and pick their brain. See my earlier post on Fireside Reading for the Trial Attorney.
I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.
Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.
If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6). Rule of Procedure 30(b)(6) provides in pertinent part:
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions. You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning. The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.
This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company” or officer/director of a corporate organization since their statements only bind the organization if they are:
1) made within the scope of their authority and
2) the person is still employed and has a relationship with the organization.
Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:
(d) Statements which are not hearsay. A statement is not hearsay if -
* * *
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“. The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice. The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition. Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization. One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”
If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation. The burden is on the organization to properly prepare and name as many people needed to answer your questions. It is kind of like obtaining requests for admissions from your opponent on the fly. It can be very powerful tool you can use to box in your opponent.
When is an Exhibit Sticker More Than an Exhibit Sticker?
An exhibit sticker can do much more than identify an exhibit for the record. It can actually be used as an organizational tool to aid the jury in understanding what the exhibits are being used to prove, as well as, better understand your case and how it is being put together. When I was a federal prosecutor I handled a number of “complex” fraud cases and had to come up with my own system for tracking my evidence and proof for each count of the indictment and the various overt acts of the conspiracy count.
I used my indictment as a narrative tool to help the jury follow my evidence and cross-reference which exhibit helped prove which count and corresponded with the various overt acts in my conspiracy count. My conspiracy count was organized like a short story with each event (overt act) referenced on the exhibit sticker along with any separate substantive count for other the crimes separately charged.
For example, Exhibit 44 – OA (d) – CT 15 would tell the jury that the Exhibit 44 was being used to prove overt act (d) of the conspiracy count and Count 15 of the indictment. I would also annotate my copy of the indictment’s substantive counts. At the bottoms of each count on my copy of the indictment, I would list the witnesses that authenticated the exhibits, provided forensic testimony, or other supporting evidence as well as list the corresponding overt act of the conspiracy count. This allowed the jurors and court to easily follow my proof at trial. It also permitted me to easily address any motion for a directed verdict by specifically identifying the witnesses and evidence that proved each count.
By keying the overt act to the exhibit, the jury could easily move through the proof and see that I had established each count. The jurors had no trouble following my story. I numbered the exhibits in chronological order to fall in line with my overt acts. I numbered my counts chronologically as well. The jury could take the exhibits delivered to them by the bailiff which were submitted to them in numerical order and work through the indictment with little confusion. This would lead to rapid verdicts on very complicated cases. This also built up trust between the jurors and myself. They knew I cared about them and wanted to make their job as easy and efficient as possible. This system avoided confusion in the jury room. Using this numbering system with my organizational system discussed in my earlier post entitled: “How to Stay Organized During Trial” allowed me to gain control of the courtroom and the trust of the jury and judge.
One caveat, I would make sure you explain the system both in opening and closing, and ask the jurors to pay special attention. Invariably, jurors assume someone else will be taking down notes and fail to focus on your explanation. I learned this lesson the hard way when the only note taker on the jury was removed prior to deliberations and no one else had paid close attention to my explanation. The jurors sent a note to the judge asking for me to explain the numbering system again. The judge refused to honor the jurors’ request. Eventually, they figured out the system and made short work of the case.
Integrity: A Client’s Most Valuable Asset
Clients sometime forget what is their case’s greatest asset. It is not the great photos, their expert witness, or even their attorney. The greatest asset their case has is the Client’s integrity and credibility as a witness. If a claims adjuster, an insurance defense attorney or jury thinks your client is a liar why would they want to give him a dime even if he is hurt? Clients sometimes let the “dark side” enter their hearts and cloud their judgment.
In the Star War’s Movie: The Empire Strikes Back, Luke trains on a remote planet to become a Jedi Knight. His Master, Yoda, tells Luke that fear and anger will pull him to the dark side, and that there is no turning back from the dark side once he embarks on that path.
These same emotions can draw a client towards the dark side. Clients can be fearful, greedy, and angry. Instead of answering questions truthfully, they can be tempted to try and make their case better than it really is in order to get even or because they are afraid of losing. I have long told clients to avoid the temptation to try an improve on the truth by exaggerating their injuries or by lying.
“You don’t want to take a good case, try to make it into a great case, and turn it into a bad case!”
Next time, caution your client to tell the truth, the whole truth and nothing but the truth. Deceit and exaggeration are problems that are almost impossible to solve through trial advocacy. Credibility is the advocate’s most valuable currency in the marketplace of ideas.
Distraction, Misdirection and the Art of Verbal Jujitsu.
Distraction, misdirection and appeals to prejudice are common tools of the defense. Ideally, you keep these improper arguments or evidence from the jury through the use of motions in limine. However, sometimes this is impossible to do. What do you do to keep the jury from being mislead or distracted by meaningless side issues? How about a little verbal jujitsu! “Jujitsu” is the oriental “art” of manipulating the opponent’s force against himself rather than confronting it with one’s own force. You can do this by verbal jujitsu using effective analogies and counter-arguments. Below are a few of my favorites analogies and arguments. I hope they help.
STREET LIGHT ANALOGY: One dark evening a woman was on her hands and knees under a street light looking through the grass. A man walking by stops and asked what she was looking for. “The keys to my car.” replied the woman. Having some time and feeling helpful, the man joined the woman in her search for her keys. After looking for quite awhile with no success, the man asked: “We have been looking for well over 15 minutes here. Are you sure this is where you were when you lost your keys?” “Why no, I lost them a couple blocks back over there by my car” the woman explains as she gestures back towards her car. The man puzzled, asks, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responds: “Because the light’s so much better here!” That’s what’s the defense did here, even though the real issues are two blocks back…
WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts, if law is in your favor, argue law, if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch things that really have nothing to do with the case’s merit, in hopes that you’ll forget what this case is really about…
OCTOPUS ANALOGY: The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move straight ahead through the ink and you can see the truth once again. Most octopi squirt thick clouds of black ink to confuse predators. However, a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The defense took a nice simple case that is straight forward and tried to make it complicated by muddying the waters with a bunch things that really have nothing to do with the case, in hopes that you’ll forget what this case is really about…
RED HERRING ANALOGY: A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring and not that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. That’s what’s happened here…
AD HOMINEM ATTACK: An Ad Hominem attack falls into a general class of fallacies in which a claim or argument is rejected because of some irrelevant fact about the author of or the person presenting the claim or argument. The reason this sort of argument is fallacious is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made). These sort of arguments appeal to prejudice and bias in hopes that you will ignore your sworn duty as jurors. They are wrongheaded and improper. Lady justice stands there holding the scales of justice blindfolded. Lady justice does not care if we are black or white, Christian or Moslem, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluated the evidence based upon the law. The defense’s personal attacks on my client have nothing to do with this case’s merits. It is bad enough that they have shamelessly injured my client, now they want to profit from insulting and degrading him in your eyes. These attacks have no bearing on what is a fair and just outcome given the facts and the law in this case which weigh heavily in favor of my client…
One book which has a number of great counter-arguments is Closing Arguments: The Last Battle. This book is a well-organized collection of miscellaneous arguments and analogies used to explain and illustrate various legal issues and address common defense attorney arguments and tactics used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case.
Running The Back Door Play – Rule 104(a) and Preliminary Questions of Fact
In basketball, a backdoor play is when a player without the ball gets behind the defense and receives a pass for an easy score. This can be executed if the defenders are unaware of the open space behind them. There is such a play available in the courtroom the defense may be unaware of as well. Federal Rule of Evidence 104 provides an attorney with backdoor means of satisfying preliminary questions of fact needed to introduce a particular items of evidence. For example, let’s say there is a document you wish to introduced into evidence that contains an expert opinion of a witness who will not be called at the time of trial to testify. Under Rule 104(a) of the Rules of Evidence you can establish the witness’s qualifications without actually calling the witness to testify at the time of trial. This portion of the Rule provides:
“(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”
This means the court is free to suspend the Rules of Evidence in making this determination and could theoretically rely on a copy of the doctor’s curriculum vita or an affidavit of the doctors qualifications in allowing a copy of a hospital business record into evidence as this deals with whether a witness is qualified to testify.
A court could look at the substance of an alleged statement of a co-conspirator to determine if it was in furtherance of the conspiracy and would not be limited to solely independent evidence as this a preliminary question of fact the court is responsible for deciding.
A witness may be unavailable and you can only establish this through hearsay. Remember the Federal Rules of Evidence are suspend on preliminary questions of fact (i.e. foundational prerequisites)! Once you grasp this nuance in the Rules of Evidence there are a lot of preliminary issues and problems you can use this rule to solve. It can really save your bacon at trial.
