The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation
Our profession is talking to us. The landscape is changing, and some are fighting it.
What do I mean? I mean how we are going about doing our jobs. It is time to be strong and take down those who are opposing the new way of handling litigation. It is cooperation, not fisticuffs. It is creating a positive track to resolution, not being the impediment to settlement. It is allowing the parties to get what they need to evaluate their case, and then mediating or negotiating to try to resolve a dispute.
Is there such a thing as “smart” dispute resolution? You betcha there is! And here is why.
What is the goal in representing a client in a dispute: resolution of course, but the path towards the agreed upon end result is the issue. How do we – or did we – get there, and when we did, was the end result acceptable? Was value received in the sense that the cost of proceeding down the path and the ultimate result done efficiently and effectively?
The key to “smart” dispute resolution, in my view, is proper litigation management. I define it as: The effective planning, organization, delegation and supervision of litigated matters so as to gain the advantage crucial to achieving an acceptable and timely resolution of the dispute.
That is, make a plan. As a sometime expert witness in various aspects of civil litigation and insurance claims handling, I see cases run amuck with no real planning or oversight. It is reaction not action that takes place. There is no goal setting, no timeline, not thought given to how to obtain the critical information about the facts in the case. And often the law is not carefully researched to applied to the facts at hand.
So, what constitutes “smart” dispute resolution? Good question, so now let’s address the answer.
First, what about that plan? This is simple but essential. You go over the case and get the facts down and analyze what you know based on the legal rules. Force yourself to put everything available together in an outline and get a sense of what the case is about, what problems or issues present themselves, and what are the client’s needs. Then communicate this to the client so the client is aware of the merits of the case and what needs to be done to get resolution.
Second, evaluate what needs to be done in the discovery process to get you to a point of being able to sense the end result if the case is tried. Here, my San Francisco Bar colleague, Michael Carborne, a full-time mediator, comes to my rescue. He calls this “good discovery” or “that which is used for the intended purpose and that leads to a fair settlement. “Bad discover is that which is used with the ulterior motive of wearing the other side down, hopefully forcing them to spend huge amounts of money or to capitulate to the settlement that the bad discover wants.” (Resolving It, Vol. 3, Issue No. 10, October 2012.)
I have described the process of properly timed discovery as progressing to a “plateau” at which point enough has been done to be able to a) evaluate the case, b) see what needs to be done, c) look at the costs of further proceeding, and d) evaluate the possible outcomes, so that a cost/benefit and risk/reward analysis can be done.
The economics of litigation do not favor a protracted dispute, as legitimate as it may be. Ask yourself: can my client and I afford to continue the battle when a compromise is the most practical and economic course?
Good Mediating. . .
Guy Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbinson, LLP, with offices in San Francisco and Santa Rosa, California. He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys. Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow. He is also a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury). He has been named a Super Lawyer each year since 2006. He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Third Edition released for 2015-16. See also the review of his book HERE. He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure. His firm’s website is www.kcehlaw.com.