Wednesday, October 03, 2012

So tired of unreasonable people

It's bad enough to have a law practice dwindle away to almost nothing without having the few cases that remain involve really, truly unreasonable people.

You will understand that, even on an anonymous blog, I can go into no details that might disclose any confidences -- so my kvetching must be even more vague than usual.

But the two most prominent examples that come to mind at the moment involve mediation. They are different types of cases and I am representing the plaintiff in one and a defendant in the other. But, in the former, the defendant does not want to mediate and, in the latter, it is a co-defendant.

The real dispute in the case where I'm appearing for one of the defendants is with another defendant. In that case we've been ordered to submit the case for mediation -- and the co-defendant still throws up every obstacle that can be invented to avoid the inevitable. Here is a case where my client has tried to give away the money that is the ostensible object of the suit, just be rid of the co-defendant. But this suit isn't really about money, it's about the co-defendant wanting to continue to have some control over my defendant's activities in a given area. My client has tried to negotiate directly with the co-defendant -- it's my client's right, but it's against my advice -- because my client can't believe the co-defendant can be this unreasonable.

But my client is wrong.

With all the decision makers in one room, a skilled mediator might be able to make them understand the hopelessness of their position and be reasonable for just long enough to sign a settlement agreement. (I have no illusions that the rationality would last the night following, but, armed with a mediation agreement, my client's nightmare would be nearly over.) Otherwise, my client will have to realize that this case will not go away without my spending the time and money necessary to get this case resolved in court. My client has an excellent chance of winning -- but my client is unsure whether the emotional price is worth it (much less the cost in fees) and that's why I've so vigorously championed mediation. My client wants to settle this matter peaceably. If mediation does not make the other side temporarily reasonable, it should make my client understand and accept that there can be no peace with the co-defendant.

It takes two willing partners to make peace, but only one unreasoning jerk to force war on the most reasonable person around. When war is forced upon you, your duty is to make it as swift and terrible and final as possible. This is a lesson that my client has to learn.

In this first case, the co-defendant doesn't want to mediate (the co-defendant does not wish to be reasonable) or litigate (I believe the co-defendant calculates that it will most likely lose if it comes down to litigation). Instead, the co-defendant believes that, if only enough time passes, the co-defendant may again seize control of my client. It shouldn't happen, but it might.

Well, Curmudgeon, you might say -- why is the co-defendant's stalling strategy unreasonable? You agree it might work.

Well, maybe in this case, 'unreasonable' is not the best word. 'Dishonest' might be a better one, because the co-defendant is not participating in the case in good faith and not negotiating with my client in good faith.

But, even after thinking about it, 'unreasonable' is the best word to describe the other side in the second case I've alluded to so generally.

It's a tort case. My client's medical specials exceed the defendant's policy limit. Liability is not 100% clear -- whatever you may see on television, such cases are rare as hen's teeth -- but the physical facts are in our favor. But the defense has a legal defense -- an issue that the courts can decide as a matter of law -- and, of course, the defense has raised this issue with the court.

And lost. My co-counsel and I turned back the defendant's summary judgment motion over a year ago.

Is it a close case?


Could the eventual trial judge see things differently?

Yes. The legal defense that was raised in the summary judgment motion can be reframed as a question of the admissibility of certain evidence, vital to our ability to put in a prima facie case.

Could a jury go against us?

Of course. In my experience, juries take their responsibilities seriously and try their darndest to resolve the case before them on the facts they've heard from the witness chair and on the instructions provided by the judge. If we get our evidence in, we should get a verdict, and probably one substantially in excess of the defendant's insurance policy. We have taken certain steps to potentially open up the defendant's insurer to liability for any excess verdict. But juries can, and sometimes do, strange and unpredictable things. Theirs is not a mechanical process. They may not like the plaintiff. They may feel sympathy toward the defendant. They may like the defendant's attorney better. They may not -- despite their honest collective effort -- understand the court's instructions.

Even if we win at trial, could the Appellate Court see things differently than the judge who denied the summary judgment motion last year?

Yes. Appellate courts are far less likely to overturn jury verdicts -- but they can and often do say that a case should never have reached the jury because of an error of law made by the judge. Legal questions are -- generally -- subject to de novo review in a reviewing court. The court can not readily substitute its conclusions with regard to the witness testimony for those reached by a jury, but they can and do second guess the legal decisions of their brother or sister trial court judges.

So if there is a path to victory for the defense in your second case, Curmudgeon, why do you think the defense is unreasonable for failing to mediate?

Well, there are other factors, too unique to my case, that I am not at liberty to share. Some of these are strongly in our favor. But even from this general, vague outline you can see that the only winner if this case goes through appeal will be defense counsel. The insurance company may not pay out its policy limit for a verdict or as a settlement, but what good does it do the insurer, really, if it spends as much or more to achieve that result?

Lord knows, I don't want to sound like one of those University of Chicago-types on the Seventh Circuit, but there is an economic component to litigation that reasonable people should take into account.

Look at it this way: We're asking for mediation. What does that mean? It means that we're not wedded to getting a judgment in excess of the policy limit. It means that, despite the amount of the specials, maybe there's a way in which our client can live with a settlement for less than the policy limit.

It's an algebra problem. If we go to mediation there is some number, x, which will settle the case. By asking for mediation, we are at least acknowledging the possibility that x may be less than z, where z is defined as the policy limit. If we go to trial, there is a cost to the defendant's insurer, which we'll call y. The value of y depends on when, if ever, defendant sells a court, trial or appellate, on its legal defense. At least potentially, then, y > z and both are potentially greater than x. The reasonable insurer should want to mediate under these circumstances, even if only for the same reason that I want my client to mediate in the first case: To find out whether a reasonable settlement can be reached or whether scorched earth is the only option.

But even publicly traded insurance companies don't always act reasonably.

Which brings up another case where an insurer that didn't actively participate in a coverage suit that was resolved along with an underlying tort case (by mediation) but nevertheless pitched in $10,000 toward a much larger settlement. It decided it needed separate counsel after the fact -- and has probably spent more than $10,000 in fees interfering with the orderly wrapping-up of the case (by reopening the negotiation of the wording of the releases in the two settled cases). But I can't talk about that case. I think we've finally agreed on the shape of the table where the conference can take place.... Then again, I haven't checked my email in the past hour....

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