DEMONSTRATIVE EVIDENCE No experienced lawyer would go to trial without demonstrative evidence or illustrative aids that effectively emphasize the critical factual or legal parts of his/her case. Such evidence can clarify or amplify the testimony of witnesses, make abstract concepts real and more vivid and make a case look stronger than it might really be. It is for those same reasons that demonstrative evidence should be used at mediations. Whether the matter involve a business…
JURY INSTRUCTIONS While sound preparation by plaintiffs and defense lawyers for mediation, motions and trial has always included a review of the BAJI instructions for the elements of the causes of action to be litigated, the creation of the new Judicial Council of California Civil Jury Instructions (CACI) makes that review even more critical. These new instructions, which are not copyrighted, can be accessed on both LexisNexis and Westlaw, although the LexisNexis site is much…
APPEARANCES AT MEDIATIONS Although the law is clear, at least as far as court-ordered mediations are concerned, that all counsel and parties (including insurance representatives) shall attend the mediation (see below, occasional non-compliance with this requirement can impede settlement. It is therefore advisable when a necessary person to the mediation cannot be present because of employment, family or geographical circumstances, that counsel for that party or entity advise the mediator of the absence and ask…
RECOVERY OF MEDIATION COSTS If a case does not settle at court-ordered mediation, a party may be awarded its mediation costs, including the fees paid to consultants and retained experts, if they were “reasonably related to the conduct of the litigation,” as required by Code of Civil Procedure section 1033.5, subdivision (c)(2). (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202). In that personal injury action, the defendants refused to settle at a court-ordered mediation and thereafter…
BODY LANGUAGE Kinesics, the science of body language, provides evidence about how the human mind processes information. It is very useful at trial where the physical cues of the prospective jurors, witnesses and judge might indicate how each is responding to you, your opponent and the facts at hand, especially when that person’s verbal responses are inconsistent with what his/her body is saying. As an example, during voir dire, a juror might answer that she…
AGGREGATE SETTLEMENTS An attorney who represents more than one party (plaintiffs or defendants) in the same action must not only be certain that he/she has advised those multiple clients in writing of any potential or actual conflict that exists between them and then have these clients waive that conflict in writing (Rule of Professional Conduct 3-310(C) but also, when later resolving that same case, “not enter into an aggregate settlement of the claims of or…
OPENING STATEMENT V. PRELIMINARY REMARKS After the mediator’s introductory comments at the beginning of a mediation, counsel are given the opportunity to make an opening statement. Because the purpose and method of this presentation are both similar to and dissimilar from an opening statement at trial, I prefer to call them preliminary remarks. An opening statement at trial is supposedly not for argument; instead, it is the time for counsel to tell the judge or…
THE MEDIATION BRIEF A mediation brief should be prepared with the same care as any Superior Court motion because the mediator, while not having the capacity to issue final orders, can nevertheless be very influential. Therefore • Indicate whether or not the brief is confidential; • Provide important case status information on the first page (e.g., the trial date, the results or future date of any summary judgment motion, the status of pending discovery, etc.);…
CLIENT PREPARATION Intensive client preparation for mediation is frequently overlooked. While attorneys would not bring a client to a deposition or trial without going through the possible subject matter, questions and exhibits to be covered as well as discussing how to answer questions, the tactics and methods of opposing counsel and the policies of the trial judge, there seems to be a more relaxed attitude toward client preparation when mediation is concerned. Although mediation is…