18 Aug: Mediation Message No. 132

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 132 NEGOTIATION PHASES OR PROCESSES AT MEDIATION The types of negotiation tools used at mediations go through stages. This Mediation Message examines each of those processes in the order that they usually occur. Distributive or marketplace bargaining – In most instances, mediations start with distributive or marketplace bargaining, in other words, the parties exchange single numbers, a process very similar to how people buy houses and cars. Generally, the…

18 Aug: Mediation Message No. 131

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 131 BASIC INTRODUCTORY REMARKS AT MEDIATION If a plaintiff, defendant or representative of either is unfamiliar with the mediation process, I begin their separate caucus by talking about confidentiality, my neutrality and the uncertainty and expense of litigation. These introductory comments are intended to put them at ease and serve as a bridge to the more critical discussions about the cases, themselves. The comments are, as follows: Mediation confidentiality…

18 Aug: Mediation Message No. 130

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 130 EXPERT WITNESS DECLARATIONS AND MOTIONS FOR SUMMARY JUDGMENT Perry v. Bakewell Hawthorne, LLC (Cal. Supreme Court Feb. 2017) no. S233096, 2017 Cal. LEXIS 1351 holds that the exclusionary rule for expert witness declarations that do not meet disclosure requirements applies to summary judgment as well as the trial phase. The case is also a valuable reminder about the importance of admissible evidence at MSJs and the remedies available…

18 Aug: Mediation Message No. 129

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO.  129 THE ATTORNEY-CLIENT PRIVILEGE IS NOW DIMINISHED The simple question in Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282 (L.A. County) is whether invoices by an outside law firm to a governmental agency are covered by the attorney-client privilege and, therefore, exempt from disclosure under the California Public Records Act (PRA). L.A. County’s supposedly narrow holding that the privilege may not extend to such…

18 Dec: Mediation Message No. 128

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO.  128 SEVENTH ANNUAL YEAR-END REVIEW This year’s Mediation Messages and Arbitration Insight combine observations about mediation, procedural law that impacts litigation or settlement, expert testimony, rules of evidence at arbitration and trial tactics. Refer to the Mediation Messages identified below on my website (www.marcusmediation.com) if the following summaries are not sufficient. MEDIATION The parties only caucus (April – Mediation Message no. 121): This is a process in which no…

18 Dec: Mediation Message No. 127

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 127 THE MEDIATOR’S PROPOSAL, PART III This Mediation Message is called “The Mediator’s Proposal, Part III” because I’ve written about the process twice before (Messages 51 and 81), but it’s very much worth a third visit because mediator’s proposals, in the intervening period, have become the most effective method of settling cases. What is a mediator’s proposal? Most often, it is a proposal by a mediator to settle litigation…

18 Dec: Mediation Message No. 126

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO.  126 EXCHANGE MEDIATION BRIEFS There are no compelling reasons for opposing counsel not to exchange mediation briefs. (Okay, there might be one, and I’ll get to that shortly.) Because most attorneys don’t share their mediation papers with the other side and, with the demise of the joint caucus at mediation, unless the mediation takes place after substantial discovery has commenced, the parties don’t know their opponents’ factual and legal…

18 Dec: Mediation Message No. 125

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 125 RFAs – IMPORTANT PROCEDURAL REQUIREMENTS Having discussed in Mediation Message no. 123 (June 2016) the monetary consequence of failing to admit certain facts prior to trial despite their obvious truth, it’s timely to look at some of the other significant procedural requirements concerning requests for admission (RFAs). The policy behind RFAs. Unlike the other types of discovery, which are designed to prepare for trial, an RFA, in contrast,…

18 Dec: Mediation Message No. 124

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 124 EXPERT TESTIMONY AND THE HEARSAY RULE: GENERALIZED BACKGROUND INFORMATION VERSUS CASE-SPECIFIC FACTS In People v. Sanchez (2016) 63 Cal.4th 665, a unanimous Supreme Court clarified what information and facts experts rely upon are and are not subject to a hearsay objection. Sanchez holds the hearsay rule applies to case-specific out-of-court statements considered by experts as true and accurate and relied upon to support their opinions, because such statements…

27 Jul: Mediation Message No. 123

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 123 DENIALS OF RFAs AND THEIR CONSEQUENCES Denial of a request for admission (RFA) can lead to an award of costs and attorney’s fees incurred by the propounding party in proving those facts if that party proves the truth of the facts at trial. (C.C.P. sec 2033.420, subd. (a).) The court is required to award those costs and fees unless it finds the party who denied the requests “had…