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…

27 Jul: Mediation Message No. 122

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 122 BINDING MEDIATION Binding mediation is a procedure in which a mediator, if the mediation is not successful, can become an arbitrator. It can occur in two ways: the parties select the neutral beforehand to mediate the dispute and, if the dispute is not resolved, agree that the neutral can render a final and binding award. Alternatively, the parties may choose, after the mediation process has broken down, to…

27 Jul: Mediation Message No. 121

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 121 AN UNUSUAL VARIATION ON THE JOINT CAUCUS In January 2013, I looked at the evolution of the joint caucus from when I started as a mediator to the present. (Mediation Message no. 83.) Little has changed since then; if anything, a joint caucus with all of the parties and attorneys present at the beginning of a mediation is now even more anachronistic. The one exception to not having…

27 Jul: Mediation Message No. 120

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 120 THE “EMPTY CHAIR” AND SETTLING DEFENDANTS INVOLVEMENT IN A SUBSEQUENT TRIAL Diamond v. Reshko (2015) 239 Cal.App.4th 828 advises how a trial shall be conducted where a defendant settles with the plaintiff before trial and then agrees to participate in the trial involving a co-defendant. In Diamond, Christine Diamond was injured while riding as a passenger in a taxi that was involved in a collision with a second…