• Cases in general
  • Leveling off of cases arising out of aggressive expansion
    • Unfair competition
    • Intellectual property
  • More cases caused by hard times
    • Protection of assets
    • Breach of contract
    • Bankruptcy (especially Chapter 11)
    • Lien disputes
• Securities Arbitration.
  • There are many more cases coming in the door, but not necessarily many more cases being filed
  • Why did an account go septic?
    • The difficulties of case evaluation when the whole market has “gone to hell in a handbasket.”
• Disputes among competitors
  • Everybody wants somebody to blame when deals go bad - but few can afford an hourly fee
• Construction cases
  • More cases involving contractors going under
    • Mechanics liens
    • Uncompleted projects
    • More cases where contractors are milking their contracts
      • Unnecessary additional work
      • Misapplying construction draws
    • More cases where owners are trying to squeeze contractors
      • Becoming more technical about contract requirements
      • Complaining more about results to cram down bills
• Employment law
  • With a vastly larger number of layoffs there are many more people looking for ways to either block their dismissal, improve their severance packages or seek damages for contractual or statutory violations
  • Employers are more tempted to walk into forbidden areas to save money
    • E.g., laying off older, more expensive employees
    • With a bad economy, it is harder to evaluate employer motivation
• Reading the tea leafs - Trying to interpret the signals coming from the other side
  • Some of the messages are, or seem, different
  • Especially those which are unrelated to case evaluation
    • Money is tight
    • Are the old assumptions still valid?

• Range of economic value drives decisions about the approach to be taken
  • Contingent fee vs/ hourly fee
  • If too small for contingent, does it make economic sense for the client to do it on an hourly basis?
  • If hourly, can the client afford to bring the case?
    • Considerations:
      • Scope of discovery and other preparation
      • The need for client assistance in order to economize
      • Expert witnesses
      • Experts to assist in discovery and fact analysis (e.g., electronic discovery, appraisers, economists and forensic CPAs, industry experts)
      • Cost of Discovery
      • Travel and other expenses
  • Other fee options:
    • Split hourly and contingency
    • Reduced hourly rate with a results bonus
    • Extended payment
    • Advancing/paying costs for the client
• Strength of the case
  • Almost all cases look good at first
    • Parties to litigation have selective memories
  • May not know how good a case really is until weeks or months into the case
  • Initial investigation is critical
  • Continual re-evaluation is critical
  • Thorough research:
    • Of all pertinent documents that can be obtained
    • Of the dynamics of the subject industry
    • Of the background of the potential defendant(s)
    • Of the products/processes as well as the relevant industry or professional standards
    • Of the relevant law

• The interest of both sides in an early exchange of information (junk yard dogs stay chained up next to junk all their lives)
  • Avoidance of weak cases
  • Early understanding of potential risks and rewards
  • Potential for effective, early mediation
  • Potential savings of litigation costs - even if the case does not settle
  • Potential for creative problem solving - the most overlooked area in commercial litigation

• Shotgun or arrow
  • You have to eat what you put on your plate
  • Economic considerations
  • Decisional paralysis

• The defendant’s playground #1
  • Stealing the march
  • Testing the plaintiff’s resolve to go on with litigation
• Narrowing the issues
• Taking the temperature of the Court

• On both sides, be careful what you wish for - you might just get it
• Know why you are asking for what you are asking
• The defendant’s playground #2
  • Testing the plaintiff’s resolve to go on with litigation
  • Button, button, who’s got the button?
• The temptation for the plaintiff to get bogged down in too much information looking for the Holy Grail
• The plaintiff’s use of sluggish and evasive defense responses to affect the attitude of the Court

• Advantages
  • Potentially makes litigation more affordable for both parties
  • 85-90% success rate
  • Takes the decision out of the hands of strangers
  • Creates certainty
  • Offers the opportunity for solutions a court cannot offer
    • Examples
  • Offers confidentiality of the entire process and the result
• Techniques
  • Preparation of the client
    • Case evaluation
      • Managing expectations
      • Don’t rush to the bottom line
  • Preparation of the mediator
    • Don’t give up the opportunity to affect the mediator’s view of the case
      • The mediator is not a decision maker but he/she is a powerful influence on the decisions that must be made
    • Don’t overwhelm the mediator with garbage
      • Copies of relevant pleadings and briefs
      • Pre-mediation statement
      • Confidential or not?
  • Do not give up the right to make an opening statement
    • Opportunity to let the other side hear what your case will sound like to a court or jury
    • Opportunity to hear what the other side’s case will sound like
    • It’s all about risk/opportunity assessment
    • Be visual - a picture really is worth a thousand words
      • Power Point
      • Graphics
      • Handouts
    • Let the parties speak
  • The dance
    • Be prepared to be insulted by the other side’s first offer
    • Why we never seem to be able to cut to the chase quickly
    • Send the clearest signals possible
    • Patience
  • Never, never, never walk away from the negotiating table
    • Even if you think you have reached the end of your willingness to bend
    • Even if everyone leaves without a settlement, let the other side know the door is still open
    • Like the lottery, “you can’t win if you don’t play”
    • Follow up later
  • At the very least you will have had a rehearsal and will have learned useful information about the other side’s case
• Finally, a pitch for collegiality and professionalism

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Copyright @ 2010 MichieHamlett