Jan Schau Lawyer in Los Angeles, Alternative Dispute Resolution Attorney CA : Super Lawyers

Jan Schau Lawyer in Los Angeles, Alternative Dispute Resolution Attorney CA : Super Lawyers

Introducing The 97% Series

It occurs to me that since 97% of cases filed never get to trial, there are lots of brilliant trial lawyers and litigators who must have "seen the light" and found ways to resolve their cases and still make headline news. Why? Because that's what clients want their lawyers to do! This year, I will be writing a regular monthly interview of a dozen of these local heroes for the Women Lawyers of Los Angeles Newsletter. Here is the first of the series:

HIGHLIGHTING THE 97%:LITIGATORS WINNING CASES WITHOUT GOING TO WAR

After 20 years of practicing litigation and ten years as a mediator, I have reached the conclusion that most clients come to their lawyers not to “win a case” but to resolve some conflict they are experiencing, or to right some wrong that has occurred in the most efficient way possible. As my late friend and mentor, Richard Millen, was fond of saying, “People don’t come to their lawyers with legal problems, they come to lawyers with human problems. Lawyers make them into legal problems by fitting them into a particular cause of action or set of legal defenses.”

The most recent statistics available indicate that 97% of cases that are filed in Superior Court never get to trial. How do they get resolved? This column will explore the unique and intuitive ways in which a dozen prominent women litigators have made that happen. The reader may judge for him/herself whether the gender of the handling attorney in any way contributed to the outcome, but my hypothesis is that with so many prominent women in litigation in 2012, there’s a different, perhaps more pragmatic and some may say even “gracious” way of waging war today.

Here you will find some of the most fascinating “war stories” uniquely told by select women who have demonstrated both bravery and sensitivity in addressing their clients needs and desires.

MEET ROBYN CROWTHER, Shareholder, Caldwell, Leslie and Proctor

Jan: Robyn, how long have you been practicing litigation in Los Angeles?
Robyn: Since 1997. I practiced with Gibson, Dunn for a year and then took my position at Caldwell, Leslie. I was made a shareholder just after I delivered my first (of 3) daughters.

Jan: What was the most notable case in which you were able to avoid a trial and still get a great result for your client?
Robyn: I represented Obey Clothing in litigation with the Associated Press. It was a part of the larger dispute between Shepard Fairey and the Associated Press about copyright infringement during the Obama campaign. AP sued Shepard Fairey, the graphic artist and my client, Obey Clothing for copyright infringement, claiming that the artist used a photo of Obama owned by AP, earning multi-million dollars on the image.

Jan: What was the strategy you took to get the matter settled?
Robyn: A little background. The Associated Press sued Shepard Fairey initially and only brought in Obey Clothing, the exclusive licensee of Shepard Fairey about eight months after they brought the initial action. From the outset, our clients took our advice and aggressively litigated the case pre-trial in order to set it up for a Summary Judgment motion. We had a joint defense agreement with the artist, and were planning to join in a Motion for Summary Judgment, which was due on January 6, 2010. On January 2, 2010, we were notified that Shepard Fairey had reached a settlement agreement with the Plaintiff. We had to work round the clock in a team of 3 or 4 lawyers to get our motion filed in time. The motion was heard in New York and the District Court Judge denied both parties motions on copyright infringement, but granted the AP’s Summary Judgment on Fair Use. It was after that ruling that I reached out to opposing counsel and called her to suggest it might be a good time to discuss settlement rather than challenge that ruling on appeal.

Jan: How did you or your client come up with the idea?
Robyn: I really understood the dynamics between my client and it’s insurer by then, so I came up with the concept, but it took many, many calls and emails before we arrived at a settlement.

Jan: Why was it so effective?
Robyn: I leveraged the opposing party’s win on the Fair Practices Act as a way to suggest that the settlement would benefit them because it would avoid the potential of an appeal and reversal, which may have had much further impact on the Company than this verdict if it didn’t go their way.

Jan: What was the turning point that allowed the case to settle and avoid a trial?
Robyn: Although we were talking with opposing counsel every day in preparation for the pre-trial conferences, (we had even moved to New York for the trial by then), ultimately both parties seemed to recognize that the potential losses from going to trial were too great. For the AP, that was really a function of the possible appeal and reversal.

Jan: Did you or your clients have any regrets?
Robyn: My clients were very pleased. Of course, it was probably the most fascinating piece of litigation I may ever participate in, so I would have loved to at least put on my opening statement!

Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?
Robyn: Yes. Although the terms of the settlement are confidential, the parties issued a joint press release indicating that they were planning to collaborate on future projects, which, of course, may be of enormous financial value to all parties.

Jan: Do you think that being a woman made a difference to how this case was handled?
Robyn: Once Shepard Fairey settled out, all of the lead counsel on both sides were women. I think that allowed us to dispense with some of the posturing we see and cut to the chase.

Thinking about the Future of Mediation

I participated in an excellent conference yesterday for the Southern California Mediation Association, "Expanding Horizons, Expanding Opportunities" during which Keynote Speaker, Woody Mosten invited us to consider the state of mediation in 2030. It was an exciting dialogue with ideas ranging from a "Public Mediator" corps, similar to the Public Defender's office to an emergency line, where the first call in case of conflict would be to a local mediator. I was also made to consider that the "Elders" of the future will be those who fought for civil rights in the 60's and may well entertain engaging in more inclusive, collaborative processes than the elders of the last generation. Catching up with lots of colleagues and friends at a spectacular setting out in Malibu made for an invigorating, motivating day. Kudos to SCMA and all of the presenters and planners for an exceptional professional conference. P.S.: If you missed my presentation on Mediation, Ethics, Neutrality and Confidentiality, which I renamed "Dirty Little Secrets", send me an email and I'll fill you in.

The Mediator as "Silent Partner"

There's been chatter lately on a variety of List serve Discussion Groups about how Mediator's can break an impasse and I have to say, I often follow my cases, sometimes daily until that log jam is broken and the case is settled. But I'm left sometimes feeling like I'm too much in the spotlight when I should be behind the camera recording the "scene" instead. For example, in several cases lately I've been asked my opinion about the following strategies while settlement negotiations are pending: how to answer discovery and when to propound it, whether to consult with bankruptcy counsel and when, whether to communicate a particular offer or rejection of a particular demand to the client now or later. Yikes! Although I enjoy the power and the challenge, I'm left questioning whether I'm becoming the Silent Partner for the inquiring counsel and whether that compromises my neutrality and impartiality in getting the matter resolved. Have we evolved to a place where we do whatever it takes to get a matter settled? Is this added value to my (lawyer) clients? Interesting queries without obvious answers.

Leaning In to Conflict

Last evening we spent a magical evening in my sister's Sukkah. This week marks the Jewish harvest festival where it is tradition to share our joy and bounty by inviting strangers to dine with us in impermanent tents or booths, which are decorated with fruits and vines from the season's bounty. Because the tradition is that only one wall may be used, it is often necessary to lean in to engage one another in conversation. It occurs to me that the same is true in mediation. There, the physical "leaning in" can have several beneficial effects. First, by leaning in, you can gently push up against and ultimately penetrate those fictitious walls that have been erected around the person in conflict, literally, breaking down barriers which may have caused or contributed to the conflict at the beginning. Second, you model a sense of equality, rather than authority. For example, an employer may choose to stand, or push his chair back from his desk when confronting an employee, and a Judge usually sits on a podium, elevated from those whom he or she is "Judging". Third, by sitting across from the disputant, you can echo and demonstrate your empathy in your face and body language, so that they can feel truly heard and understood. The result can be magical, just like dining in my sister's Sukkah.

Leading from the Back of the Room

I've taken a few months off from blogging during which I fear I may have become complacent with my own techniques and absorbed in a sense of competence in my mediation efforts. Then today I read about a Business leader who spoke of "leading from the back of the room" and I was struck by the notion that I had risen to the position of leadership where I take a seat which is not rightfully my own. That is an important reminder that I thought I would share. Though mediators may think we know the best way to resolve a particular dispute, leading from the front of the room can be so dangerous. Because at the end of the day, if the parties haven't come to the terms on their own, by their own volition, it may feel forced even though successful. That result is what we expect from the Court. A judge or jury may superimpose their decisions upon the parties. But mediation is supposed to be different. A reminder to lead from the back of the room--instead of the podium where the Judge sits, was really a great message for me.

What It's Ultimately All About

Once in awhile, we all need to take a break from our day jobs to tend to our life's real work. For me, last week's Commencement from Columbia University, and this euphoric image of our youngest son becoming a College Graduate have fulfilled my life's true purpose. The insight for mediation and client's of mediation? Have some perspective. Most of the time the business disputes and litigation we're engaged in pales by comparison to what's really important in life: the health, success and dreams of our children. The Commencement speaker, President Bollinger, spoke of "The Butterfly Effect" and how butterflies flapping their wings independently can affect the environment worldwide. These young graduates, acting in their own communities, countries, businesses and professions, will undoubtedly change the world in which all of us live. I'm proud to have raised three responsible, college educated, decent, smart adults. I'm trusting them to make my world a better place. Judging from the past 27 years, I have complete faith and confidence that they'll do a great job at it!