Announcing a New Blog: View from the Middle of the Road: A Mediator's Prospective

Meet M. Laurie Murphy

HIGHLIGHTING THE 97% OF LITIGATORS WINNING CASES WITHOUT GOING TO TRIAL

INTRODUCING M. LAURIE MURPHY, Principal, Valensi, Rose, PLC

Jan: Laurie, give me some background about your experience.
Laurie: I’ve been a litigator with the same firm since 1989. my undergraduate degree is in civil engineering in which I also have a masters degree. Before going to law school, I was a civil engineer, but I went to law at night school a couple of years later. I have always maintained an interest in real estate and construction.

Jan: Can you give me an example of a case in which you were able to avoid a trial and still get a great result for your client?
Laurie: Yes. Recently, I represented a partner in a real estate venture where the two parties were disputing over the acquisition, construction and carrying costs of a multi-million dollar home that they were building as their primary residence. They invested in the property together after a long term romantic relationship. Unfortunately, they broke up right after the construction of the home was completed. Even more unfortunate, the original agreement between them did not include a mediation clause and in view of the huge financial stake as well as the highly emotional nature of this dispute, we couldn’t get the matter settled for quite a while.

Jan: What was the strategy you took to get the matter settled?
Laurie: I tried to get the parties to mediate before the lawsuit was filed, but the attorney for my client’s former partner refused. He filed a lawsuit instead and he was not approachable so we really didn’t talk about settlement for the rest of the time that he was representing the Plaintiff. After he was substituted out and a new attorney was brought in, we participated in a Court ordered mediation but unfortunately that failed.

The issues were complicated and although we participated in a full day private mediation before a retired Judge, both sides left disappointed because it felt like the Mediator didn’t want to “get down in the trenches” and really dig into the accounting issues as well as the legal ones. Although the mediation didn’t result in a settlement, we were able to keep the lines of communication going between counsel thereafter. He’s a reasonable guy and I’m also reasonable, so we kept talking and meeting and narrowing the issues. We had several meetings and lots of emails back and forth including getting our accounting experts involved in an effort to narrow the issues and minimize the prolonged pain of the litigation.

Following the mediation hearing, and with the court’s indulgence, we agreed to stay formal discovery and obtained stipulated continuances for both trial and motion dates. As mentioned, we met informally with the parties present as well as our experts to discuss the issues. With an attorneys fees provision, we all knew there were huge financial as well as emotional obstacles to settlement, but both sides wanted “stop the bleeding”. Their personal lives were being impacted by the time and energy as well as financial resources they were committing to resolve this dispute and it was clear that both of them wanted to move on.

Jan: How did you or your client come up with the “Winning” idea that lead to the settlement?
Laurie: There was an apparent and painful logjam between our clients and opposing counsel and I knew that both of our clients wanted help out of it. When opposing counsel and I met with our clients the last time, we came up with an idea to make a “joint counsels' proposal” (akin to a mediator’s proposal) which both of us considered to be a fair compromise. I can't recall ever having done this before, but both of us thought it might work and we felt we understood the issues better by now than the mediator had at the hearing. The issues were complicated and somewhat diverse, but instead of further polarizing the parties, counsel and I came up with a comprehensive list of terms the major one being a method to jointly market the property.

Jan: Why was it so effective?
Laurie: The initial “joint counsel proposal” ultimately lead to a meeting between the clients only. They finally had a good starting point to tweak the terms of the joint proposal until they reached an agreement on all of the various terms. When they circled back to us, we added a proposal that an arbitrator be appointed to resolve future controversies on very short notice if necessary while the parties were marketing the property. This gave both sides the comfort necessary to go forward with the deal despite the uncertainty that is ever present in real estate sales. Though there is still a fair amount of distrust between the parties, because counsel and I worked together to come up with a creative but fair proposal, the parties felt they were protected and could move forward.

Jan: What was the turning point that allowed the case to settle and avoid a trial?

Laurie: this was a case that should never have been filed in the first place but unfortunately one does not get to choose opposing counsel. And again unfortunately a lot of time and money was wasted during the time he was in the picture. But, once prior counsel substituted out and a new, more rational counsel was brought on board, after our first conversation, I knew I could develop a line of communication upon which I could build. It took several meetings and some mutual trust in one another to get to the proposal. Also, the fact that the Court was willing to continue our trial and agree with the stay of discovery really helped us focus on settling instead of posturing the case for trial. In actuality, it was very pragmatic—just unusual. Also, I have to say that our mutual disappointment with the outcome of the mediation lead us to thinking about creative ways that we could step in as counsel to mediate the dispute in some workable way. I really didn’t know if it would be accepted by the clients, but they did agree to our proposal ultimately.

Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?

Laurie: Listen, my client is a wealthy individual who does not litigate for a living who has plenty of other businesses, hobbies and interests and who was anxious to get on with life.
Jan: Laurie: You are litigating like crazy. What to you do for fun?
Laurie: I'm a horse fanatic. I have two dressage horses. I take lessons on them every weekend and compete from time to time.

Introducing Karina Sterman

As a part of the 97% Series of Interviews, I loved this one: Read on about Karina Sterman's classic move towards a sophisticated business dispute: can you say "lunch"?

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 explores 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 KARINA STERMAN, PARTNER, ERVIN COHEN & JESSUP LLP:

Jan: Karina, how long have you been practicing litigation in Los Angeles?

Karina: Since 1997. I started my career in Securities Litigation, but joined Ervin Cohen as an associate in 2000.

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?

Karina: The most notable is usually the most current. I was the lead counsel on a complicated Intellectual Property case recently, which involved about eight defendants. We were all ordered to a “mandatory mediation” in the beginning of the case but that simply led to a cycle of posturing and each side assuring the other that it was going to prevail. The case had millions of dollars at stake and we left that 1/2-day session further apart in terms of settlement and even more eager to go to trial and win!

Jan: What was the strategy you took to get the matter settled?

Karina: After the initial mediation session, the litigation got really heated. There were numerous depositions, volumes of written documents exchanged, third party subpoenas, the works! At a pivotal moment in all of this, my client realized he just wanted to go back to running his business and finally said to me: “Settle this.” That’s what I was waiting to hear. I immediately called the opposing counsel and told him his clients could either deal with a forthcoming motion for summary judgment or consider coming back to settlement discussions. He informed me then that, unbeknownst to me, our clients had been attempting to discuss settlement throughout the litigation process but had only managed to further polarize each other and completely eradicate any trust between them as a result of increasingly mounting acrimony and bravado. When I heard this, I knew I had to try something different. Before we could even begin to have settlement discussions, we needed to rebuild trust and communication. So, I decided we should all meet in a neutral place and on a purely social basis. I knew these guys had worked together for 11 years. They knew one another’s families and certainly could have a conversation about something other than the lawsuit. So I invited the other side to lunch.

Jan: How did you come up with the idea?

Karina: I try to think creatively and remember that every lawsuit is not just about the dispute but often also about perspectives and emotions. I feel strongly that people in dispute, whether they are my clients or are suing my clients, deserve to have dignity brought back into the process. If you treat people with dignity, and allow them to keep their pride intact, even if you disagree, you are more likely to reach a resolution. I also know that most cases end up settling, so I felt strongly that we needed to preserve that bridge and if the clients had already damaged it, we needed to restore some trust before we could resume any discussion of settling the case.

Jan: Why was it so effective?

Karina: As part of my invitation to lunch, I let the other side pick the location and I assured everyone that I was buying! I also created a set of written “ground rules” that both sides had to agree to as a condition to this lunch. I got input on those from opposing counsel and then we circulated them to our clients and received their commitment to stick with those rules. For example, the rules indicated that there be no posturing, no talking about the merits of the case, no threats. I was told that the only reason the opposing party agreed to attend is that I was going to be there; I learned that they felt I was the only “civilized” attorney at the table.

Jan: What was the turning point that allowed the case to settle and avoid a trial?

Karina: My client thought the lunch was nice but was cynical by this point in the case and they didn’t think it would lead to any progress. I completely disagreed. Thankfully, very soon after the lunch, I received a gracious thank you note from opposing counsel and then an actual settlement demand. Though we were still far apart, this allowed us to begin negotiations and maintain a constructive dialogue. We reached a settlement within the next two weeks. Before that lunch, this was not in the realm of possibility.

Jan: Did you or your clients have any regrets?

Karina: Absolutely not. Although, I do love to try cases—so there is always a little personal disappointment when another case clears off my desk. But that’s the way it should be.

Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?

Karina: Yes! There is always an “aha” moment in a litigation. (Karina gives me a mischievous wink and reminds me that the details are confidential as the case is still on going with the other defendants).

Jan: Do you think that being a woman made a difference to how this case was handled?

Karina: I don’t know, but several people involved in the case, both on our side and on the opposing side, pointed out that I was the only woman in the litigation and that it helped. I’d like to think that it had something to do with the success at the end of the day.

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.