NOEL/NEWTOWN
December 21, 2012 § Leave a comment
PRAYER IN FOUR VERSES
1.
The Lord has shown me
His hands held out together,
His empty hands.
There falls only my sorrow
Upon his palms like snow.
Now, Lord, your hands are full
Like snow-laden boughs of an evergreen.
2.
I have nothing, Lord.
Fill me with the lonely emptiness
From which everything is drained,
Until I am like an empty vase
Left at random on a table.
3.
Something I feel
Of sorrow and ecstasy
Fretting to an irritation.
A moonlight edge of hill,
Ever swept by the wind,
Which I call life.
The whole universe
Glowing white with moonbeams.
4.
A thin thirst is spread in me
Like the violet twilight over a December field.
Crossing over the chilled waters of half-mockery and half-regret,
I proceed toward you, Lord.
Drench my cheeks with hot tears
And drown me in your mercy.
— Park Mok-wol (1916-1978)
MORE WARNERISMS
December 20, 2012 § 2 Comments
In my prior post on former Chancellor George Warner, I focused on some of his more humorous rulings. But there was sagacity in his rulings, too. Here are a few excerpts his opinions that show his shrewd understanding of the law, as well as the trial court’s and lawyers’ role in enforcing its rule. These are from opinions published in Judge Warner’s book, Through the Eyes of a Judge …
From a 1987 opinion in which he distills the purpose of a court of equity …
That there is no existing case means nothing. If courts never ventured past existing law, our law would become musty, stale, out of date, and soon cease to exist.
This court believes the first great maxim of equity is certainly applicable, to-wit: Equity will not suffer a wrong without a remedy. The plaintiff has suffered a wrong, and this court will provide a remedy.
From a 1988 opinion on the maxims of equity in the grand scheme of jurisprudence …
In law school we hear talk about the great maxims of equity. Sometimes we get so wrapped up in modern practice, we neglect the fact that our Court system is the greatest in the world. Some of the great part on which we operate is embodied in the maxims of equity. These are statements or principles of how Courts should treat litigants and the rights of parties that come before the Court. A lot of our maxims, in my opinion, rise even above the Constitution because they go to the guts and heart of what is going on. The last great maxim of equity was: “No one should be condemned without a legal chance to be heard.” The maxim is so clearly founded in natural justice that even a savage would understand it, and modern government observes it as an indidpensable principle.
From a 1987 opinion on burgeoning family law …
In thirty-two and a half years as a member of the Bar and a member of the bench, the Court has found on numerous occasions why very few lawyers would accept an appointment or ever serve as a Chancery Judge. Those who do, sjhould sometimes have their sanity examined. This is a field of law and this is the Court in which himan emotions and family prroblems are generated with all the animosity God gives people the ability to produce. The more the problems, the better the lawyers, the more the law. This is why family law evolved in the last five years to a third branch of law. A decade ago, we had two branches of law, Civil and Criminal. Family law is the most prolific law in the changing and evolving of laws, rules, procedures, and concepts.
I am quite aware that this case will give the appellate court, and the judge thereon to whom it may be assigned, the opportunity to either have a field day in family law and domestic relations, or simply go bananas, depending on his or her temperament.
from a 1992 opinion on enforcing court orders …
The last time I was in Quitman, a gentleman approached me on the street and said, “Warner, I served on grand juries with you [when the judge served as 10th Circuit District Attorney] thirty years ago. I thought you were dead.” In the movie Jeremiah Johnson, a similar statement was made when a prospector said, “Some folks say you’re dead, some folks say you will never die.”
As long as this Judge is living, one of the most dangerous things people can do is disobey court orders. When I took an Oath to see that they were enforced, I meant when I said: “I will.”
And this from a 1990 decision about where the buck stops — or doesn’t …
Courts do not exist to make people happy with their decisions. We simply have to make a decision as best we can, based on what we perceive to be the facts, the evidence and the law.
* * *
If anybody desires to appeal, perhaps the Supreme Court will find this is an instance where we need divine appellate reaction. Perhaps the judges in Jackson are far more divine in their knowledge than us trial judges, and if so, I would appreciate their insight.
DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, CONCLUSION
December 19, 2012 § 1 Comment
This is the finale of the series on Mediation by Don Dornan. Jr., of Biloxi.
CONCLUSION
When an agreement is reached through mediation, the parties feel a sense of relief on one hand and a degree of satisfaction on the other. This is because they have actively participated in crafting the solution to their dispute. Even if a party has some misgivings, this feeling usually evaporates over time, resulting in overall satisfaction with the process. Because there are no losers in mediation, no stigma is created because the parties crafted their own agreement with the assistance of the mediator.
Not every case can be settled to the satisfaction of lawyers representing Plaintiffs or Defendants. However, the best achievable settlement can be realized through effective use of the mediation process.
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Many thanks to Mr. Dornan for allowing us to benefit from his work here on the blog. I hope you will find it useful. I know that from his tips and those in Lydia Quarles’ series, I have gained a better understanding of the ways to approach, prepare for, and operate during mediation. The benefits to litigants can be substantial.
DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, PART V
December 18, 2012 § Leave a comment
This is Part V of the series on Mediation by Don Dornan. Jr., of Biloxi.
GETTING PARTIES TO SAY “YES”
Because the mediator is neutral and has no interest in the ultimate outcome of the case, he lacks the authority to force one party or the other to settle the case if it is not believed to be in that party’s best interests. Likewise, armtwisting, threats and intimidation by the mediator ring hollow because the mediator is without any adjudicatory authority over the case. He cannot admit or exclude evidence, compel discovery or grant summary judgment. Thus, it is the mediator’s effective use of the mediation process which most often brings the parties to agreement on terms which are mutually acceptable.
Some of the methods and techniques which have proven successful in changing attitudes and reassessing expectations:
Reversal of Roles – Sometimes the mediator will ask the lawyers to exchange roles in the case and make the other lawyer’s best argument. Follow up questions such as “If you were representing the other side, how would your evaluation change?” and “If you were representing the other side, how would you evaluate your witnesses?” can bring about a relaxation of the party’s viewpoint.
Correct Misunderstood Facts and Law – If a party’s evaluation of the case is clearly based on a misapprehension of a material fact or the applicable law, the mediator can often break a logjam by diplomatically clearing up the misperception in a balanced and inoffensive manner.
Best Case Scenario/Worse Case Scenario – Asking each side to articulate their best scenario and their worse case scenario often permits the litigants to see more clearly the wide range of potential outcomes by illustrating the best and worst that may happen if the mediation falls through. This approach can also add perspective to the other party’s last offer.
Take a Time Out – Sometimes having the parties take a break from mediation in the same room can break tension which builds up over a long day of negotiations. The mediator may encourage conversation on any topic other than the case. Likewise, taking a lunch or dinner break and reconvening often relaxes the participants and soothes emotions.
Confidential Disclosure of Bottom Line – If both parties will agree, this procedure can at least inform the mediator as to whether a gap between the respective negotiating positions can be closed. This approach normally should only be employed later in the negotiation process. With the agreement of both parties, each side confidentially discloses their bottom line settlement figure to the mediator. If the figures coincide, there is a settlement. If they overlap, the parties agree in advance that the case will be settled at the mid-point between the overlapping figures. If the figures do not coincide or overlap, they remain confidential and the parties remain at their prior negotiating positions. The obvious drawbacks to this approach are that it depends on the willingness of the parties to divulge their true bottom line figures to the mediator and on the integrity of the mediator in maintaining the confidentiality of this information.
Bracketing – Impasse can sometimes be broken through the technique of bracketing. In this approach, a party may send a message to the other side through the mediator such as, “We will move to $X if you will move to $Y.” There are risks in employing this technique. For example, if the opponent’s response is simply to decline the invitation, without more, the offering party has revealed a willingness to move to $X and gained neither a counteroffer nor any meaningful information about the opponent’s next move. Parties rarely agree to the conditions of a bracketed offer. Usually, the best that can be hoped for is a response such as, “We won’t move to $X, but if you will move to $A, we will come to $B.”
Attrition – The mediation process can continue for long hours and sometimes this promotes resolution. The parties can be vulnerable to mental and emotional fatigue. Ocasionally, a party’s strategy may simply be to wear down the other side’s resolve. Although the fatigue factor can sometimes result in agreement, the mediator must be careful to insure that any final agreement is entered into with the full knowledge and understanding of the parties.
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