DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, PART IV
December 17, 2012 § Leave a comment
This is Part IV of the series on Mediation by Don Dornan. Jr., of Biloxi.
Acknowledge the Weaknesses in Your Case
Mediation is a process which requires a candid self-examination of the client’s case. Mediators will frequently demand that counsel admit those weaknesses in the presence of the client. Credibility may be lost if weaknesses are not acknowledged, at least in the private sessions with the mediator. When the client hears the attorney acknowledge a weakness, it often vicariously allows the client to acknowledge it as well. Often, attorneys are reluctant to admit weaknesses while the client is present. Instead they may stretch for arguments to support less tenable positions or attempt to avoid the issue entirely. Good mediators, however, are able to smoke out such bluffing and evasive answers.
Substantiate Your Position to the Opposing Party
Often lawyers assume prior to mediation that the facts of the case are clear or that the evidence is undisputed. This is a mistake which can be avoided. In advance of the mediation, be sure you have all of the evidence necessary to establish your claims or defenses. Evaluate the strength of the evidence on each element for credibility, reliability and accuracy. Then, be sure the opposing party is provided with documentation supporting your position. It is fundamental to any negotiation that the opposing party have all the information necessary to understand and evaluate your position. Too often, attorneys wait until the mediation is imminent to provide evidentiary materials to the opposing party. In personal injury cases, medical expenses, hospital records, economic reports and life care plans are of no value if they have not been provided to the other party sufficiently in advance for review by those who will make the ultimate decision on settlement.
Anticipate challenges to the accuracy of your evidence by the opposing party and bolster your case, if necessary, in advance of mediation. This will help prevent the other side from arguing that facts which are actually established or irrefutable are in dispute, a common mediation technique.
DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, PART III
December 13, 2012 § Leave a comment
This is Part III of the series on Mediation by Don Dornan. Jr., of Biloxi.
Develop a Strategy
Attorneys who have consistently achieved good results in mediation have followed at least two rules. First, they have made a realistic evaluation of the potential settlement and verdict ranges of their case, along with the risks of proceeding to trial, and will have discussed them fully with their client. Additionally, successful attorneys devise a negotiation strategy similar to a game plan which will help them reach their objective. A cogent discussion of the risks and ramifications of trial and other potential weaknesses will be critical to establishment of a realistic mutual goal.
For example, the client’s confidence in his lawyer can be adversely impacted if he learns for the first time during mediation of some risk, such as summary judgment or punitive damages, which was not explained to him earlier. An experienced mediator is likely to ask about these issues. Therefore, the lawyer is well advised to have the client prepared for and read to discuss all potential pitfalls.
The mediation game plan should be planned in advance yet be flexible enough to account for the opponent’s actions. Preparing the client and obtaining sufficient settlement authority are important aspects of the overall strategy. Access to the client and lines of communication to other persons with authority should be established in advance.
Be Punctual, Courteous and Attentive
The mediation date is an important event in the life of any lawsuit. It should be treated with the same level of importance as a court hearing. Lawyers and their clients should be on time for the mediation. Tardiness and last minute scheduling conflicts are poor excuses and do not enhance the credibility of the lawyer or the case. Nothing gets a mediation off to a poorer start than for the lawyer to be late while his client sits patiently awaiting his arrival. In addition to being unprofessional, tardiness rarely promotes resolution.
The Joint Session
A typical mediation begins with a joint meeting of all participants presided over by the mediator. The mediator usually delivers a brief preamble and overview of the mediation process and secures a commitment to proceed from the parties. The mediator will customarily invite each party to make an opening statement or position statement. This is the time when counsel are allowed to set forth a summary of the case and their position on the disputed issues. Because all participants are present, the position statements are delivered to a captive audience which is obligated to listen quietly to the other side’s arguments.
Some lawyers are reluctant to submit their clients to a joint session for fear that the opponent’s opening statement will inflame the client and make compromise more difficult. This viewpoint is usually inaccurate. The joint session and opening statements are almost always useful or at least not counterproductive.
Beyond disclosing each side’s position, the joint session has the following advantages:
It identifies the issues which are in dispute and those which are undisputed.
It allows clients to hear the other side’s position for themselves. While they will not likely agree with what they hear, the opponent’s position will be confirmed in the mind of the client. This helps underscore the uncertainty of litigation which must be acknowledged in order for the client to make meaningful compromises.
It can encourage parties to ventilate and begin the process of emotional runoff which will hopefully translate into a willingness to compromise.
Listening to the opponent’s position statement introduces the client to the reality of a contested adversarial proceeding and provides a preview of the trial.
DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, PART II
December 12, 2012 § 1 Comment
This is Part II of the series on Mediation by Don Dornan. Jr., of Biloxi.
Avoid Mediation When Your Client is not Seriously Interested in Resolution
If the facts of the case are such that you are certain to prevail, there is probably no reason to mediate, absent court order. Likewise, mediation will not likely succeed unless both parties are committed to the process. If your client is not committed to resolution, it will be difficult to achieve a successful settlement. When this occurs, the lawyer should not encourage mediation nor allow the opposing party to gain misplaced optimism that a mediated settlement is likely. Often, lawyers and their clients agree to mediation knowing that there is little chance of success. When this occurs, lawyer and client both run the risk of damaged credibility with the opposing lawyer and the mediator when the mediation proves fruitless.
Don’t be Afraid of Your Own Client
Before the mediation, all aspects of the mediation process should be explained to the client. The lawyer’s evaluation of the claims and defenses should be laid out for the client in a reality-based fashion. The client should be encouraged to listen closely to the lawyer’s assessment and to acknowledge the strengths and weaknesses of his case. At the same time, the pre-mediation meeting will afford the client an opportunity to express his feelings and ventilate, if necessary. The adroit lawyer will provide an empathetic ear and reinforce his confidence in the client while administering a dose of reality about the case.
The client can be the best piece of evidence in the attorney’s arsenal even though the mediation is informal and non-binding. A credible and impressive client at mediation is just that – a credible and impressive client. However, the opposite is also true. While it may not be tactful to broach this directly with the client, a poorly performing client is a factor which should be taken into account in the evaluation of the case.
It is the responsibility of the lawyer to explain the mediation process to the client. The goal here is to enhance the client’s ability to understand what is happening as the mediation unfolds. The client should be prepared to answer questions from the mediator clearly, concisely and without hesitation. The client should also be prepared to deal with an effective opposing attorney who addresses his opening remarks to the client rather than to the mediator. Here, the client’s body language and appearance are more important than any words which may be spoken.
Don’t be afraid to advise the client of the other party’s position and the fact that the client may feel threatened, criticized or intimidated during the joint session. Explain to the client that the opposing party will not agree with his position on disputed issues and that the client may be angered at the opposing lawyer’s position statements. Such statements should not be internalized nor allowed to create emotional barriers to compromise. Clients are better served when they are prepared in advance for negative information.
Prior to the mediation, explore with your client the process of negotiation. The idea that settlement requires negotiation and negotiation requires compromise should be explained and encouraged.
DO’S AND DONT’S FOR SUCCESSFUL MEDIATION, PART I
December 11, 2012 § Leave a comment
This is Part I of the series on mediation by Don Dornan, Jr. of Biloxi.
MAKING AN OFFER THEY CAN’T REFUSE
Why Mediation?
There are overcrowded dockets in many of Mississippi’s Circuit and Chancery Court Districts. In the more populous counties, the time interval from filing to trial date can often be many months. The uncertainties of full dockets, motions under advisement and trial resettings frustrate litigants. These factors operate on both plaintiffs and defendants. Mediation offers parties an immediate forum and process which focuses on the strengths and weaknesses of the case and provides an opportunity to avoid the transactional costs of litigation and the uncertainties of trial.
Attorneys and judges have come to realize that approximately 90% of civil cases are settled at some point in the litigation process. They have learned that the mediation process creates a focus by the parties not previously achieved through routine discovery. This direct focus on strengths and weaknesses promotes resolution. Even when a mediation is unsuccessful, valuable information about the opposing party’s evidence, legal arguments and strategy is often gleaned.
Become Proficient Representing Clients in Mediation
If, as posited above, mediation has become a recognized and entrenched process for resolving litigated disputes, lawyers representing plaintiffs and defendants are well advised to expand their knowledge and understanding of the mediation process. In mediation, lawyers are tasked with the role and responsibility of obtaining the best result for their clients. However, in mediation, the lawyer’s role is unique in that he acts as an advocate and a negotiator. Recognizing these dual roles and refining a lawyer’s skills in each area are keys to successfully representing clients in mediation.
Lawyers who are successful in “making an offer they can’t refuse” have learned to embrace the mediation process. They know to develop a clear strategy and objectives with the client and how to utilize negotiation techniques intrinsic to the process.
DO’S AND DON’TS FOR SUCCESSFUL MEDIATION
December 10, 2012 § Leave a comment
Attorney Don Dornan, Jr. of Biloxi authored a superb article on mediation techniques for The Mississippi Lawyer in the Fall of 2004. With his permission and that of the Bar, I have made some minor editorial changes to serialize it here, beginning tomorrow. Together with the pieces contributed by Lydia Quarles last month, you will have some impressive tools to help you develop skill in representing your clients in mediation.
Mr. Dornan’s extensive experience with mediation qualifies him to speak authoritatively on what you need to do to have a successful experience with mediation.
Mr. Dornan’s bio above omits that he is a past president of the Mississippi Bar Association.
“QUOTE UNQUOTE”
December 7, 2012 § Leave a comment
“I have striven not to laugh at human actions, not to weep at them, nor to hate them, but to understand them.” — Spinoza
“The more immoral we become in big ways, the more puritanical we become in little ways.” — Florence King
“The moral high ground is wreathed in fog.” — Arthur Miller
WHERE DID MISSISSIPPI’S CHANCERY COURTS COME FROM?
December 6, 2012 § 1 Comment
Note: Since neither of the law schools in Mississippi require their students to study chancery courts and equity jurisdiction as a discrete subject, I thought it would be useful and informative to set out a brief history of how we came to have separate chancery courts in our state, as a starting point for understanding how our courts have developed separate practices and procedure.
When the Mississippi Territory was created in 1798, there was influx of settlers into the region around Natchez, where significant wealth began to be accumulated. As land was developed and plantations were established, there was a growing need for legal professionals to research and litigate land claims, and to advise the growing business community.
Lawyers came to the new territory from Maryland, Virginia and the Carolinas. They brought with them the knowledge of their own legal systems based on English jurisprudence and judicial organization. The first chancery courts in the colonies had been established in Maryland, and that state’s equity system was regarded as being one of the most advanced. The courts in the Atlantic states administered equity as had the chancery courts of England.
The immigrant attorneys influenced the territorial legislature, and the first territorial courts established were the Superior Courts, which had both legal and equitable jurisdiction. Interestingly, the legislation establishing those courts provided that they “may ordain and establish all necessary rules for the orderly conducting of business in equity,” meaning that the courts and not the lawmakers made the rules of procedure.
Mississippi achieved statehood in 1817, and the first state constitution authorized the legislature to establish a separate court of chancery. From the inception of the State of Mississippi, then, chancery court has been a constitutional court. Nonetheless, it was several years before the legislature acted on its authority. In 1821, at the urging of Virginia native George Poindexter, the legislature did establish the separate superior court of chancery.
Supreme Court Justice Joshua G. Clarke (for whom Clarke County is named) was selected as the state’s first chancellor. At the time, the position of chancellor was appointed, and was regarded as preferable to a seat on the Supreme Court.
Practice in chancery then was vastly different from what it is now. There was one chancellor, who sat at the seat of government and one or two additional places, and to whom the cases were brought. Trials were the exception. Instead, testimony was presented by deposition. The “Learned Chancellor” examined the facts presented in the light of any applicable precedent (the case law of New York and England were the primary authorities until Mississippi developed its own substantial body of law), and rendered a scholarly and, hopefully, wise decision, which could then be appealed to the supreme court.
The constitution adopted in 1832 made the position of chancellor an elected one, and it is believed that Mississippi’s were the first elected chancery judges. That constitution provided for separate courts of equity, but also authorized the legislature to give circuit courts concurrent equity jurisdiction “in all cases where the amount or thing in controversy does not exceed $500; also all cases of divorce and for foreclosure of mortgages.” The provision for concurrent jurisdiction was made because it was burdensome for poorer litigants to have to travel to the locale of the chancery court.
To help alleviate the caseload, the position of Vice-Chancellor was created in 1842, and another was created in 1846. At that point, the three chancellors began riding what amounted to a circuit, holding court in different sections of the state, similar to our federal courts now.
By 1856, the business in chancery court had grown to such an extent that the constitution was amended in that year so that the circuit judges held chancery court in each county.
Up to 1868, probate matters had been entrusted to local “probate courts,” inferior to the chancery courts, which were staffed by lay persons who had no legal training or experience, and no judicial background. As a result, business was frequently mishandled, and the chancery courts were swamped with suits stemming from the inferior court actions. It was often said that the only issue when reviewing the action of a probate court was whether its actions were void or merely voidable.
As for practice and procedure, the principle established in territorial days that the chancellors would establish their own procedures continued in effect, but there was no central authority for the rules, and there was a confusing proliferation of procedural rules and practices that varied greatly from one chancellor to another. The resulting confusion gave rise to a call for uniformity among the courts.
Another source of dissatisfaction with the chancery system was that as the population grew there was an increasing demand for court time, but too few judges to meet the demand. Some called for more chancery judges, and others wanted to abolish the chancery courts and vest equity jurisdiction in the circuit courts, which were already in place serving every county.
In 1868, there was another constitutional convention formed due to Reconstruction. Its constitution once and for all established chancery court as a separate court, with chancellors sitting in districts across the state, comparable to already-established circuit court system. The concurrent jurisdiction arrangement with circuit court was terminated, as were the probate courts; the chancery courts with jurisdiction over the matters they fomerly handled.
In the wake of the 1868 constitution, the legislature began to address dissatisfaction with the patchwork of court procedures and rules by passing laws dictating procedures to the courts.
The provisions of the 1868 constitution for chancery carried over into the 1890 constitution, for the most part.
Over the years there were few changes in court legislation. In 1916, the legislature passed a bill requiring that the former method of taking testimony by deposition in chancery be abolished in favor of oral testimony.
In 1924, the legislature adopted the Chancery Practice Act, which settled once and for all, until 1981, that the legislature, and not the courts, would control the procedural and evidentiary rules of the courts.
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This information is distilled from Judge Griffith’s Mississippi Chancery Practice, 2nd Ed., 1950.
WHAT TO DO AFTER THE SPECIAL MASTER REPORTS
December 5, 2012 § Leave a comment
It is my practice to appoint guardians ad litem to serve as special masters pursuant to MRCP 53. That rule vests the special master with broad powers, including subpoena powers and auhority to hold evidentiary hearings. The ultimate function of the special master is to produce a report, which is addressed in MRCP 53(g), which reads as follows:
(g) Report.
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and, unless otherwise directed by the order of reference, shall file with it a transcript of the proceeding and of the evidence in the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) Acceptance and Objections. The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.
(3) Stipulation as to Findings. The effect of a master’s report is the same regardless of whether the parties have consented to the reference; however, when the parties stipulate that a master’s finding of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
(4) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
That provision for acceptance and objections is what tripped up the appellants in the COA case of Gettis and Montgomery v. Frison, decided October 30, 2012.
To make a long and sinuous train of events short, Gettis and Montgomery filed an objection to the special master’s report, but neither noticed it for hearing nor apparently served a copy of their objection on the judge. The chancellor entered an order adopting the report, and the objectors appealed.
The COA cited Miles v. Miles, 949 So.2d 774, 778-9 (Miss.App. 2006) for the proposition that the appellants can not complain that the were denied the right to a hearing when they did not comply with the procedural requirements of 53(g), which conditions the right to a hearing on the filing of an objection and motion and giving notice of hearing per MRCP 6(d).
If you are involved in a case where a special master has been appointed, be sure you read and comply with Rule 53 to the letter. The filing of an objection and a hearing thereon may be your only opportunity to get the report modified or tweaked for your client’s benefit, because 53(g)(2) specifically dictates that “The court shall accept the master’s findings of fact unless manifestly wrong.”
As I have said here many times: Read the rule. That hazy recollection from the last time you glanced at a part of it twelve years ago might not serve you well at all.
And a side note: In the Gettis and Montgomery case, the COA decision by Judge Irving points out several times that the appellants never filed a post-trial motionasking the chancellor to take another look at how the case had played out. The insinuation is that the judge may have relented and given them a chance to make a record, but we will never know that because they did not file a motion for rehearing. As we have discussed here before, you are not required to file a post-trial motion in chancery as a prerequisite to an appeal, but it may just give you that one more bite at the apple that you need.
THE ROLE OF THE SUBSCRIBING WITNESS
December 4, 2012 § 1 Comment
In the MSSC decision in Estate of Holmes, decided November 29, 2012, there was a proceeding for solemn probate. The two subscribing witnesses were called to testify, and their testimony established that: they did not know they were witnessing a will; they that the testator did not request that they witness a will; and that they did not satisfy themselves that the testator was of sound and disposing mind when she executed the will. The MSSC reversed the chamncellor’s decision admitting the will, holding that the subscribing witnesses did not satisfy the requirement of “attesting” witnesses.
Justice Dickinson’s opinion states, beginning at ¶ 10:
Mississippi law empowers “[e]very person eighteen (18) years of age or older, being of sound and disposing mind” to make a will which, if not “wholly written and subscribed” by the testator, must be “attested by two (2) or more credible witnesses in the presence of the testator or testatrix [MCA 91-5-1]. The attesting witnesses must meet four requirements: First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.].
¶11. These formalities associated with attesting a will are important, not only as safeguards against fraud by substitution of a different will than the one signed by the testator, but also to make sure a person executing a will is of sound and disposing mind.
And this at ¶ 14: “One may not witness a will in ignorance.”
I would say that most of us who have ever prepared simple wills as a routine matter for clients have not paid heed to the exacting requirements that are imposed on subscribing witnesses by operation of the case law in this area. But, as this case illustrates, it is worth re-examining how you select and instruct your subscribing/attesting witnesses as to their duties, and, more importantly, how you document what it is that they are witnessing. By that latter point, I mean to suggest that you might want to scrutinize that subscribing witness affidavit form that is fossilized in your comouter and which you have been using for more than 35 years, to see whether it is stout enough to pass muster in a trial of this sort, and whether it would help jog the memory of the witness to the extent that the witness’s testimony would be helpful.
Justice Pierce’s dissent raises some good points about the prudence of requiring witnesses, some of whom performed their duties decades before, to have almost perfect recall of the events surrounding the subscription of the document. I know that I have been asked several times to recall events surrounding similar transactions, and I have found my memory murkily general and unhelpful, at best. Imagine a lay person who is not familiar with all of these legalities and their import being asked similar questions.
The Better Chancery Practice Blog 