Chapter 7 Lecture 04 14 2014 How to Think Like a Lawyer As an advocate represent the client zealously but within the bounds of the law As a judge have to be impartial not advocates As an advisor conservative not pushing the envelope As a peacemaker Civil Litigation Can have appeal to correct errors of law Unlimited discovery can see what the other side is going to use Biding Arbitration Can subpoena a witness o Can get a deposition o If witness is detrimental to case it doesn t matter you have to use the witness If a judge sent every case to binding arbitration deny due process The law is whatever the arbitrator says you can t appeal even if the arbitrator is wrong Whatever you show the judge you have to show the other side Mediation Most affective way of solving a tough dispute A trained certified neutral person helps parties come together Anything anyone says is confidential o May never have one side apologize or make nice making it Mediator can only show the other what you show them with hard to settle authorization Can choose a mediator or judge assigns it Typically both sides will evenly split the mediator fees Each attorney can send a confidential mediation statement with the facts of the case and why their client should win and suggest hard questions they should ask the other party when they re alone Either we will o Settle today o Agree to meet again o Reach an impasse Settlement could be better than what would have been awarded in a trial Private Settlement Don t have confidentiality if you don t settle do it yourself less likely to be effective Reasons to Settle Avoid litigation costs Confidential o Doesn t damage reputation Faster Avoid emotional distress More flexible Risk of loss Avoid sanctions Distraction business o Companies that are in trial will become very distracted in their Before trial a judge will order both parties to participate in mediation Is there any kind of case that can t be settled Can t settle cases that arguing that something is unconstitutional Aspects to procedural due process Unbiased jury Time to prepare Access to an attorney in civil need to pay for your own attorney Transcript of what is said in court and evidence o For appeals Looking at a case What s the likelihood of success o Winning or losing isn t a sure thing o Best case 70 o Worst case 30 Likelihood of collecting o On average 50 Plaintiff is suing for 100 000 per hour If case goes on for a few years attorneys can charge a few hundred Would be difficult for plaintiff to hire a lawyer suing for less than what they would have to pay for fees Contingency fee If plaintiff wins lawyer gets 40 of winnings but could get nothing if they lose Widget what someone is suing for Why people can t settle out of court Parties don t trust each other Emotions get in the way When should a good lawyer start looking towards settlement In the very beginning REVIEW QUESTIONS pg 231 1 False 2 False 3 False 6 False the mediator doesn t make a decision 4 False 5 True 7 False 8 False 9 False 04 14 2014 04 14 2014