How to Think Like a LawyerAs an advocate- represent the client zealously but within the bounds of the lawAs a judge- have to be impartial, not advocatesAs an advisor- conservative, not pushing the envelopeAs a peacemaker-Civil LitigationCan have appeal to correct errors of lawUnlimited discovery- can see what the other side is going to useBiding ArbitrationCan subpoena a witnessCan get a depositionIf witness is detrimental to case- it doesn’t matter, you have to use the witnessIf a judge sent every case to binding arbitration- deny due processThe law is whatever the arbitrator says- you can’t appeal- even if the arbitrator is wrongWhatever you show the judge you have to show the other sideMediationMost affective way of solving a tough disputeA trained, certified, neutral person helps parties come togetherAnything anyone says is confidentialMay never have one side apologize or make nice- making it hard to settleMediator can only show the other what you show them with authorizationCan choose a mediator- or judge assigns itTypically both sides will evenly split the mediator feesEach 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 aloneEither we willSettle todayAgree to meet againReach an impasseSettlement could be better than what would have been awarded in a trialPrivate SettlementDon’t have confidentiality if you don’t settledo it yourselfless likely to be effectiveReasons to SettleAvoid litigation costsConfidentialDoesn’t damage reputationFasterAvoid emotional distressMore flexibleRisk of lossAvoid sanctionsDistractionCompanies that are in trial will become very distracted in their businessBefore trial, a judge will order both parties to participate in mediationIs there any kind of case that can’t be settled?Can’t settle cases that arguing that something is unconstitutionalAspects to procedural due processUnbiased juryTime to prepareAccess to an attorney (in civil-need to pay for your own attorney)Transcript of what is said in court and evidenceFor appealsLooking at a case:What’s the likelihood of successWinning or losing isn’t a sure thingBest case- 70%Worst case- 30%Likelihood of collectingOn average- 50%Plaintiff is suing for $100,000If case goes on for a few years- attorneys can charge a few hundred $ per hourWould be difficult for plaintiff to hire a lawyer- suing for less than what they would have to pay for feesContingency feeIf plaintiff wins- lawyer gets 40% of winnings, but could get nothing if they loseWidget- what someone is suing forWhy people can’t settle out of courtParties don’t trust each otherEmotions get in the wayWhen should a good lawyer start looking towards settlementIn the very beginningREVIEW QUESTIONS pg. 2311. False2. False3. False4. False5. True6. False- the mediator doesn’t make a decision7. False8. False9. FalseChapter 7 Lecture 04/14/2014How 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 depositiono 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 hard to settle - Mediator can only show the other what you show them with 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 willo 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 - Distractiono Companies that are in trial will become very distracted in theirbusiness 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 unconstitutionalAspects 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 $100,000 - If case goes on for a few years- attorneys can charge a few hundred$ per hour - 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. 2311. False 2. False 3. False4. False 5. True 6. False- the mediator doesn’t make a decision 7. False 8. False 9.