Friday, July 25, 2014

Taking another look at ENE

Mediation and arbitration have been out-of-court dispute resolution options available to Florida litigants for a quarter century. Early Neutral Evaluation or ENE is relatively new and has perhaps not caught on because of lack of court rules and some misconceptions about the process. Early Neutral Evaluation was developed in the United States District Court for the Northern District of California to reduce the expense of litigation for civil litigants. ENE is a hybrid of mediation and arbitration with a goal of helping litigants gain a better understanding of their case. Simply put, a third-party neutral examines the positions of the parties and gives an evaluation of the case. ENE is designed to avoid unrealistic expectations about the probable outcome of a case. ENE ensures time and money are not wasted on litigation and provides a reality check for attorneys and clients. A court-appointed neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel once the parties request ENE. Sessions generally include and introduction and opening remarks by evaluator, followed by presentations of claims and defenses by counsel. The neutral evaluator then identifies common ground and probes possible stipulations. Upon clarifying key disputed issues, the evaluator can ask if the parties wish to explore settlement before the evaluation is presented and otherwise conduct settlement negotiations if the parties agree to do so. If not, the evaluator explains their assessment of the case, including what may be awarded at trial, what the settlement range of the case should be, and the strengths and weaknesses of each party’s case. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. Formal discovery, disclosure and motion practice rights of the litigants are fully preserved. Skilled neutral evaluators can also assist with streamlining case management early, including E-discovery. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary to conclude the case and a monetary estimate of the cost of continuing toward trial. I will be working with other full-time neutrals in Florida to explore establishment of a pilot program here. See California rules here--

Wednesday, July 16, 2014

Apple E-Book Settlement Contingent on Losing Appeal

With trial set to begin before U.S. District Judge Denise Cote in New York next month, Apple has agreed to pay as much as $400 million to settle a lawsuit over accusations that it colluded with publishers to fix the price of e-books. Interestingly, the settlement avoids a second trial and depends on Apple losing an appeal of last year's ruling that it violated anti-trust laws over pricing. That ruling found Apple orchestrated a conspiracy with five publishers to artificially raise e-book prices. Apple has continued to deny that it engaged in any wrongdoing and will not have to pay if it prevails in its appeal, now in the Second Circuit in New York. If approved by the trial judge, the money would go to consumers and Apple will pay legal fees upon losing the appeal. Lawyers representing consumers and 33 states were requesting over $800 million in damages for those negatively impacted by the alleged higher prices for e-books. Publishers accused of colluding with Apple-- Hachette Book Group, HarperCollins Publishers, Penguin, Macmillan and Simon & Schuster already settled in a separate lawsuit. Reportedly, the settlement had previously been announced last month, but the details had not yet been released. See stories here-- and

Thursday, July 10, 2014

Knocking the "A" off ADR

I was recently elected to the Executive Council of the Alternative Dispute Resolution Section of The Florida Bar. At our meeting during the annual convention in Orlando, we discussed the well-known rate of settlements and the fact that less than 2% of cases actually result in trials. Mediation is an established part of the legal system in most populous states and in reality, it is the norm rather than an alternative in resolving disputes. Court-ordered in many instances, but always voluntary as to the self-determined outcome, mediation is simply dispute resolution. I am now involved in producing an ADR Section website and our committee is thinking about shaking up the branding and nomenclature to reflect the maturity of mediation and arbitration. Perhaps ADR in the 21st century is a misnomer? Maybe the "A" in ADR should morph from "alternative" into "accessible" dispute resolution or be dropped entirely? These are some of the issues our profession is grappling with as our bar approaches 100,000 lawyers in Florida. Stay tuned for more on this topic and give your input by joining the ADR Section through the application here:$FILE/ADR%20Application.pdf?OpenElement

Tuesday, July 8, 2014

GM Mediator Crash Payouts

A plan recently developed for General Motors (GM) by Mediator Kenneth Feinberg, who previously helped develop terms following the 9-11 terror attacks, BP oil spill and multiple shooting incidents, will provide compensation for people killed in accidents caused by faulty ignition switches. Under the guidelines, families will be offered $1 million for the death of the victim, plus $300,000 for the surviving spouse and $300,000 for each of the victim's surviving dependents. Those payments are intended to cover non-economic losses, such as emotional distress. Claimants in the case can choose options for economic losses and look at the victim's previous earnings, benefits, age and household to determine how much should be awarded, including a victim's past, present and assumed future income. The protocol takes effect August 1. GM has launched a website that describes the plan-- Victims submitting personal injury claims are being compensated for economic and non-economic losses on a sliding scale, from $500,000 if they were hospitalized for at least 32 days, down to $20,000 for one overnight hospitalization. Eligible claimants who were physically injured in an accident related to the ignition switches but not hospitalized overnight will receive up to $20,000 for medical treatment. The compensation plan also notes that, "because the physical injuries are so vastly different, and have significantly different long-term effects," each major injury claim will be evaluated to establish non-economic loss. Lawsuits against GM claim a death toll of around 60. The U.S. Department of Transportation already fined GM $35 million for the safety issues related to the delayed recall. See news story here--