PBCBA BAR BULLETINS pbcba_bulletin_march 2018 | Page 7
ADR C o r n e r
How to Win Your Trial During Mediation
KEN STERN, JUDGE (RET.)
You’ve been there often - much time and
money has been spent getting discovery
and other pretrial motions
set and
heard, but you still have not obtained the
discovery and evidence needed even to
settle the case, much less try it. Your client
is expressing frustration with the process
and with you. What do you do? What
you do is concentrate on expediting the
process so that you can mediate the case
to a settlement that will be a shortcut to
success. Here’s how:
A. Get pending motions resolved
(1)
Compromise on discovery
issues and file Agreed Orders
Seek agreement from opposing
counsel to Agreed Orders resolving pending
disputes (e.g., agreeing to limit the scope of
a discovery motion, or agreeing to a format
for protecting privileged information by
limiting who may see it).
(2) Keep moving for sanctions
if opposing counsel chronically fails to
fulfill his/her discovery obligations; the
opposing party will have little tolerance for
his/her attorney’s antics when the client
suffers.
(3) Use a Special Magistrate (aka
Special Master) to hear discovery motions.
Since opposing counsel probably shares
your frustration at getting motions and
objections resolved, file a Joint Motion
for Appointment of a Special Magistrate
together with an Agreed Order, and the
Court will enter the Order. The Agreed
Order should name the person being
appointed as a Special Magistrate, and
should specify the Motions to be heard.
The Magistrate will confer with you and
opposing counsel to select the date(s) and
location for the hearing(s), and to specify
the format in which the relevant documents
(each Motion, Answer Memorandum and
Reply Memorandum, with exhibits) should
be presented ahead of the first hearing date.
At the conclusion of the hearings, the
Magistrate will take all matters under
advisement and will issue a Report and
Recommendations to the Court. These are
not binding; either side may file Exceptions,
asking the Court to rule adversely to
specific Recommendations. However, if the
Recommendations are supported by law
and facts cited by the Magistrate, the Court
will likely adopt them.
One cannot overstate the time and money
saved by this procedure. In one case in
which I am serving as a Special Magistrate,
I was asked to address discovery Motions
raising a host of legal issues. The motions
necessitated evidentiary hearings and
legal argument, and it was clear that it
would have taken more than a year to have
all the motions heard and ruled on by the
Court, given its overwhelmingly massive
docket. After two days of hearings, and
after conducting legal research, I issued a
detailed, comprehensive 51-page Report
and Recommendations to the Court. Only
one side filed Exceptions and these were on
a few points. My fees, though substantial,
aggregated far less than the attorneys’ fees
would have, had the attorneys conducted
separate hearings on the Motions, months
apart. The saving of time was between nine
and 10 months, and the attorneys now had
the information needed to take depositions
and conduct other follow-up discovery.
(4) Seek Appointment of a Special
Magistrate to assist the Court in
document review.
Suppose you or opposing counsel, in
response to a Request for Production,
have submitted for in camera inspection
15 boxes of Bates-stamped documents,
regarding which various grounds of
privilege have been asserted, and the Court
advises you that it will probably be many
months before all those documents can be
reviewed and ruled upon by the Court. You
can unilaterally move the Court to appoint
a Special Magistrate to perform the review
and to file with the Court a Report with
specific Recommendations.
Your client
must bear the initial cost of the Magistrate’s
fees, but the Order of Appointment can
provide that the Court reserves jurisdiction
as to taxing of those fees.
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(5) If your mediation date is set, enlist the
Mediator to convince the other
side to furnish outstanding discovery prior
to the mediation.
You should ask the Mediator to represent to
opposing counsel that the absence of that
material will make it impossible for you
to advise your client to settle, because the
material is crucial to your evaluation of the
parties’ strengths and weaknesses in the
case. Such simple tactics often have the
desired result.
C. Create a Motivation for Your Opponent
to Resolve the Case at Mediation
If you have unearthed evidence damaging
to your opponent, or can plausibly claim
that you are close to doing so, you have
created an incentive for your opponent to
settle before things get worse. You should
initiate a full-court press, filing credible
motions (set to be heard after the mediation
date) which, if granted, would strengthen
your case and weaken your opponent’s, or
even create new dangers in going to trial.
These might include moving to amend to
request punitive damages, to add counts
to your Complaint or Counterclaims, or
to seek relief (e.g., an injunction) no t
previously pled for, and motions in limine
or for partial summary judgment.
You’ve got many tools at your disposal.
Don’t hesitate to use them.
Since retiring from the Bench, Judge Stern has been
enjoying an active practice as a Special Master,
Mediator, Arbitrator, Hearing Officer and Umpire. He
has served as Editor-in-Chief of Law Review, clerked
for an appellate judge, served as a Trial Attorney with
the Antitrust Division of the U.S. Dept. of Justice, and
as an Asst. U.S. Atty. in the Southern District of Florida.
In 1981, he came to Palm Beach County, and practiced
litigation in federal and state courts. Judge Stern may
be reached at [email protected] or at 561-901-4968.
His website is www.kennethstern.com.