While the key of any mediation is to get all the informa- tion to the other side necessary for a decision, you also want to accomplish two other things: (1) let the other side know you are completely ready for trial; and (2) make them worried about going to trial.
Some steps to consider to reach both goals are to create an “interactive brief” for mediation, which allows a viewer to use interactive features similar to website navigation. You can place all the relevant documents such as depositions, photographs, contracts, or whatever with navigational features to access the documents. You then can digitally deliver the PDF files to opposing counsel. This shows op- posing counsel that you have completely organized your case, you know it inside and out, and you have proof for every claim. This format is much easier to copy for dis- tribution to many decision makers than a five hundred to thousand page document with all these exhibits.
Also consider creating interactive timelines, which can be created as PDF files and visually allow readers to see how the chronology of events unfolds with the inclusion of all relevant documents (such as medical records, police reports, or any other document). Allowing readers to go back and forth in the chronology of events can visually bring the case to life.
Anything that you would do in trial to prove your case should be considered in mediation to get the maxi- mum result for your client in this atmosphere of not knowing when you will get a courtroom due to budgetary constraints.
4. CONSIDER THE ONE-DAY TRIAL OPTION.
If you cannot settle your case by way of a well-presented § 998 or mediation, then consider the new procedure of the expedited trial to get to trial, when a courtroom for a traditional trial is unavailable.
The Expedited Jury Trial Act (Code of Civil Procedure §§ 630.01–630.10, AB 2284), which went into effect in California on January 1, 2011, allows cases to be tried in a single day. It’s really the first major overhaul of how a trial may be conducted in the State of California, and it offers
28 FALL 2011
tremendous opportunity for attorneys and their clients.
While designed for smaller cases, there is no actual limit on the amount that can be in controversy, and the main point is to allow the case to be tried in a single day. How do you get this done? The parties must agree and stipu- late1
as follows:
• The jury is limited to eight or fewer, with only three peremptory challenges per side, and no alternates, which shortens jury selection.
• A waiver of right to appeal and posttrial jury mo- tions (Code Civ. Proc. § 630.08; Rule 3.1547(a)(1)).
• High/low agreements on damages are allowed but not required (Code Civ. Proc. § 630.01(b); Rule 3.1547(a)(2)).
• Each side has three hours for its case, including opening statement, cross-examination, and closing argument (Rule of Court 3.1550). The use of stipula- tions and evidentiary summaries is encouraged (Rules 3.1551(a), (c); 3.1552(a)).
• Traditional rules of evidence apply unless the parties stipulate otherwise (Code Civ. Proc. § 630.06(a)).
The one-day trial allows a matter to be decided extremely quickly in front of a jury rather than taking up to a week or more, and you gain a much greater likelihood of actu- ally getting out to trial.
However, if you choose to do a one-day trial, it behooves you to prepare a high-quality presentation that uses graphics and other visual tools to make your case in the most efficient, compelling, and convincing way. A case presented at a one-day trial is really mostly about open- ing statement and closing argument with very little actual testimony thrown in. Using effective graphics to narrow and highlight the issues will help your client a great deal.
5. CONSIDER STIPULATING TO A “JUDICIAL REFERENCE.”
If all of the above do not resolve the case, you may con- sider the hiring of a private judge to act as your judicial
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68