You don’t have to go to the law books to find the basic principles which apply to negotiation and settlement. In fact, these basic principles may be ones you learned growing up and possibly used before you ever entered law school. They are from clichés that we all have heard and probably used in our personal lives, but do they apply to our work as trial lawyers and litigators? Here are some I apply regularly:
“‘You can’t get blood from a stone.’ You can’t get something from someone who doesn’t have it. The proverb has been traced back to G. Torriano’s ‘Common Place of Italian Proverbs.’ First attested in the United States in the ‘Letters from William Cobbett to Edward Thornton.’ The proverb is found in varying forms: ‘You can’t get blood out of a stone; You can’t get blood from a rock; You can’t squeeze blood from a stone; You can’t get blood out of a turnip, etc….’ ” The application of the negotiation and mediation process is that you have to have a flush target as a defendant, either because of insurance coverage or assets that are reachable through any collection effort. This is the third part of the three-legged stool analogy of selection of lawsuits: liability, damages, and collection!
“…The proverb has been traced back to G. Torriano’s ‘Common Place of Italian —Proverbs.’ It first appeared in the United States in Benjamin Franklin’s ‘Poor Richard’s Almanac’ in 1744, and is found in varying forms….”
The importance of this one is that diplomacy is critical to successfully negotiating a resolution to a lawsuit. Some might think that the vigorous advocate who attacks like a pit bull will get his or her way. In my experience, that does not work in mediation, and maybe even in litigating a case. The most successful lawyers at negotiation base their “power” in negotiating on a high degree of knowledge about their case and the law and facts applicable, as well as personal skills of persuasion. Those who bang the table, and conduct themselves like attack dogs gain little respect. The diplomatic negotiator gets others to listen, believe and reach agreements. Leave the vinegar bottle at home, and take your biggest honey jar to the negotiation table.
The meaning: Nothing is irreversible until the final act is played out.
“Just to get this out of the way before we start: is it ’til, till or until? You can find all of these in print:
It ain’t over ’til the fat lady sings
It ain’t over till the fat lady sings
It ain’t over until the fat lady sings
“You might even find versions with isn’t instead of ain’t. Grammarians argue about ’til and till; I’m opting here for till. Okay; so who was the fat lady? If we knew that, the origin of this phrase would be easy to determine. Unfortunately, we don’t, so a little more effort is going to be required. The two areas of endeavor that this expression is most often associated with are the unusual bedfellows, German opera, and American sport.
“The musical connection is with the familiar operatic role of Brunnhilde in Richard Wagner’s Götterdämmerung, the last of the immensely long, four-opera Ring Cycle. Brunnhilde is usually depicted as a well-upholstered lady who appears for a ten-minute solo to conclude proceedings. ‘When the fat lady sings’ is a reasonable answer to the question ‘when will it be over?’, which must have been asked many times during Ring Cycle performances, lasting as they do upwards of 14 hours. Apart from the apparent suitability of Brunnhilde as the original ‘fat lady’ there’s nothing to associate this 20th-century phrase with Wagner’s opera.
“All the early printed references to the phrase come from US sports. Some pundits have suggested that the phrase was coined by the celebrated baseball player and manager, Yogi Berra, while others favor the US sports commentator, Dan Cook. Berra’s fracturing of the English language was on a par with that of the film producer Sam Goldwyn but, like those of Goldwyn, many of the phrases said to have been coined by him probably weren’t. Along with ‘It’s déjà vu all over again’ and ‘The future isn’t what it used to be,’ Berra is said to have originated ‘The game isn’t over till it’s over.’ All of these are what serious quotations dictionaries politely describe as ‘attributed to’ Berra, although he certainly did say ‘You can observe a lot by watching,’ at a press conference in 1963. In any case, ‘the game isn’t over till it’s over’ isn’t quite what we are looking for, missing as it is the obligatory fat lady.
“Dan Cook made a closer stab with ‘the opera ain’t over till the fat lady sings’ in a televised basketball commentary in 1978. Cook was preceded however by US sports presenter Ralph Carpenter, in a broadcast, reported in The Dallas Morning News, March 1976: Bill Morgan (Southwest Conference Information Director): ‘Hey, Ralph, this… is going to be a tight one after all.’ Ralph Carpenter (Texas Tech Sports Information Director): ‘Right. The opera ain’t over until the fat lady sings.’
“Another US sporting theory is that the fat lady was the singer Kate Smith, who was best known for her renditions of ‘God Bless America’. The Philadelphia Flyers hockey team played her recording of the song before a game in December 1969. The team won and they began playing it frequently as a good luck token. Smith later sang live at Flyer’s games and they had a long run of good results in games where the song was used. Sadly, Ms. Smith sang before games, not at the end. If the phrase were ‘It ain’t started until the fat lady sings,’ her claim would have some validity.
“Whilst printed examples of the expression haven’t been found that date from before 1976, there are numerous residents of the southern states of the USA who claim to have known the phrase throughout their lives, as far back as the early 20th century. ‘It ain’t over till the fat lady sings the blues’ and ‘Church ain’t out till the fat lady sings’ are colloquial versions that have been reported; the second example was listed in Southern Words and Sayings, by Fabia Rue and Charles Rayford Smith in 1976.
“Carpenter’s and Cook’s broadcasts did popularize the expression, which became commonplace in the late 1970s, but it appears that we are more likely to have found the first of the mysterious fat ladies in a church in the Deep South than on the opera stage or in a sports stadium.”
Here the application of this phrase to negotiation and mediation is consistent with the meaning set forth above. As long as folks are talking to each other about resolution, there is hope. Thus it is critical in negotiations to keep the dialogue ongoing. I recently was involved with a co-counsel whom I reluctantly let lead the negotiations in one of our cases. Instead of following this principle of continuing to communicate, he consistently dropped the ball and insisted that it was the other side that should call. The dialogue was inconsistent and often nonexistent, and he took no advantage of the momentum that was built up from time to time in the direct negotiations. The case took forever to resolve (several months), when it should have been resolved in several days of talks, and it took a mediation and more legal fees to finally get it done.
Communication in a settlement is the key. Trying to settle cases is no longer viewed as a sign of weakness. Make the overture of, “Let’s talk.” Then keep the talking going until the case is resolved or each side says “I have given you my last, best and final offer,” and the case cannot settle.
A deal done in negotiations means finality, certainty, and conclusion, rather than no closure, uncertainty and no resolution. You have to consider the impact that money or accepted terms have for the future. Your client can now put his/her/their life back together as best possible, recovery can begin, and the drain of litigation is over. What a relief for most people!
I’ll do a Part II before the week is out.
Let me hear your views, send me a note.
Good Mediating. . .
The short answer is no. When the President of the United States declares a state of National Emergency, Penal Code Section 396 prohibits raising the price of many consumer goods and services by more than 10% after an emergency has been declared. This applies not only to rents, but also to goods and services.
Penal Code Section 396 applies for 30 days after an emergency and 180 days for reconstruction services and emergency cleanup services. This period can be extended beyond these time frames by state legislature and local officials.
The statute applies to protect the pricing of the following major necessities: rental housing, hotels/motels, food and drink, emergency supplies such as water, flashlights, radios, batteries, candles, blankets, soaps, diapers, temporary shelters, tape, toiletries, plywood, nails, hammers and medical supplies, including but not limited to medications.
The law applies to neighboring counties as well and applies to all providers of the goods or services unless they can prove that the price increase is due to increased labor or material prices.
WHAT SHOULD I DO IF MY LANDLORD INCREASED MY RENT ABOVE 10% AFTER THE NORTHERN CALIFORNIA FIRES?
If your landlord increased your rent above 10% in the 30 days after the Northern California Fires were declared a National Emergency (October 16, 2017), then call the offices of Kornblum, Cochran, Erickson & Harbison, LLP. Violation of the price gouging statute are subject to civil enforcement actions including civil penalties of up to j$5,000 per violation, injunctive relief and mandatory restitution. In addition to these penalties, if there is a pattern and practice of a particular landlord increasing rents after the emergency, consumers are protected by the Business and Professions Code (Section 17200 et. seq.) as well.
Due to the fires in Northern California, we are seeing an upsurge in identity theft. You need to be aware of how to spot it, what to do about it now, and how to document what you’ve done to protect yourself in the future.
Imagine this – In two years’ time, you are told that you OWE FEMA $34,000 for a small business loan that you took out in the fall of 2017. You are REQUIRED to pay this back. But wait, you say. I never applied for a loan at all!
Identity thieves will use your address and possibly your Social Security Number and Date of Birth to obtain a Small Business Loan (SBL) from the government, then take the money and default on the loan leaving you holding the bag.
WHAT WE ARE SEEING NOW.
FEMA is sending out letters to potential ID theft victims stating that their identities may be compromised. They suggest a number for victims to call to report the potential theft, but this is far from enough to protect your interest.
WHAT SHOULD I DO IF I SUSPECT THAT I AM A VICTIM OF IDENTITY THEFT?
Below is a checklist for what you should do to protect yourself in the event that someone takes out a FEMA loan in your name or if anyone attempts to use your identity to take out a fraudulent loan. Start with a communication log. This is EXTREMELY IMPORTANT. If an agency is going to come after you for an outstanding loan (that you never applied for), you need to show that you were diligent and thorough in protecting your interest, which necessarily protects theirs.
Create a binder or folder – create a binder or folder that contains EVERYTHING relating to the potential identity theft. If FEMA sent you a letter alerting you to the potential theft, make several copies and keep one in your binder.
Communication log – keep track of every single communication you have relating to the identity theft. This includes phone calls, emails, web research and in-person communications and letters. Keep this as the front page of your binder. Example of a communication log is below.
Police report – file a police report with local police or Sheriff’s department. They may be surprised or not aware of how big a problem this is currently, so make sure they are aware. Keep a copy of the report in your binder and make a few other copies in case you need them. Make sure to put this in your communication log.
Contact your bank(s) and give them a copy of the letter from FEMA if you have one. Alert them to the potential for ID theft/fraud. Put a temporary freeze on any accounts you don’t use often. If you are really concerned about theft of your bank account, create a new one and close out the compromised one.
Contact your credit card companies and alert them to the possibility of ID theft so they can go on high alert for unusual charges. Make sure they know you are a victim of the Northern CA fires and that you may have unusual charges if your home has burned down, but let them know where you are. When you get credit card statements, look through them to spot unusual or unauthorized charges and bring them to the attention of the credit card company. Put a freeze on, or cancel, any cards you are not using.
Contact the Federal Trade Commission at www.consumer.ftc.gov. They will take your information and help you put together a plan to recover from identity theft.
Contact the Social Security Administration. The wait at local offices is usually astronomical, so consider going online. Report misuse of your SSN. If the theft is bad enough, you may need a new social security number. Go to www.ssa.gov.
Check your credit report. If you get debt collectors trying to collect a debt that is not yours, this is where your binder comes in handy. Give them copies of the FEMA letter, if you have one, your communication log, the police report, proof of freezes on your accounts and anything else you have collected on the way that may be helpful. You will need to write a letter to the debt collection agency within 30 days, explaining that you are a victim of identity theft and that the debt is not yours.
Keep copies of every letter that you receive or send and put them in your binder.
|DATE||NAME OF AGENCY||NAME OF PERSON||CONTACT INFO||NATURE OF COMMUNICATION|
|11/13/17||Bank of Who’s Got Your $$||Jenny Lottadough||(800) HELPMEE
|Close checking, open new account. Freeze on savings account. Was told to send a copy of FEMA letter to her supervisor, Joe Noname|
|11/16/17||SR police dept||Officer Canihelpyoumaam||SR police dept
|In person, filed police report and attached copy of FEMA letter.|
Kornblum, Cochran, Erickson & Harbison, LLP
Rachael Erickson is an experienced Civil Litigator and Family Law attorney in Santa Rosa, California. With 16 years of experience and four years as managing partner of the Santa Rosa Office, Rachael offers personalized strategic advice and strong legal skills to assist each client with their specialized legal matter.
One of my biggest complaints is that some lawyers (and perhaps clients) just do not get it—that it takes considerable effort and preparation to make the mediation process work. It takes:
If this is done—and it should be if counsel’s representation in mediation is to meet professional standards—then there will be a full discussion and exchange of information before and during the mediation so that the chances of settlement increase.At that time, it seemed to me that mediation had a distinct advantage because it a) brought all parties together face to face, b) involved a neutral who could be a facilitator and an evaluator, if needed, c) was a fixed process for negotiations rather than a haphazard effort to try to settle a case directly, and d) would involve principals or persons who were present who had a direct interest in resolution (e.g. the parties, their appointed representatives or their insurers).What I am hearing now, however, is that mediation is not always the preference and some are finding mediation is not preferred. In part it is because of the cost and in some cases, because one side or the other does not take the process seriously and is not prepared. Except with ADR programs sponsored by a court system, which are at no cost to the parties, mediations are pricey in many cases. Sure, big cases with multiple parties with a lot at stake might be desirable because the costs can be shared and the mediator is needed to isolate on the moving parts and get a global deal done.So, how do we ensure that the mediation process will work in the average mid level lawsuit? Here I elaborate on the bullet points from above:
One of the important items I have on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I may ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome, if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.
My rule is that I send the mediation briefs out to counsel and the mediator (email and/or hard copies) two weeks beforehand. Because I am usually representing a plaintiff, I need to be sure to get the mediation statement with my demand in time for the defendant(s) to evaluate my client’s position. And it needs to be complete, a “mini” claims file with all supporting documentation. Last minute submissions of additional specials, and thousands of dollars of additional medical bills — does not allow a defendant to review all the relevant information and seek authority so that settlement can be fully explored at the mediation. That won’t happen if the statement is submitted 5 days before the mediation is to take place. Late and incomplete submissions understandably puts a defendant in a bind in its efforts to settle, and only delays the process. Also, if you email the mediation statement to opposing counsel, then it is easy to forward them on to a client or insurance carrier.
From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and reports obtained. That has to be done well in advance of the mediation date. This is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process. Plaintiff should serve a mediation statement at least two weeks ahead of the mediation date. More time is even better. Anything less than this is likely to result in a wasted day.
Be prepared to be an active participant in the process: Be professional, meet and greet the other side and make sure all attending have met you and your client and exchanged greetings. There is no reason to be angry, hostile, or defensive. Just be a good participant in the negotiation process and see if you can get the job done – closure for you and your client.
 Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbison, LLP, with offices in San Francisco and Santa Rosa, California. He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys. Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow. He is a “Top 100” Trial Lawyer, and is a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury). He has been a Super Lawyer each year since 2006. He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Third Edition released for 2015-16. He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure. You can order his latest book at: http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/Negotiating-and-Settling-Tort-Cases-Reaching-the-Settlement-2015-ed/p/100252838; See also the review of his book: http://litigationcommentary.org/Miscellaneous/guy-o-kornblum-book-review.html. His firm’s website is www.kcehlaw.com. Mr. Kornblum is a strong advocate for mediating his client’s cases before going to trial or arbitration.
 See G. Kornblum, “Research Confirms Negotiated Results Superior to Going to Trial,” San Francisco Attorney (San Francisco Bar Association, Spring 2009), which discusses the study by Dr. Randal Kaiser of Decision Set in Palo Alto, California, and which compares from both the plaintiff and defense side the statistical chances of doing better that what a settlement presents.
Those who suffered property losses in the Northern California wildfires are no doubt looking to insurance coverage to restore the damaged property. Most of us never look at our insurance policies until we have a loss and claim. That means there may be some surprises as to what you have or do not have in terms of coverage. Here are some thoughts:
Do you come to a full stop at a stop sign? A rolling stop is a violation of California Vehicle Code 21802. Vehicles are required to come to a complete stop when approaching a stop sign and to yield to all vehicles at an intersection controlled by stop signs until it is safe to proceed.
Right-of-Way Rules are published as a matter of public interest and information. It is important to review the Rules of the Road from time to time. The Following is from the California Driver Handbook – Laws and Rules of the Road:
Right-of-way rules, together with courtesy and common sense, help to promote traffic safety. Never assume other drivers will give you the right-of-way. Yield your right-of-way when it helps to prevent collisions. It is important to respect the right-of-way of others, especially pedestrians, motorcycle and bicycle riders.
Respecting the right-of-way of others is not limited to situations such as yielding to pedestrians in crosswalks, or watching carefully to ensure the right-of-way of bicyclists and motorcyclists. Motorists must respect the right-of-way of others by not violating traffic laws, such as failing to stop at a stop sign or traffic light, speeding, making unsafe lane changes, or illegal turns. Statistics show that right-of-way violations cause a high percentage of injury collisions in California.
Pedestrian safety is a serious issue. A pedestrian is a person on foot or who uses a conveyance such as roller skates, skateboard, etc., other than a bicycle. A pedestrian can also be a person with a disability using a tricycle, quadricycle, or wheelchair for transportation.
I recently came across this helpful article by fellow insurance attorney for policyholders, Erica Villanueva at the fine firm of Farella Braun + Martel LLP here in San Francisco. Her summary of recent appellate court decisions includes pointers for attorneys in seeking a Motion to Stay an insurance coverage action:
“When a liability insurer wishes to avoid all coverage obligations with respect to a claim against its insured, it may seek an adjudication that it has no duty to defend or indemnify the policyholder. If the insurer files for such declaratory relief while the underlying litigation is still pending, California insureds will frequently move to stay the coverage action, pursuant to Montrose Chemical Corp. v. Superior Court, 6 Cal. 4th 287 (1993) (“Montrose I”). The purpose of such a Montrose stay is to avoid the risk of prejudice to the insured in the underlying action, if it is simultaneously forced to litigate an insurance coverage dispute.
In these situations, the insured faces a dilemma: Should it immediately move to stay the coverage litigation, or wait until it has filed an answer and cross-complaint? The more principled position might be to minimize any public filings which could force the insured to take positions on factual matters at issue in the underlying litigation. However, a recent California Court of Appeal decision, Great American Insurance Company v. Superior Court, 178 Cal. App. 4th 221 (2009), suggests that the better practice may be to answer and cross-complain before moving to stay … Read the entire article
After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.
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I have a passion for dispute resolution. It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 90’s. He was a master negotiator but at the same time a supreme diplomat. His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they thought they received the Congressional Medal of Honor.
I spent a number of years as a traditional “defense” lawyer in the civil litigation arena. As part of that, I became involved in the early Insurance “bad faith” cases. I tried – as a defense lawyer – the first two first party bad faith cases to go to verdict in California (before Egan was tried in November 1974). There was no bifurcated trial with the financial worth of the insurer not being known by the jury until a “second phase.” That was the first thing the plaintiff’s lawyer wanted the jury to hear before the 1988 legislation allowing cases to be bifurcated to keep financial worth out of the case until a jury decided in phase one that punitives were warranted.
Now as a plaintiff’s (primarily) lawyer I hope I have a keen sense of “worth”. That is, what is the value of the case, and how much is it going to cost to get there? That is a critical assessment from Day One for any plaintiff’s lawyer. Not all cases are “bell ringers” with high 6 or 7 figure potential – real potential, that is.
I hope I carry a bit of Dad’s approach in my practice. I fervently insist on early evaluation, negotiation and even mediation of disputes. There are many reasons why. A primary one is that in my experience an early resolution means a larger net recovery for a client at a time when the money means more and can do more for the client at that point. Indeed, clients often ask me early in our discussions, “Do you think you can settle my case?” They are not enthusiastic about going through a trial, possibly an appeal, and waiting years to – hopefully – get a monetary recovery.
Key to any lawyer representing clients in civil litigation is the skill and insight to look down the line and see if it is worth all the hard work that a case requires. It is imperative that both sides work up the figures so they can focus on where the point of a “best” result lands. Maybe an early discussion about resolution is worth a try to see if the financial risk and emotional turmoil for a client can be avoided by a resolution using the diplomacy my Dad used to get a “just” result.
Guy O. Kornblum has been a civil trial and appellate lawyer for over four decades. He is the author of “Negotiating and Settling Tort Cases: Reaching the Settlement”, published by Thomson West and the American Association for Justice (rev. 2017).