[This presentation is an expanded discussion of the first of four guidelines offered in a previous article titled “Getting to the Bottom Line-Guidelines for Achieving Success at Mediation.”]
How many times in a civil case have you gotten to the discovery deadline and wished you had another two weeks to get your work done? The same sense of panic occurs when it is almost time to designate your expert witnesses. This can also happen when you are on the eve of a scheduled Mediation. The solution - get your work started well in advance so to avoid the dread of Civil Procedure deadlines.
Evaluate Your ADR Options
When a new file comes into the office, the handling attorney should determine if ADR is appropriate. Although many attorneys go into automatic discovery mode, consideration for ADR should never be overlooked. There is no reason to wait for the Case Management Conference to decide the suitable ADR. The Santa Barbara Superior Court CADRe program allows attorneys to take the initiative
early on and posture a case towards ADR.
The CADRe website (sbcadre.org) lets you review potential mediators for both limited (less than $50,000.00) and unlimited cases (in excess of $50,000.00). Currently, there are over 25 mediators for limited cases and nearly 50 for unlimited cases. In discussing ADR with your adversary, should you find that they are unfamiliar with the CADRe program; the website will educate them quickly. It allows those who are not experienced with the CADRe program to view all panelists including bio information and fee rates.
Counsel is also entitled to select a mediator from outside the CADRe panel for a Santa Barbara Superior Court case. Once counsel has made the decision to pursue ADR, a stipulation needs to be filed immediately in order to take the case off the court “radar screen”. In effect, there is no reason to wait for a Case Management Conference to determine if ADR is appropriate. Evaluation for ADR options should be done early to avoid unnecessary costs and expenses.
Gathering Information on a New File
Many offices use templates to introduce the law firm to the client. Those first contacts with the new client will show the amount of work required to keep the case active and updated. A cooperative client provides accurate and complete information and, sometimes to a fault, contacts the handling attorney too often with regard to status. On the other hand, the uncooperative client, who never
returns phone calls, never returns mail and never makes themselves available for scheduling, needs to be given extra attention so that deadlines are not missed.
One method to gain control of the client in the gathering of information is to present the initial contact letter with a questionnaire based on potential discovery. Sending a client a multi page questionnaire fashioned after Judicial Council Interrogatories and common CCP. 2031 document demands can speed up the preparation of future discovery. Another method of expediting discovery is to allow for voluntary record release instead of subpoenas. The release can be specially tailored for the facts of the case for the purpose of privacy and relevance.
Litigators should expect the uncooperative client and err on the side that the client will be difficult. This will make the receipt of information from a cooperative client all that more rewarding. Office templates customized to future discovery and using voluntary record releases will save countless hours of work. This will help keep the case positioned for ADR.
Law & Motion and ADR
In each and every case there is always the decision if you should use discovery or dispositive law and motion. Certainly, the advantages are that you seek the relief of the court to obtain compliance or to decide a case in your favor. The disadvantages are that these motions can set the stage for your case to become a dog fight defeating any initial intentions of pursuing ADR. There are alternatives for this wrestling match.
Currently, in the Ventura County Mediation program, if parties elect Mediation, the court stays all discovery except that allowed under CCP. §94 (Economic Litigation). The Ventura court expects the parties to complete Mediation within 150 days. If the case does not resolve, the court grants the parties additional discovery beyond the CCP. §94 limit. It is often difficult to get this same
cooperation from your adversary. However, placing limited discovery in a stipulation for Mediation or Arbitration should always be proposed. It has the benefit of controlling costs, expenses and time preparation for ADR.
If discovery or dispositive motions are necessary, don’t overlook procedural requirements in the eagerness to seek court relief. In motions to compel with sanctions, the notice will sometimes lack the sanctions requested or fail to instruct the court on who should be sanctioned. In dispositive motions, litigants many times fail to set out adequate evidence or neglect essential pleading
procedures resulting in a court denial. The end result is that the attempt to gain the upper hand by law and motion turns out to be a costly and expensive effort forcing the parties to be further apart from settlement with ADR.
Once the case is opened or new in the office, handling attorneys should take a good look at all ADR options. Don’t wait for a Case Management Conference to get assigned to ADR. The CADRe program allows you to take the initiative. Custom office templates can speed up the gathering of information. Limiting discovery by way of a stipulation can control costs and expenses. Finally,
discretion should always be used with law and motion so to prevent a case from backfiring if you truly want to resolve it with ADR.