“Ye shall know the truth, and the truth shall make you free”

Thomas Girardi told the Association of Business Trial Lawyers recently that juries are no longer asked to evaluate facts, but only philosophical questions. It has simply become too expensive and too risky to take cases to trial where both sides can evaluate the chances of proving liability and damages at anything better than 50/50. For that reason, only three to four percent of civil cases filed in Los Angeles get to trial. The rest are settled or won or lost during motion practice in the course of litigation. The corporate attorney will help you if you face any employment issues in a business and corporation.

The result of this phenomenon is that there is a growing cadre of career litigators that will never see a trial court, never participate in selection of a jury, and never become acquainted with the appellate courts. Most of those lawyers, however, will have extensive experience in mediations, settling 97 percent of their cases, and often referring to those few that can’t be resolved to “trial counsel” within the final 30 days before trial.

While lawyers are asked to evaluate cases by clients, they are often “evaluating in the dark,” according to a November 2, 2010, article by Ralph B. Saltsman, Stephen W Solomon and Stephen A. Jamieson in the Los Angeles Daily Journal. What’s worse, according to a study called “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes,” published in the May 2010 Law and Psychology journal by the American Psychological Association, they usually get it wrong.

That study “showed clear evidence of unrealistic litigation goals'' among lawyers by 44 percent in an extensive study of 481 U.S. lawyers on both sides of civil and criminal cases that were six to 12 months from trial. Only 32 percent of lawyers’ predictions turned out to be correct, leading clients to rely upon essentially unreliable predictions—and that was only as to whether the verdict would be in their client's favor, not accounting for the actual dollar value of the case once in the hands of 12 jurors.

Recap: Confidentiality provisions in California mediations are strict and absolute

In the 2011 California Supreme Court case, Cassel v Superior Court (2011) 51 Cal.4th 113, 119 Cal.Rptr.3d 437, the plaintiff engaged in a series of conversations with his lawyers about the valuation of a trademark infringement claim in preparation for a mediation hearing. None of the attorney-client communications that plaintiff later tried to compel his lawyer to produce as evidence took place in the presence of a mediator.

After the settlement, which did take place at the mediation, Cassel claimed he was coerced into accepting an offer that was below the actual case value and sued his attorneys for breach of fiduciary duty and malpractice. In discovery, the attorneys refused to produce evidence of the conversations between lawyer and chent, claiming the mediation privilege extended to “anything said...for the purpose of, in the course of, or pursuant to mediation.” The trial court agreed, the Appellate Court reversed and the Supreme Court, after carefully balancing the benefits of confidentiality in mediation as against the potential of shielding attorneys from liability to clients for advice given in mediation, gave a win to confidentiality. I think they got it wrong.