Conflict Resolution

Advanced Problem-Solving Strategies

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Last week I heard Randall Kiser talk about research he and others have done on so-called “decision error” in taking cases to trial. This study got a fair amount of publicity when it was first published, and is frequently cited by judges and mediators in attempting to persuade parties to litigation that they are generally better off accepting a settlement than in pursuing cases to trial. This research found that about 60% of the time, plaintiffs who reject the defendant’s best settlement offer get a worse result at trial. Defendants only guess wrong about 25% of the time, but tend to lose a lot more money when they do. Even though I agree that parties are usually better off settling […]

I have nothing substantive to add about the ups and downs of seven years of litigation in the Barbie vs. Bratz doll wars case. I’m not going to do an analysis of the legal issues in the case, even though they are somewhat interesting. All I want to do is remind people that this is the sort of thing that happens in litigation. Mattel won a $100 million judgment against its rival MGA a couple of years ago. That judgment was reversed last year, and in a new trial, MGA this week won an $89 million jury verdict against Mattel. In the same case. Was it worth it? MGA may have won the case (of course it’s not over yet), […]

Now that another one of those trials of the century that Los Angeles seems to enjoy about once a decade has concluded (I’m talking about the McCourt divorce trial of course), everyone wants to know who won.  Technically, since the judge has not ruled yet, and still has 90 days to issue a decision, there is no winner yet.  But the real answer is that neither side won, or perhaps that it doesn’t really matter all that much which side prevails on the legal issue before the court: that issue being the meaning and enforceability of a document purporting to grant Frank McCourt sole ownership of the Dodgers. How can I be so cynical as to suggest that it doesn’t […]

I spent the day in the jury room at LA Superior Court downtown today, doing my one day of service.  The chairs were comfortable, the TVs were (thankfully) off for some reason, the wifi was free, and the court personnel were friendly and almost entertaining.  The court makes the process about as pleasant it could be for an experience that feels like being institutionalized for almost 8 hours.  And the best part was that I did not get called to a single courtroom all day, so was excused without even being subjected to voir dire.  A large proportion of my fellow jurors also escaped without being asked to serve.  This reminded me that the beauty of jury trial sometimes is […]

As trials in civil cases have become increasingly rare, in part due to the rise of ADR, we sometimes forget that trials can serve a profound purpose.  There are few processes that can “decide” a contested factual issue like a trial. Below is a video of David Boies debating Tony Perkins, head of the Family Research Council.  Boies’s explanation of  what happened at the recent Proposition 8 trial, makes me proud to call myself a trial lawyer, and reminds us of what courts can do at their best.  Even if you think the courtroom was not an appropriate place to determine the constitutional validity of a state initiative denying gay people the ability to marry, you have to admire trial […]