Wednesday, June 24, 2015

The Difference Between Mediation and Arbitration

The Morgue File

So you need to resolve a legal dispute and must make a choice between these two alternative dispute resolution mechanisms, While the basic differences between mediation and arbitration lie in methodology, these differences may also affect the ultimate outcome of your dispute. Therefore, it is helpful to know not only the basic differences but also the pros and cons of those differences.

In the most basic language, a mediation is a settlement while an arbitration is a decision on the merits of the case. While both are considered alternative dispute resolution mechanisms in that both avoid a full trial, including the costs of the trial, you must prepare for each differently.

In a mediation, both sides of a dispute meet with a mediator who attempts to broker a settlement of the matter. It is usually more informal than an arbitration and also less costly. Usually, mediation is a good tool to use in situations where the parties are not too far apart in their demand and offer to resolve.

In a mediation, the parties agree on the mediator based on the mediator’s experience with their type of matter and on the mediator’s reputation for bringing matters to resolution. A mediator is often, though not always, a person outside the court system. The mediator will inform the parties regarding what sort of briefing of the issues the mediator would like to see prior to the date of the mediation. Some mediators want a full briefing of a case’s strong and weak point in advance of the mediation. Some do not.

Often the mediator welcomes both sides, but soon separates the two sides and takes turns meeting with the parties individually, pointing out the strengths and weaknesses of each side to attempt to move both sides closer to a settlement figure. A good mediator can listen well to both sides and can also lean on both sides to procure a settlement.

If the two parties cannot be sufficiently swayed, a resolution may not occur at this stage of the litigation. This has no effect on any issue in the continuing litigation.

An arbitration is an evidentiary hearing in a less formal setting than a court room. Its outcome may be a final resolution of the matter or it may be “rejectable” by one or both parties depending on the agreement of the parties prior to arbitration.

Much like a judge, an arbitrator is a finder of fact. He or she will decide who “wins” and how much in damages that side will obtain. That then becomes the order of the court in the civil litigation and the matter is then resolved. An arbitrator needs to be able to listen well, but does not need any negotiating skills.

An arbitrator should know the area of law at issue quite well. Most arbitrations occur in an office, but with a full presentation of briefs, testimony and other evidence. The presentations are often informally done. An arbitrator will take in all of the evidence and issue a written decision within a specified time.

Because more evidence is produced at arbitration, it is usually more costly than mediation. An arbitration can take several days if a matter is complex. A mediation seldom takes more than one day.

In addition, a mediator often “splits the baby in two.” It is often said that no one is happy with a good settlement. And that is often true. The defense usually has to pay more than is desired and the plaintiff usually has to take less than is desired. That is the nature of settlement. Mediation is often best for cases where both sides have weaknesses in their cases.

In an arbitration, the fact finder makes an award based on the legal and factual issues. There is no splitting of the “baby” in this case. Arbitration is usually more successful later in the litigation as more information is obtained regarding the strengths and weakness of the case. It is often used with success when a case is strong with few weaknesses.

copyright/all rights reserved Audrey Howitt 2015

Tuesday, February 10, 2015

Why and How to Develop Rapport with your Estate Attorney

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Illustration by C[yrus] Fosmire and/or Howard E Smith which appeared in McClures Magazine with The Griswold Divorce Case by Frederic Taber Cooper, representing a man dictating to another an incriminating note, circa 1910. In the public domain in the United States

We will all die. It is merely a question of when. If we are lucky and smart, we will have some assets to pass onto loved ones after we die. But families, all families, have their quirks and difficulties. Poor family dynamics inevitably emerge upon the death of a loved one where beneficiaries are concerned. And these family dynamics can lead to protracted litigation. However, some of these dynamics can be eliminated or alleviated if we use the proper estate planning tools.

Estate planning attorneys are very knowledgeable regarding the process of probate and how to avoid probate. This question of whether to probate an estate or whether that estate should pass via trust remains a fundamental one. The poorer the family dynamics, the more important it becomes that a court oversee the disposition of an estate. That may mean using a will and not a trust as the primary dispository document. This may be mitigated by the tax consequences and size of the estate at issue.

If an attorney is made aware of family dynamics, they attorney can make recommendations regarding tools to avoid protracted litigation post-death. Such recommendations can include a third party to handle distribution to avoid infighting; or the use of “no-contest clauses” to deter a court battle.

Many estate planning attorneys will have clients fill out forms that address the question of assets and their value, children, marriages, divorces and the like. In some ways, these forms expedite the planning process. From these tools, the attorney is likely able to gather crucial information about the size of the estate and likely tax consequences upon death.

These forms are less likely to address critical information such family dynamics or other special needs such as whether a potential beneficiary is in need of special help such as a special needs trust or a guardianship. This does not mean that they are not attuned to the special needs that clients have.

An attorney will usually ask questions of a more sensitive nature during a consult with the client. It is in the client’s best interests to be forthright and honest regarding all matters that the client believes are important and will affect the disposition of property upon the client’s death. If the attorney doesn’t ask, the client must be willing to state their concerns openly with the attorney.

In the reality of an attorney’s practice, he or she will only have a specified amount of time to spend with any client before the next appointment. It may take more than one appointment for all matters to be resolved to the client’s satisfaction. Do not be afraid to ask for more time and do not be afraid to ask questions of an attorney.

Most problems in estate planning occur not from poor drafting of documents, but from crucial information being withheld, often in ignorance. If you as a client feel the matter is important, then it usually is. Do not be afraid to raise that issue with an attorney. An attorney would much rather spend time with a client now than spend time litigating the matter later. Remember that you are hiring a person with expertise to help you. Make sure that you address your concerns fully and make sure that you understand fully the product that you are buying. In essence, talk to your attorney.

copyright/all rights reserved Audrey Howitt 2015

Police to be Held Accountable? Perhaps!

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In the public domain in the United States
Waage als Sinnbild für das Bemühen um Gleichgewicht zwischen dem Universum und der Welt der Menschen (Makro-und Mikrokosmos)

The debate over police tactics continues to rage across the country in the wake of shootings, demonstrations, grand jury deliberations and mounting outrage from protesters and police alike. It is also being played out in Albuquerque, New Mexico--not a place often found in the same sentence as Ferguson.  

In this unlikely town, the district attorney has filed murder charges against two officers involved in the shooting death of a homeless man last year.  The Albuquerque Police Department has been the focus of repeated protests over police-involved shootings. Albuquerque police shot and killed 27 people between 2010 and 2014, according to records kept by the Albuquerque Journal. 

Charges follow the shooting death of James Boyd last March.  According to police, Boyd was shot holding two knives. However, film footage from one of the officer's mandated body cameras appears to show Boyd turning away from officers just before the officers opened fire. 

Unlike the typical grand jury proceedings which are veiled in secrecy and filled with questions, these criminal charges were filed and subject to a preliminary hearing, which is part of the public record. 

While there is debate on both sides of the issue regarding the use of force and what is necessary and appropriate, the public at large is calling for answers.  This case is to follow. It may signal a change in the handling of police shooting across the country.

Wednesday, May 28, 2014

What Happens At a Deposition

A deposition can be an intimidating matter, especially if it is the first time that you are being deposed. Knowing what to expect can help. The purpose of this article is to help the lay reader understand what a deposition is, how it functions and what you might expect at a deposition if you are a deponent. A caveat—even with this information, if you have been served with a deposition subpoena, you should seek the advice of an attorney and engage an attorney to represent you at the deposition.

Civil litigation is a method used to sort out the liability for purported wrongs against people. It is a type of civilized warfare. The people involved are dressed nicely. They often smile at you when asking the most damaging questions. A deponent’s testimony is often critical to the resolution of the matter at hand, but it is important to understand what is being asked of you, and to answer truthfully to the best of your ability within the context of your attorney’s advice and representation of you at the deposition.

Civil litigation involves a lawsuit, the parties to the lawsuit, the court system where the lawsuit is filed, and the evidence upon which the lawsuit is based. As part of the process of civil litigation, the parties to the lawsuit engage in a process called discovery.

Discovery is a process consisting of a number of tools that enable opposing parties to “discover” what evidence supports a plaintiff’s causes of action, or alternatively, what evidence supports a defendant’s defense against those causes of action. A deposition is one such tool.

A deposition is testimony, even though it is taken in a relatively informal setting, usually an attorney’s office. It is a series of questions and answers to those questions. If you are the deponent- the person whose deposition is being taken- your testimony in a deposition is given under oath and has the same force and effect as if you were giving testimony in a court of law.

Because your testimony has the same force and effect as that given within a courtroom, it is important that an attorney help you prepare for a deposition. In preparation, an attorney can help you learn what to expect, what issues may be covered during the deposition, and what might be considered to be “objectionable” questions.

As an attorney, I have taken and defended many depositions. It always amazes me how much deponents are willing to help the deposing attorney. Deponents will often give long rambling answers to simple questions. They will sometimes try to answer questions that are quite complex. They will even try to answer questions that they do not really understand.

If you are the deponent, you can expect your attorney to be present. Opposing counsel will also be present. Opposing counsel will be the person asking questions. Everything said at a deposition will be taken down by a court reporter. Some depositions are videotaped.

Once the deposition is completed, the court reporter will transcribe your testimony into a booklet form. A deponent is then given an opportunity to review their testimony and make changes to it. However, the fact that you, as the deponent, felt the need to make changes to your testimony can be used by opposing counsel at a later trial or other hearing, and this can damage your credibility as a witness. Therefore, it is important that all deponents give their most accurate testimony during their deposition.

Therefore, if you as a deponent do not understand a question, do not answer it. It is better to tell the deposing attorney that you do not understand a question and ask the attorney to rephrase it than to try to answer a question that you do not understand. Likewise, a deponent should answer only the question that is being asked. If the question requires a simple yes or no as a response, that is all that should be given. A deponent should wait until further questions are asked by counsel and should refrain from providing explanations when a simple yes or no will suffice.

Doing this will also give your attorney time to object to a question if the question is legally objectionable. While it is beyond the scope of this article to discuss all of types of objectionable questions, it is important to allow your attorney time to lodge appropriate objections to these questions to preserve those objections for trial later. Therefore, give your attorney time to fully state his or her objection for the record. Your attorney will then tell you whether or not to answer the question.

At all points in the deposition, it is important to do as your attorney instructs you to do. If you need to speak to your attorney, request a short break and speak to your attorney during that break. This will preserve the confidentiality of your conversation.

Some depositions involve the production of documents at the deposition. If yours is such a one, than you can expect that documents will be identified on the record by the deposing attorney and that you will be asked questions regarding those documents. These types of depositions are often longer and more tedious for the deponent.

Depositions can vary quite a bit in length. Simple witness depositions can and often are conducted quickly, sometimes within an hour or less. The more complex the matter being litigated and more central the deponent to the matters being litigated, the longer the deposition. Some depositions take several days to complete. Breaks, including a lunch break are included. If you feel the need to take a break, do not be afraid to say so.

Witness fees for non-party deponents are provided, usually at the deposition. Therefore, if you are neither the plaintiff nor the defendant, there is a small amount of compensation provided to you by the side that has required you to attend. This amount varies somewhat from state to state, but is designed to offset the inconvenience of attending a deposition. If you are a party to the action, no such witness fee is provided.

For some witnesses such as doctors, psychotherapists, and such, the witness fee may be greater, depending upon whether the witness has been named as an expert witness by one side or the other. Likewise, treating physicians, psychotherapists and the like may have special duties to assert the confidentiality of their clients. In all such circumstances, that witness must seek legal advice before contacting the attorney who is requiring their attendance.

Legal advice extremely is important in the preservation of rights at a deposition. Therefore, if you are required to attend a deposition, in all situations, you should seek the advice of counsel. Do so early. Meet with your attorney prior to the deposition if at all possible. And remember to follow the advice given by your attorney both before and during your deposition.

copyright/all rights reserved Audrey Howitt 2014

Thursday, May 22, 2014

Should Lawyers be Required to Provide Pro Bono Services?

In a word, the answer is" yes." "Much is expected from those to whom much has been given." Lawyers, like doctors and other professionals, have been given much. They have had access to education. They have specialized knowledge. And although lawyers, like doctors, have worked hard to get through school and to practice in their respective fields, they also have the ability to earn much by virtue of their education.

The average attorney, if he or she is charging by the hour, now charges over $250.00 per hour. Most attorneys work a great deal of hours over the course of any given week. Attorneys generally work longer than an eight hour day. Some of that time is billable, meaning the attorney is able to charge their client for that time. Some is not. Most law firms have a billable hour requirement. Many attorneys in larger firms must bill 2000 hours per year. We can all do the math. It adds up to a lot over money over time.

I believe that attorneys are justified in requesting their fees. They work hard, they have specialized knowledge, and not all of their work is pleasant. A court trial is just short of a civilized form of war. Lawyers, like doctors also have high student loans and large overhead costs for their offices. It costs over $100,000.00 to go through three years of law school for tuition, books and living expenses. And law school is grueling. The smart and the strong survive.

However, it is true that in the United States, the poor, even the middle class, have little or no access to legal help when it is needed. Often by the time help is needed, the situation is dire and there is no money available to pay an attorney. Often times, injustice is tolerated in our society because we just accept that this is acceptable. It is not acceptable. We only need to take a tour of any county jail to see that in the criminal justice system, those with money manage to stay out of jail, those people without it end up in jail. Some of this is ameliorated by "free" attorney services provided by local counties. In reality, the county jails remain overcrowded with the "have-nots." More, much more help is needed.

Likewise, many civil injustices go unprosecuted. It costs over $100,000 to get to trial in the average civil litigation matter these days. Most people cannot afford to have their wrongs addressed. Some take out loans against their real property to try to fund legal work. Some lose their homes, which represents the average person's life savings.

So, a crisis exists within the legal system. It will take more than one change to repair the system, asking that attorneys give of their time is as much a moral issue as it is a societal one.

I am not advocating that attorneys be necessarily mandated by law to provide pro-bono services. Professional associations can provide access to such attorneys and these attorneys can perhaps receive a tax benefit or be able to write -off some portion of their student loan debt in exchange. This would ease the burden for both the attorney and for society. Some such programs are already in place to ease student loan burdens for those who work in non-profit organizations for a period of time. Thus, precedent exists. It is merely a matter of providing the mechanism.

Tuesday, May 20, 2014

How to Write a Legal Memorandum

Legal memoranda, like legal briefs, are usually written in a formulaic fashion, following certain rules that make is easy for a judge or other legal professional to digest the document quickly. Legal memoranda usually provide the underpinnings for most legal briefs. So, whether you need to prepare a memorandum or brief or merely need to decipher one, it may be helpful to know that most memoranda and briefs follow the same format. A very simple legal brief format follows this discussion.

The format is called IRAC, which stands for Issue, Rule, Analysis/Argument and Conclusion. The following further explains the format.


In a clear and succinct manner, state the issue at hand. The issue can be formulated as a heading such as: “Whether the statute of limitations prohibits the cause of action for negligence by the plaintiff.” This may be how you see the issue stated in a legal brief. This heading is numbered and centered on the page as are all the subsequent headings.

In a legal brief, you want to write persuasively, that is, you want to persuade the reader that your way of seeing the facts and the law applied to the facts is the correct one. Thus, you might see the issue stated in a persuasive fashion in a heading, such as “The statute of limitations does not apply nor prohibit plaintiff’s cause of action for negligence.”

Below this heading, you provide the facts that you will later discuss in the analysis section. You state the relevant facts in chronological order as they pertain to the issue being briefed. Leave out all facts that are not relevant to the issue. This is often difficult to do. It is tempting to put in more facts than is necessary or to embroider the facts for the sake of argument. Reserve argument for later and state only the facts that are important to the issue.


Next, you state the applicable rule, also as a heading. A legal memorandum or brief must be well-researched. Each jurisdiction has both statutory law and case law. Some issues are covered only by statutory law. Some are covered only by case law, and some are covered by both. In the case of a statute of limitations, California statutory law and case law cover the issue and both must be examined.

The rule is stated as a heading and it may state for example: “Code of Civil Procedure Section 200000 doesn’t act as a bar to plaintiff’s action for negligence as the common principle of discovery tolls the action.”

The applicable law is quoted in the paragraph or two beneath the heading and then case law interpreting the law may also be quoted. This makes a nice transition into the argument or analysis section of the document.


This is the meat of any legal memorandum or legal brief. In this section you argue your position on the issue at hand. This is also often the longest portion of a legal memoranda or brief. It is in this section that you apply the law to the facts at hand to determine an outcome.

Legal memoranda are usually prepared before any briefing is done for the court on a case. They are meant to be informative to the attorney and client rather than persuasive. Thus, often the legal memorandum will contain the most important statutes and case law both in your favor and that which may be argued against your position. In the memorandum you will look at the facts and the nuance of the facts cited in the cases to determine if a particular case cited is applicable. More importantly, you will prepare the analysis that will later persuade a judge that they should decide the issue in your favor.

In this section, all legal authorities cited within the legal memorandum or brief are cited within the document. While it is beyond the scope of this article to explain all the rules regarding citation, you should know that citation rules are quite formalized, precise and that they vary depending upon the jurisdiction in which the matter is pending.


In the conclusion, you summarize the argument and ask the court again to find in your favor. This section should be short and concise.

Sample legal memoranda[i]

A. Whether the statute of limitations prohibits the cause of action for negligence by the Plaintiff

Plaintiff A first purchased and used Defendant B’s product for the control of facial wrinkles on or about December 10, 1979. Plaintiff A continued to purchase and use said product on a fairly continuous basis for the following 20 years. Plaintiff A discovered that she had contracted skin cancer on her face in all the areas where she had used Defendant B’s product on or about June 25, 2002 when diagnosed by her doctor. This action was filed on September 20 2002.

B. Code of Civil Procedure Section 20000000 does not bar Plaintiff’s action for negligence as the common principle of discovery tolls the action.

Code of Civil Procedure Section 2000000 provides a one year period of time to file an action for negligence within this jurisdiction. The case of Swinerton v. Coft (2001; made up jurisdiction, 241 jurisdictional reporter, 61) discusses the above Code of Civil Procedure Section and provides that the limitations period barring any action for negligence does not begin to accrue until the damage is discovered. (Swinterton, p.66)

C. Swinerton is the applicable law and mandates that the statute of limitations is tolled until the damage is discovered. Plaintiff A is well within the mandated time to file.

The facts of Swinerton are very similar to those at issue in this case. In Swinerton like here, the Plaintiff used a topical skin product which was discovered to have caused damage some 5 years after use. In Swinerton like here, use was consistent for a number of years. In Swinerton, the court tolled the statute of limitations and the statute of limitations should be tolled in this case as well.

D. Swinerton is applicable and Plaintiff filed in a timely manner.

Swinerton is applicable. Plaintiff filed in a timely fashion and her case should proceed.

[i] All facts and law stated in this article are fictional and are for illustrative purposes only. They should not be relied upon as authorities for any legal position.

Tuesday, April 29, 2014

The One Legal Book Everyone Should Read This Summer

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official portrait

My household is abuzz over retired Justice John Paul Stevens' book, Six Amendments: How And Why We Should Change the Constitution. (Little, Brown & Co.) Run, don't walk to your nearest bookstore or Amazon, and plunk down the $20 or so it will take to buy it.

This is a first. This is the first time a retired Supreme Court Justice has published a manifesto, if you will, on our Constitution. And in my humble opinion, this book, while short, opens a much needed dialogue on the need for Constitutional change by amendment in this county.

The book is short and covers a number of topics, campaign finance, gerrymandering and perhaps the most important, and most controversial, the death penalty and the right to bear arms.

Stevens would add words to the Second Amendment to read, "the right of the people to keep and bear arms when serving in the militia shall not be infringed."

He writes:

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands.

[For 200 years], federal judges uniformly understood that the right protected by the [2nd Amendment] text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.

Going further, Justice Stevens repeats the comment from Chief Justice Warren Burger (1969-1986), about the gun-lobby's campaign to oppose gun control laws because of Second Amendment rights:

“one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime.” [quoting Burger]

He would also end the death penalty, adding it to the prohibitions on "excessive bail and cruel and unusual punishment."

In addition, he proposes the legalization of marijuana. And while this is is some ways less controversial than the right to bear arms, for many, it continues to be a hot button issue,

The process of amending our Constitution is an arduous one.It takes two-thirds of both houses of Congress or state legislatures to propose an amendment and three-fourths of the legislatures to approve it.

Appointed to the Supreme Court by President Gerald Ford in 1975, Stevens was considered to be a moderate in his views. In fact, On the Seventh Circuit Court of Appeals, John Paul Stevens had a moderately conservative record. Over the his term as Justice, the Supreme Court moved toward the right so much that by his retirement, Stevens was considered by many to be a liberal. However, as late as 2007, when asked, Stevens still considered himself to be a judicial conservative.

Agree or disagree, Justice Stevens opens the door further discussion on these issues at a time when for many, these issues are in the forefront of family discussion. As we seek to make our own opinions known, it is important to become as educated as possible on these issues to add something of value to the conversation beyond the usual bluster.

copyright/all rights reserved Audrey Howitt 2014