We’re on the way back from a wonderful vacation break in Washington’s San Juan Islands. Note to self: come back here soon! A highlight was two sails on a very cool, 75 year-old, wooden boat (an Alden) that our captain had restored. http://www.sanjanclassicdaysailing.com/ When he learned we were lawyers, and then we got to know each other a bit better we heard a story about his encounter with the legal system that left him soured. To make a long story short, he was taken advantage of in a business deal, hired a lawyer and brought a lawsuit. A jury trial ended in a verdict for the bad guy – who lied on the witness stand. I know we just heard our captain’s side, but after spending two days with him on the boat, I’m sure he was telling the truth. I know we know only a small piece of a long story, but it’s clear that an interesting, hard working, honest guy’s encounter with our legal system left him bitter. So a guy who didn’t go to college, who built up a business and then ultimately lost his investment because of a greedy agent gets to pay hundreds of thousands of dollars to cover the bad guy’s legal fees. Should getting a case to trial cost that much? Might a mediation have helped?
I’ve been involved with Women’s Transitional Care Services – which operates Lawrence, Kansas’ only safe home for victims of domestic violence since January of this year. Recently I was elected president of the board of directors. I often feel as if I’m bouncing back and forth between two worlds. Jobs are important, the types of disputes I’m mediating involve real issues. But the women and children who come to the shelter because they have nowhere else to go, who are betrayed by a husband, father, who are hurt and scared. Wow. I heard Friday that the police dropped a woman and her children at the WTCS offices to be escorted to the safe home with only one suitcase. Thank goodness there’s a place for them to go. I think about what a strange world the court system can seem like to employers or employees involved in litigation. But generally they have legal counsel to explain it to them. Not so for a woman who doesn’t even know where to start to get a protection order and can’t afford a lawyer. Thank goodness there’s a place where they can get advice and support. Our organization is in a fiscal crisis. We can no longer survive with the majority of funding coming from grants. Please help! http://www.wtcskansas.org/
Over the years of representing mostly employers but some employees in employment disputes it has occurred to me TIME AND TIME AGAIN that if the case had settled early for what seemed then like an exorbitant amount that the plaintiff demanded a lot fewer total resources would have been expended. Meaning add up what was paid to plaintiff in settlement after summary judgment was filed (let’s say $60,000), plus defense attorneys fees at a pretty serious hourly rate (conservatively, $50,000), out of pocket costs (travel, deposition transcripts, maybe an electronic discovery consultant (modestly, $15,000) . . . Dollars alone make the plaintiff’s $75,000 early demand look like a great deal. Especially when you realize that if $55,000 or $60,000 had been offered it would probably have settled for less. But it’s not dollars alone. Hours and hours of management time have been taken up gathering documents, preparing for and testifying at depositions. The gossip network has been in full force throughout the litigation as the plaintiff keeps in touch with her former co-workers – resulting in lost productivity and some loss of credibility for management. (“Get this – he admitted in his deposition that . . . !”)
Don’t get me wrong – I’m not saying that just because a discharged employee makes noises about filing a lawsuit a company needs to throw money at it. But (as I have often said to employer clients) there’s SOME amount of money that it would be worth to resolve ANY dispute early on – I might ask would you pay $500 if this could be over and behind us? And that answer is pretty much always yes. If the case really doesn’t have legal merit then maybe you can figure out a way to get it resolved for a small palatable amount that allows the plaintiff to save face. And if it’s a case with enough murkiness (or big problems like a terrible document yet to be produced or a critical witness that will turn to Jello) you can’t win summary judgment on (other than state court in Missouri, but that’s a whole other story) then recognize that early on and see if you can reach a settlement that makes sense given all those factors you’ll some day be looking at with 20/20 hindsight.
My friend, mentor and former law partner Susan Hammer (an extraordinary mediator, formerly extraordinary employment lawyer) – http://www.susan-hammer.com/ – in Portland, Oregon alerted me to an interesting study on settlement decision-making. She sent me an article she’d written for the Oregon Bar (available on her website) and gave me rights to borrow liberally. I became engaged and fascinated and ended up writing “Let’s Make a Deal; Settlement Savvy” which will be published this summer in the DRI In-House Defense Quarterly. I’ve spoken on the subject for the Missouri Bar Employment Section and at a UMKC CLE on the subject of alternative dispute resolution. A short article on the subject is also on my website. Bottom line – parties and their lawyers REALLY don’t do a very good job at deciding when to go to trial versus taking the last offer from the other side, it’s costing them a lot of money AND we’re getting worse at making these decisions than 40 years ago, despite enormously greater data to look at.
I opened my own shop – Kathy Perkins LLC Workplace Law & Mediation in early 2008. Ever since I’ve felt I’m at a crossroads in my career with many directions I can go. Sometimes I’m simply taken in one direction through opportunities presenting, other times I take that big first step. A year into this venture and I’m in a good place.
A highlight of my time at Harvard Law School was the famed Negotiation Workshop where I had the privilege of studying under Professor Frank Sander. “Getting to Yes” had just been published and it all just made such good sense to me. Maybe that’s because my mother had spent years reinforcing the idea of putting yourself into another’s shoes. This can be great advice for a litigator, but in my mother’s case it was topped off by the Golden Rule (“do unto others . . .”) which would be way too constraining for a litigator. But when negotiating, it’s another story. If I can just figure out where they’re coming from, what they need, and set a standard of decorum for the negotiation that gets them mirroring my respectful approach to their ideas I’ve made some real progress.
After starting to practice litigation with a large for Boise, Idaho firm in the 80s (20 lawyers) it seemed as if my negotiation training went by the wayside. From the bottom of the letterhead perspective it seemed as if the partners were doing all the cool stuff, including negotiating settlements. Looking back, I negotiated everyday: with my secretary who worked for 3 other lawyers for her time; with the associate on the other side for more time to respond to discovery, with the partner over which issues mattered enough to go into the brief. I could go on and on. Maybe my negotiation training helped?
A couple of years into practice I participated in my first mediation. It involved a product liability case with some serious personal injuries. Our mediator was Susan Haldeman and she was amazing. The partners in my firm representing the defense side (there were other defendants as well) held out pretty much zero hope of a settlement because everyone was so polarized. To be honest, they were also a bit suspicious of a “girl” mediator (this was the 80s, this was Idaho). She was calm, respectful of all parties, empathetic and a sponge for information. She did what no man thought she could do – settle a contentious, emotion-laden case. I decided I wanted to be her when I grew up.
And now, 25 years later, I’m growing up. I tune out those who say how lucky they were to get into mediation back in the (fill in the blank 80s, 90s . . .) since it’s so hard to break in now. The business side of breaking into the field of mediation requires more marketing discipline on my part than building an employment litigation practice ever did. The “taking it to a new level” side of learning how to be a better mediator requires no discipline. I’ve become engaged, intrigued, fascinated. Life is good.