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Lifecycle of a Case, Phase 6 & 7: Mediation & Expert discovery · Coopers' Code

• 0:00
  Howdy, and welcome to another episode of Cooper's Code Life
• 0:03
  Cycle of a Case series where we provide tools and tactics for
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  the different phases of a case. We're compiling all of these
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  episodes into a playlist on our YouTube channel, so head on over
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  there if you want to see them all.
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  One of the things we strive to do at the firm is to have our
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  proactive discovery drafted before we file suit.
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  It allows us to get our notices of DEPO, our request for
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  reduction or request for admission, our interrogatories,
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  our personal knowledgeable depositions.
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  All of those get sent out so that we can claim preference.
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  And it also sends a further message which is this firm is on
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  their toes. Also within the frame of what I
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  would call discovery is summary judgment.
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  Nothing gets one ready for trial the way summary judgement does.
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  I think of it as a way to hold your feet to the fire and to
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  double down on your diligence in terms of being ready for trial.
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  At a certain point in the case, one reaches what one might call
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  formal settlement talks, and these can be a variety of
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  things. These can be conversations back
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  and forth between opposing counsel that can be beneficial
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  to help each side kind of understand where they're coming
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  from. In certain respects.
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  The the most common these days in full scope litigation is
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  mediation. Mediation is done in a the vast
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  majority of cases. They're also mandatory
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  settlement conferences, which are a little bit different than
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  a mediation. Those are ordered by the court.
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  They're usually a little closer to trial.
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  So we'll we'll talk a little bit about the pros and cons of each
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  of these types of settlement approaches.
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  As one gets close to these, whether it's a mediation or a
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  mandatory settlement conference. Another thing to think about is
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  when to send out a, a formal offer to compromise under the
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  Code of Civil Procedure section 998.
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  So let's let's talk about that. And the, the shorthand term is
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  is 998. And this is the tool for what is
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  known as an offer with teeth. So why is it known as an offer
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  with teeth? If you send out a 998 and you
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  beat that number, you get expert costs from the the date of
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  service of the 998 and 10% interest for the date of service
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  for that 998. So to, to put that in context,
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  if you make $1,000,000 policy limit to manned and the carrier
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  fails to pay it, then when the judgement gets entered, let's
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  say that it's two years later that the case goes to trial and
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  there's a verdict and you've had to spend $200,000 on experts.
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  And there's another two years you're getting, you know,
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  $200,000 in, in interest from it and you're getting $200,000 in
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  costs. So that, that 998, because you
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  send it out at that time means that you're getting an extra
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  $400,000 on top of the, the judgement in that case,
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  presuming you, you, you'd be at that $1,000,000 number.
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  That's the upside. The, the downside is the defense
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  can do the same thing. Now they don't get the 10%
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  interest, but they do get extra costs.
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  And so if one ends up doing less favorably, then there can be
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  situations. Let's say the defense sends out
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  a $50,000 formal offer to compromise and it's a defense
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  verdict and they spend $100,000 in costs.
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  Then your client can be on the hook for that $50,000
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  differential. So 99 eights are very tactical.
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  They would involve a fair amount of thought.
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  One take away with 99 eights always take a look at the the
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  Rutter group and the the practice pointers and strategy
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  and cases related to 99 eights. Seems like a new case comes out
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  every few months on 9/9 eights that it needs to include this or
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  it can't include that or it must only go to one party, what have
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  you. So while one can rely on one's
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  practice and expertise to make sure one is not making mistakes
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  related to 998's, typically we like to go through the record
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  group, make sure that that we're meeting all the elements of it
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  so that we don't make a mistake as we want.
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  If we if we beat that number, we want to make sure that it is
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  enforceable. There may be rare tactical
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  situations where one decides that one does not want to do in
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  998. Those are, like I said, they're,
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  they're fairly rare, but they tend to be ones where you might
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  not want the other side to do in 998.
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  So because if you do one, typically you'll get one back in
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  response. So those are formal offers to
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  compromise. Those are something to think
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  about in in the light of formal settlement talks.
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  So mediation with mediation, the things to start thinking about
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  early in the case are if it's going to be mediated, usually
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  the answer is yes. And if so, are there certain
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  people who might be better than others?
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  We tend to suggest the other side.
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  If you have names of people who you really like to work with,
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  please share those with us. In the absence of that, here are
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  five people who we think might be a good fit for this case.
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  Those are not going to be the same 5 people in every single
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  case. We usually try to make sure that
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  we think about the client, the case facts, the venue, all the
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  various elements that might make for one mediator being better
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  than another. Meteor across the board.
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  One of the things we're looking for when we're selecting a
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  mediator is we want someone who has good EQ, meaning emotional
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  intelligence and good follow through.
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  There are a ton of mediators out there now at this stage, and I
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  would say that if there are 100 mediators out there, there are
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  about 10 of them who have high EQ and high follow through.
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  The EQ is important because the mediator is going to be reading
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  the room, both our room and the defense room, and they're going
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  to be interacting with our client.
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  And we want someone who is going to honor our clients experience.
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  And we want somebody who's going to be able to read the defense
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  room and be able to tell who's really the shot caller there.
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  Where can the pressure be applied?
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  The follow through piece is because a lot of cases don't
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  resolve in the first mediation. They require someone who's going
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  to be diligent, someone who's going to be doing follow up,
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  someone who will create opportunities to check in with
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  people or go out of their way at say a cocktail party or dinner
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  to come over and say, hey, I've been thinking about you and the
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  X case. You know, where are you on that?
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  When is that motion for summary judgement hearing the detailed
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  follow up people that the ones who never say die, the ones who
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  refuse to have orphans are the ones who typically get their
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  cases settled. And as much fun as we might have
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  in trial, as trial lawyers it is usually in our clients best
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  interest to avoid trial when at all possible.
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  So don't cave to take the wrong number.
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  Do everything in your power to try to position it to get the
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  defense to underside. Understand your story, your
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  narrative, how you think the judgement is going to come in
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  and why so that the mediator and the defense can honor your
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  client by paying an an appropriate settlement in the
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  case. The mediation itself, we will
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  make sure that the client is aware of what the process is
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  going to be like. About 90% of mediations are by
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  Zoom right now. We do like in person mediations,
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  but it can be inconvenient for for some people to to do it that
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  way. So we'll make sure that the
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  client knows that there's going to be downtime about the
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  confidentiality of the process. We'll make sure that we let the
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  client know, hey, if there are other decision makers who you
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  think should be there, say a significant other or a family
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  member, we want to make sure that they're aware that this is
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  going on because this may be the biggest decision you make in
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  your life. If there are elements that might
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  benefit from some financial planning, say a structured
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  settlement or other piece. So those are things that we
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  start talking about early on in the process before the mediation
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  itself so that the client is aware of their options and can
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  think things through and can make meaningful decisions at the
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  day of the mediation. So those are all pieces one
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  wants to make sure that one arms 1's client with as one goes
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  forward. Mandatory settlement conference
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  is similar in mediations in certain respects and and a
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  completely different animal in other respects.
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  It varies by jurisdiction. A lot of the busier
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  jurisdictions have moved to the Mentor settlement conference
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  being done by volunteer attorneys and these are
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  oftentimes Zoom, meaning they're done remotely.
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  The volunteer attorney is oftentimes someone who is
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  working towards being a full-fledged mediator.
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  These can be very beneficial. They can be beneficial because
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  you encounter people who are very eager to make a name for
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  themselves. We'll work very hard, we'll be
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  creative. The downside is sometimes some
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  of the voluntary mediators aren't as seasoned in the
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  mediation process and so one might need to help give them
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  tools resolution. So we've been in MSCS with
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  volunteer mediators where we've taught them things like brackets
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  or mediators proposals or other tools and, and you have to teach
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  in a way that is, that maintains their dignity.
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  So do you think that this might be a decent time to consider
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  brackets for a mediator's proposal?
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  I maybe how do you use a mediator's proposal?
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  What does that look like for you?
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  Which means they don't know what it is and you have to educate
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  them politely. Those are some of the MSCS.
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  There are still some jurisdictions where it's a
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  judge. Oftentimes those are in person
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  as opposed to Zoom. The judicial ones tend to have a
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  a much different tenor often time, and these are the the old
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  school ones of sitting out in the gallery and you know, the
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  lawyers walk back and go into chambers and you know, kind of
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  cycle in and cycle out. Those can be beneficial because
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  the court can oftentimes apply the pressure of the robe in a
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  way that is different than a mediator or a volunteer
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  mandatory settlement conference panelist.
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  So a props to the the counties that are still doing those.
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  A lot of the great settlement judges are people who went on to
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  be outstanding mediators in in the day.
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  The other thing that an MSC can be good for is helping get a
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  better sense of the court and the flow for the case.
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  It's typically much closer as far as the trial date.
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  If you have the benefit of being in person, allows you to walk
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  around, you can talk to people, you know, talk to clerks, talk
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  to people in the courthouse, get a sense of the flow in terms of
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  what's going through security. You can sometimes talk to the
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  bailiffs or to the people who work security.
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  These are all people where you can kind of get a sense as to,
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  you know, how many cases are really going out, How many
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  judges are really taking cases. Am I, I'm told it's direct
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  assignment, but if my judge is mid trial, am I going to be
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  kicked over to somebody somewhere, you know, down the
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  hall or in a satellite courthouse somewhere?
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  So that MSC is, is a great opportunity to, to gather
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  granular information when you're in person.
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  So side note, if you don't have an in person MSC, they could
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  trip out to the courthouse. Nothing beats going to the scene
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  of the court. Yeah, not seen in the crime to
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  be able to figure out how that's likely to go down when the
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  actual trial call happens. Moving on past formal settlement
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  talks, at a certain point in the case, it becomes time to engage
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  in what is known as expert discovery.
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  For most lawyers, the expert piece is going to have started
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  much, much earlier in the case. What do I mean by that?
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  I mean that if this is a product, one probably already
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  has an engineer that has been taking a look at it.
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  If it's a collision, there may be an accident
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  reconstructionist, a human factors expert at bio mechanic.
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  On the injury side, there may be an orthopedist who has taken a
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  look at the client and medical records to render some thoughts
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  on what the future looks like for this client.
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  There may be a prosthetist, there may be a life care
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  planner, there may be an economist, whole battery of
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  different types of experts that provide testimony.
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  In these types of cases, it is always best if an expert is
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  going to be needed to bring those experts in earlier on in
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  the case. So in California State cases,
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  the experts are required to be disclosed 50 days before trial.
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  And in that that window after the disclosure, their, their
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  depositions can be noticed and, and most of the time each side
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  takes the depositions of all the opposing sides experts.
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  So in the state court, if you have a lot of experts, this can
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  be a challenge. Why do I say it can be a
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  challenge? If you've got 10 experts per
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  side and you're 50 days before trial, that means you're going
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  to need to get 20 expert depositions done over the course
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  of 50 days. So a consideration with complex
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  cases and talented opposing counsel, you might consider
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  reaching out to the other side and saying, hey, how would you
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  feel about doing an early expert disclosure?
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  We can agree to it being 100 days before trial in terms of
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  doing the disclosure and taking the depositions over the 50
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  days, leaving another 50 days to to finalize getting ready, ready
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  for trial. So that's that can be
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  beneficial. It can make Lifeway more
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  civilized. That's one of the challenges
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  with that, that scramble in state court just before trial is
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  the way the experts are are set up.
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  Another thing that's important to remember in California State
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  court is that there is a requirement that files be
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  exchanged 3 days before deposition.
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  What does that mean? It means that the expert that,
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  so I'll use the defense in, in this case, say the defense has
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  an expert who is an accident reconstructionist.
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  That accident reconstructionist is obligated to take all of
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  their file and make it available typically digitally 3 days
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  beforehand. And so this seems to be one of
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  the areas where lawyers have challenges making it happen.
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  And if you hear me being delicate in my language, it's
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  it's because I want to make sure that I'm not placing blame
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  because it can be complicated. The complications are that a lot
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  of experts aren't full time forensic professional experts,
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  which means when you say you need to have your file available
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  for the other side three days beforehand, they say sure.
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  And then they don't think of the fact that they keep their time
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  records in pencil on a piece of note paper next to their
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  computer, or that their files are all over the place, or that
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  they're a nutty professor and they're completely disorganized.
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  So don't get morally offended when the the file doesn't show
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  up three days beforehand. Do be proactive with opposing
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  counsel to say, hey, I need the file.
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  And one of the first things when you when the file arrives is to
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  take a look and make sure that it has everything that one would
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  expect to see in the expert file.
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  There are frequently the experts will not include their billing.
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  So hey, thanks for sending over the file.
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  It appears that the billing is missing.
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  Hey, thanks for sending over the file.
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  Were there any text messages between you and your expert
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  related to this file or any text messages between your expert and
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  anyone else related to this file?
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  They become apparent in their absence, I guess would be the
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  best way to put it. So that's, that's experts and
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  and getting ready for deposition.
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  You want to make sure as you're doing that expert deposition
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  that you close the deposition. The closing the deposition is
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  have I gotten all of the opinions that you intend to
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  offer at the time of trial? They sometimes will try and get
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  mealy mad with that, but if you ask it four or five different
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  ways and and say, you know, now's the time.
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  If there's anything else you need to let me know.
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  There is an opportunity in California State law for experts
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  to develop more opinions and offer more opinions and the
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  process for that, This came through a case a while back, but
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  the process for that is in essence my expert after reading
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  your experts deposition thought that there were some things that
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  needed to be done. My expert has done a little bit
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  of additional testing. He's done these X things.
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  These X things that he has done have not changed his opinions.
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  That's that's one way to handle it.
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  Just let him know that what was done and then you'll be you'll
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  be able to to bring it in. If they have changes his
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  opinions, then to say to the other side, the work that my
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  expert has done has changed, altered his opinions.
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  And you could oftentimes do it as an offer of proof, you know,
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  bullet point, bullet point, bullet point.
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  And should you want to take his further deposition, we will make
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  make the expert available. If you do those things, the new
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  opinions tend to come in without a problem.
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  If you don't do those things and your expert has done a bunch of
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  work, then expect the the judge to exclude the work and the new
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  opinions. So just make sure you dot your
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  IS and cross your T's on on the expert side there as far as
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  that's concerned. We talked quite a bit about
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  state and and experts. There's also federal and in
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  federal court there is typically a scheduling order and the
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  scheduling order usually will have the plaintiffs.
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  Experts have to do Rule 26 reports and be available and so
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  plaintiffs have to do theirs first.
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  Then typically 30 or 45 days later, the defense has to do
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  theirs and there's a back and forth.
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  So just follow the scheduling order from the the federal judge
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  and and you can't go wrong. The Rule 26 requirements are are
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  much stricter, much more onerous and this is where working with
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  seasoned experts. Can be beneficial so that you do
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  not end up with your expert excluded for failing to follow
• 20:26
  Rule 26 requirements. Thank you for tuning in.
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