The Red Velvet Lawyer

Prior to the mediation, I circulate to the lawyers a confidential pre-mediation questionnaire modeled on a form developed by Richard Sher , a well-known St. Louis mediator.  This form helps the lawyer, the client, and me get ready for the mediation with a structured analysis of the case. It asks the lawyers to disclose the status of the case in the litigation process and whether any dispositive motions are pending.   It asks about the status of discovery and how much more discovery the parties need to do.   It asks about the facts of the case, the claims and defenses of the parties, the disputed issues of liability or damages, the amount and characterization of damages sought, the attorneys’ fees incurred to date, and the expected fees the client will incur getting the case to trial.    Next, it asks about the history of negotiations and why that lawyer believes the negotiations have failed so far.   It then asks for a candid assessment of ...

A recent study shows that nearly all federal cases settle before trial.  In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases.  These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts.   By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings-- but the dispositions by trial fell to 1.8 percent .  These statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962.     Judge Patrick Higginbotham reported that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year.   Over half of these trials lasted three days or less in length and 94 % were concluded in under ten days.” ...