Judge Pro Tem Experience

I volunteered four hours this morning at the Placer County Superior Court as an appointed Judge Pro Tem.  Handed two cases to try and help resolve.  One was a smaller case, with an in pro per plaintiff and a large national insurance carrier on the defense.  Both parties were reasonable, put their confidence in me, and we negotiated a respectable resolution that removed risk for all involved, save thousands in litigation expenses and preserved court resources.  My experience and reputation with the defense attorney and claims representative from the carrier were important in efficiently resolving the case.  Other case involved an injury causation dispute from a major motor vehicle accident.  This was the type of case on which reasonable minds could differ, which they did and continue to do.  Neither party was mean or disrespectful about their positions, but were firm in their principles.  And both were prepared for trial in two weeks.  Despite spending two hours with the parties, could not come to any common ground.

Mediation ordered by Court to avoid "litigation morass" - WaMu's final hope?

Mediation ordered to avoid "litigation morass". WaMu Reorganization Plan Fails.  U.S. Bankruptcy Judge orders thousands of claimants and stakeholders to pursue mediation. Judge says mediation required before lawsuit can proceed.  Most Northern California Superior Courts now require parties to submit to some form of Alternative Dispute Resolution.  Mediation is often the best ADR option because it provides candid, cost effective discussion and resolution at a fraction of the cost and time inherent in complex litigation.  Some counties (Contra Costa, Solano, Alameda) provide mediators who volunteer the first two hours of mediation, which makes mediation even more attractive.

Supreme Court decision on Howell case gives certainty to damages issues

On August 18, 2011, the California Supreme Court rendered a long-awaited opinion on the Howell v. Hamilton Meats Co. case. www.courtinfo.ca.gov/opinions/documents/S179115.PDF  The central issue was whether the negotiated reduced payment a plaintiff's health plan negotiates for the plaintiff [I call this the wholesale price of medical care] should be treated as a collateral source payment in the same way the actual payment from the health plan is considered a collateral source, and consequently whether a defendant is entitled to the benefit of that negotiated reduced rate.  The Court said in essence no, the difference between the wholesale rate and the retail rate is not a collateral source benefit and consequently the measure of a plaintiff's damages is what was paid, not what was charged [the retail rate].  This decision limits a plaintiff's damages, which is certainly a negative for plaintiffs and plaintiff attorneys across the board.  Evidence of the retail amount is admissible evidence before a jury, as is evidence of what was paid.  How the word "insurance" doesn't get uttered during all this dispute over retail vs wholesale rates and payments remains unresolved.  The Court's decision further modified what was a productive and predictable method of resolving the "paid vs. billed dispute" wherein most trial courts take on the proper measure of medical damages, i.e. post-verdict hearing on whether to reduce medical damages down to what was paid assuming the evidence is presented.  The decision does provide some certainty which was missing for several years as several disparate cases [Hanif, Nishihama, Howell, King, Cabrera] from several districts weaved their way through the appellate system.  A strong, knowledgeable mediator should know these issues and knows the current state of the law in order to be effective for the parties.

Real Estate Dispute Resolves Through Mediation

I was appointed by the El Dorado County Superior Court to serve as one of two of mediators on a pending action filed by a homeowner who claimed the home mortgage and interest rate she ended up with was not the loan she applied and was approved for.  She claimed she did not know the loan could adjust from less than 1% interest rate to over 4%, effectively doubling her monthly payment, which it did over the next four years.  She subsequently lost several thousand dollars to a fraudulent loan modification program, which she claimed she would not have lost had she not been stuck with an adjustable rate mortgage.  She subsequently sued the mortgage officer, broker and the lender, a national bank.  At the outset of the conference, the parties were reluctant to discuss settlement or even engage in any substantive discussions of the issues.  In short, both were entrenched in their positions and unwilling to move.  One party was offended at being sued, the other felt hurt and betrayed.  After some encouragement from myself and my partner about the benefits of candid discussion of the issues and reassuring that there was nothing to lose by engaging in a confidential exchange of ideas, the parties got involved.  Once the parties began negotiating in earnest, a settlement was reached within a few hours.  Continued litigation of the matter, including experts, would have cost the parties tens of thousands of dollars.  The parties avoided those expenses and resolved the dispute for one-tenth of the expense of trial.  Both parties were relieved to put the dispute behind them, emotionally and financially.