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© 2011 by Julie A. Goren
Most mediators have had this experience: two parties represented by counsel show up at the mediation. On one side, there’s the plaintiff, who sustained injuries in a rear-end auto accident. On the other side, there’s the defendant, or more accurately, the insurance company. The insurance company admits liability, and admits that the plaintiff sustained damages. But, the case won’t settle. Why? The parties can’t agree on the one remaining issue — the amount of damages. The plaintiff is at $80,000; the defendant is at $20,000. Neither will budge. They each insist they will win when they get their day in court. The mediator’s hands are tied.
Or how about this one? Same parties, same accident, but this time the parties agree on the amount of damages ($85,000). Why won=t it settle? Hint: the insurance company’s representative is assigned to the fraud unit. The plaintiff is at $85,000; the defendant is at $0. Again, they each insist they will win when they get their day in court. The mediator is again forced to check the “did not settle” box on the statement submitted to the court.
As of January 1, 2011 (or as soon thereafter as individual courts are able to implement it), there will be a new solution to suggest to the parties — an expedited jury trial. If they agree to pursue that option, mediation services may continue to be quite helpful.
Every California mediator needs to read the California Expedited Jury Trial Act (AB 2284) and the rules implementing it. The Act is codified in Code of Civil Procedure §§ 630.01-630.12. The implementing rules are California Rules of Court, Rules 3.1545-3.1552. The new mandatory form “Expedited Jury Trial Information Sheet” (EJT-010-INFO) may be found on the Judicial Council website.
For now, here is a very brief overview of the Act, focusing on ways in which the mediator may continue to be a valuable player.
An expedited jury trial (“EJT”) is heard on a date certain, and the entire trial (from voir dire to closing arguments) is completed on that date. Participation in the EJT process is voluntary. Certain provisions of the rules are mandatory; others may be modified by the parties.
These are mandatory: (1) the parties generally waive their rights to appeal and to make post-trial motions; (2) the jury is smaller; (3) the parties are allowed fewer peremptory challenges; and (4) each side must present its case within three hours, including time spent on cross-examination. Otherwise, there is a lot of flexibility and room for the parties to come to agreement.
Here are a few of the areas where flexibility and room for negotiation exist:
- Modifications to timing of pretrial submissions
- Limitations on number of witnesses per party
- Modification of rules re exchange of expert witness information and presentation of expert testimony
- Preparation of joint form questionnaires for voir dire
- Innovative methods to present matters to the jurors
- Stipulations to factual and evidentiary matters
But of all of the areas in which the mediator can continue to be of service to the parties, perhaps the most significant is reaching a “high/low agreement.” The high/low agreement is defined in the Act (C.C.P. § 630.01) as: a written agreement entered into by the parties that specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury.
How does this work? Assume the parties agree on a high of $75,000 and a low of $20,000. If the jury returns a defense verdict, the plaintiff will be awarded $20,000. If the jury returns a verdict for $50,000, the plaintiff will be awarded $50,000. If the jury returns a verdict for $90,000, the plaintiff will be awarded $75,000.
There is no monetary limitation on the type of cases that can proceed by way of EJT. The only requirement is that they be triable in a single day. This necessarily requires cases limited in scope, but not monetary value.
The satisfaction of getting their “day in court” combined with the comfort of a guaranteed win for the plaintiff and a limit on exposure for the defendant may be quite attractive to the parties. The mediator can play an integral role in explaining this new alternative, encouraging the parties to consider it, and then helping them work together to fashion a mutually agreeable process. In addition, there may be a way for the parties to agree in advance to resume the mediation to hammer out the terms of a stipulated judgment.
Julie A. Goren, a non-practicing Los Angeles attorney and former mediator, is the author of Litigation By The Numbers, a 478 page loose-leaf focused solely on California civil litigation procedure, updated every January and July, and the co-author of California Civil Litigation and Discovery. She frequently lectures and writes about California state court procedure. For more information, visit www.litigationbythenumbers.com.