Last month, in Rent-A-Center, West Inc. v. Jackson (No. 09-497), the Supreme Court, in a 5-4 decision written by Justice Antonin Scalia, ruled against an employee who sought to have an arbitrability issue in his case decided by a court, and not by an arbitrator. The obstacle facing the employee, Antonio Jackson, was a clearly drafted “delegation clause” — a clause directing that any challenges to the enforceability of the arbitration agreement must be decided by an arbitrator, not a court. Jackson’s case had this unusual weakness: he had no challenge whatsoever to the validity or enforceability of the delegation clause itself. For this reason, in briefs and oral argument to the Supreme Court, he urged the Court to rule that one can escape an otherwise enforceable delegation clause of an arbitration agreement based solely on objections (in his case unconscionability objections) directed to parts of the agreement other than the delegation clause itself.
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Come on, we love the ‘hardballer’…“I made him an offer he couldn’t refuse”…”I’ll be back”…and my personal favorite, “A census taker once tried to test me. I ate his liver with some fava beans and a nice Chianti." Perhaps Clint was the best hardballer of them all… “You’ve got to ask yourself one question. ‘Do I feel lucky’ Well, do you, punk?” and of course, ”Go ahead, make my day.” Ya, baby! Nothing like an ‘in your face’ hardball moment on the big screen!
Read more »Just six weeks before trial and an hour before mediation is to begin, Lucy Litigant meets with Alfred, her attorney, at Checkers Breakfast Grill to discuss negotiation and settlement strategies for that day’s mediation session regarding a claim of approximately $7.0 million. At that private attorney client breakfast meeting, Lucy contends that Alfred said he would be willing to make a side agreement with her that as part of any mediation settlement, Lucy would be paid from the attorneys’ fees portion the sum of at least $200,000 as a paralegal for her work on her own case.
Read more »Tom, Esq. was tired…. It’d been a long day as the mediation participants reached agreement at 8:30 pm. He had the foresight to bring a proposed settlement agreement on a thumb drive, so that Tom and Jerry, Esq., plaintiff’s counsel, worked collegially in writing up “The Deal.”
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Something You Should Know: One in a series of observations derived from Academia
Topic: About Mediation
One mechanism by which people decide whether to trust strangers is the interplay between the stranger’s initial appearance and the observer’s intuitive biases. So, when entering a negotiation with opposing counsel who you have never met or meeting an opposing litigant for the first time at mediation, be aware that you may initially make a social judgment about the other person’s trustworthiness, which is based on your past biases. The result can be unnecessary misunderstandings resulting in delays or missed opportunities.
Read more »A recent article by Daily Journal staff writer laura Ernde quoted Thomas J. Stipanowich, professor at Pepperdine University School of law and academic director of the Straus Institute for Dispute Resolution as saying, "Although arbitration was set up as an alternative to the expensive and time-consuming process of going to court, lawyers have started bringing the same litigation tactics to the arbitration process, creating higher cost and delay."
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Technology Survey Indicates Big Case Management Problems From Arbitration E-Discovery Are Spreading
Topic: About Arbitration
Discovery disputes relating to electronically- stored information, referred to in this article as ESI, continue to bedevil the courts. The disputes increasingly are arising in domestic commercial and some international arbitrations. This two-part article discusses specific types of E-discovery disputes practitioners encounter or can expect to encounter.
Read more »Typically, parties in litigation enjoy broad discovery rights that, to clients’ occasional dismay, trump manageability of costs. Left unchecked, this emphasis on access to theoretically relevant documents could wreak disastrous pretrial economic results for litigants when superimposed on massive amounts of electronically stored information (“ESI”). In fact, in cases in which less than $500,000 or so is at stake, predicted litigation outcome might be replaced by anticipated attorneys’ fees and ESI discovery and production costs in assessing the pros and cons of settlement.
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