Mediation at the Appellate Level--Settlement IS Still an Option
Mediation at the appellate level has been available in certain Ohio appellate districts since the late 1980’s. Appellate mediation is a confidential process in which a neutral person meets with the parties and their counsel to facilitate an agreed settlement before the parties have expended more time and expenses for a transcript, briefing, and oral argument.
WHY MEDIATE AT THE APPELLATE LEVEL?
When the concept was first introduced, attorney and parties questioned whether mediation could be effective at this level when one party had a victory and the other party wanted that victory reversed. Why would either be willing to discuss settlement? But as a seasoned mediator once noted, “the court of appeals is where you go after the battle so the judges can shoot the wounded.”
What participants quickly learn is the process affords one more opportunity to explore resolution or at least discuss any procedural issues and simplify the issues on appeal or original action. In fact, in the Eleventh Appellate District, the settlement rate runs at an average approaching 70%.
WHAT APPELLATE DISTRICTS OFFER MEDIATION?
While the majority of Ohio’s twelve appellate district offer mediation conducted at no charge by the court’s mediator or “conference attorney,” four districts do not offer mediation. They are the Second District (Champaign, Clark, Darke, Greene, Miami and Montgomery counties), Third District (Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot counties), Fifth District (Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas counties) and Seventh District (Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble counties).
HOW DOES APPELLATE MEDIATION WORK?
Each district’s mediation or “prehearing conference” is governed by App. R. 20, the district’s local rules, and Ohio’s Uniform Mediation Act, R.C. 2710.01, et seq. It is important to note that the times for filing of the record and briefs are not suspended. The court’s mediator decides which cases are ripe for mediation shortly after the filing of the Notice of Appeal and the conference itself is held either in person or via telephone generally before the transcript of proceedings is to be filed or a brief is due if no transcript of proceedings will be filed. If it is not possible to schedule the conference before a deadline, an extension of time to file may be requested via the court’s mediator or by filing a motion, depending on the local rule. While an extension is not automatic, it is usually granted because the court is aware that the likelihood of a settlement is greatly reduced after briefing.
Pre-mediation preparation is critical—each side should discuss demands and offers or other settlement proposals in advance of the conference, and if the client with settlement authority is not required to attend, that client must be available by phone.
Mediation sessions are usually one to two hours. The attorneys present a short statement of the legal basis of the appeal, and in the initial joint session the parties and their counsel generally outline the background of the dispute and possible resolutions. The joint session may be followed by a separate caucus between the mediator and each side. If the parties arrive at a settlement, the parties reduce that agreement to writing and sign it before they leave. More formal settlement documents are prepared by counsel after the mediation. Most mediators will schedule additional mediation sessions if needed so long as the parties are continuing good faith negotiations. One should also note that the judges do not know what happened during mediation. Mediation communications are privileged against disclosure pursuant to R.C. 2710.03, and recent appellate decisions have confirmed that the mediator may report to the court only that the mediation was held or has terminated, whether a settlement was reached, and attendance.
WHAT IF THE APPEAL WILL BE FILED IN A DISTRICT WITHOUT A MEDIATION PROGRAM?
If you have an impending or pending appeal in a district that does not have a court mediator, private appellate mediation is always an option.
UNIQUE QUALIFICATIONS AS AN APPELLATE LEVEL MEDIATOR
I have recently returned to private practice after completing a six-year term as a judge on the Ohio Eleventh District Court of Appeals. As an appellate judge I authored more than 500 opinions and heard more than 1150 appeals involving complex tort and wrongful death actions, commercial and business disputes, real estate and construction disputes, trade secret litigation, professional malpractice, employment disputes, probate litigation, and class actions. By the assignment of three Chief Justices I served as a visiting judge on the Supreme Court of Ohio and in four sister districts across the state (the Sixth, Seventh, Eighth and Ninth). I was selected by the Court of Appeals Judges’ Association as its designee to the Supreme Court of Ohio Commission on Rules of Practice & Procedure and selected as chair of the Appellate Rules Subcommittee.
My state-wide practice focuses on appellate and trial advocacy in all areas of complex civil and criminal litigation and on providing mediation and arbitration services for attorneys, businesses, and governmental entities at the pre-trial, post-trial and appellate stages of a claim. I offer per case appellate consults to other private attorneys, law firms, prosecutors and other governmental law departments, and organizations. My consulting services include trial court record review and case evaluation, brief review and writing, and conducting mock oral arguments.
Before taking the bench, I spent over 25 years in a state-wide general civil and criminal trial and appellate practice in federal courts in Ohio and Pennsylvania and in Ohio courts at all levels, and achieved a Martindale-Hubbell™ AV Preeminent rating. During those years I served as a private mediator and as a mediator and arbitrator for the Geauga and Cuyahoga County Common Pleas courts. I have resumed this ADR work since returning to practice, and I was recently appointed to the Cuyahoga County Common Pleas Court’s panel of business mediators to serve that court’s commercial docket.
Please feel free to call or email me to explore all of your mediation options.
In honor of President's Day, I am posting my article recently published in "Lake Legal Views"--
With the release of the Steven Spielberg movie, Lincoln, people are talking about President Lincoln, but the movie started me wondering more about Lawyer Lincoln. I went to my bookshelf and dusted off a few books and articles that looked back on Lincoln’s earlier years as a lawyer and quickly realized that, as former New York governor and constitutional law professor, Mario Cuomo, observed in his book, Why Lincoln Matters: Today More than Ever, “Lincoln speaks to us today as he did more than 150 years ago because he spoke to the ages…with eloquent simplicity.”[i]
Self-schooled as a lawyer, historians have observed that Lincoln “found stability in the law and in the Constitution,” but after the Dred Scott decision in 1857, Lincoln “could no longer have unqualified faith in either,” turning instead to the “Declaration of Independence with its promise of liberty for all…as the….premise on which all his other political beliefs rested.” [ii] Lawyer Lincoln also carried with him as he rode circuit, The Believer’s Daily Treasure, described by Carl Sandburg as Lincoln’s daily scripture devotional from which Lincoln derived many of his famous phrases and which greatly influenced his famous speeches.[iii]
These writings were at the core of President Lincoln’s political and social beliefs, but his experiences as a practicing lawyer also laid a foundation for his presidency and his approach to politics, policy, and leadership. Most importantly, today’s lawyers may learn many lessons from Lawyer Lincoln.
Five Qualities of a Fine Lawyer
As former ABA President, the late Jerome J. Shestack observed, Lawyer Lincoln displayed five qualities of a fine lawyer: “a personality that attracted clients and won the confidence of juries…the ability to go quickly and briefly to the heart of a matter…restrained but effective verbal expression…a highly retentive mind….[and finally] a willingness to work very hard.”[iv]
Lincoln was admitted to the Illinois bar at age twenty-seven, and actually spent his first ten years as a lawyer engaged in politics. Lincoln went from politics to law and back to politics. He did not take up the day to day practice of law until his term in Congress ended in 1849. Rather than practice from an office setting, Lawyer Lincoln chose to ride the fifteen-county Eighth Circuit. In Lincoln’s day, judges and lawyers would ride from county seat to county seat. Prospective clients would seek out a lawyer, who, out of necessity, would quickly confer with the client, research, prepare, and try a case to a jury without the benefit of extensive pretrial discovery and motion practice we enjoy today (maybe “enjoy” is not the right word).
Lincoln as the Trial Lawyer
We can learn from Lincoln’s trial preparation and cross-examination techniques. Here are Lawyer Lincoln’s closing argument notes in a trial seeking the return of an excessive fee charged by a claim agent collecting a Revolutionary War veteran’s pension for the widow:
“No contract. Not professional services. Unreasonable charge. Money retained by defendant—not given by plaintiff. Revolutionary War. Describe Valley Forge privation. Ice. Soldiers’ bleeding feet. Plaintiff’s husband. Soldier leaving home for army. SKIN DEFENDANT. Close.”[v]
How simple, how direct, and how effective. Lincoln succinctly set forth the required legal elements for the jury, while at the same time employing a trial lawyer’s most effective tool, a good narrative story. He had the same approach to pleadings—no shot gun pleadings for Lawyer Lincoln. He wrote, “[i]n law it is good policy never to plead what you need not less you oblige yourself to prove what you cannot.”[vi]
If you have seen the new movie, you will recall in many scenes we find Lincoln storytelling, as opposed to arguing, to make a point. Lincoln, himself, explained his penchant for the tale or parable: “They say I tell a great many stories; I reckon I do, but I have found in the course of a long experience that common people…are more easily informed through the medium of a broad illustration than in any other way, and as to what the hypercritical few may think, I don’t care.”[vii]
Lincoln was also skilled at the art of cross-examination. “He had a most remarkable talent for examining witnesses…it was a power to compel a witness to disclose the whole truth. Even a witness, at first unfriendly, under Lincoln’s kind treatment would finally become friendly and would wish to tell nothing he could honestly avoid against him if he could state nothing for him.”[viii]
Instead of the “Law and Order” style of a badgering cross which simply makes the hostile witness that much more defensive, Lawyer Lincoln killed the witness with kindness. One can picture him gently leading the witness down the path he designed by getting the witness to just keep agreeing with him.
Lincoln as a Member of the Bar
Each town’s tavern served as the hotel for the lawyers and judges. Apparently the judges had their own room, but the lawyers shared rooms—two to a bed with several beds in each room. This gives new meaning to the term “bar association.” Meals were shared at a communal table. Just imagine one large table where the lawyers were joined by jurors, criminal defendants out on bail, witnesses, and travelling salesmen. It is on the circuit that Lawyer Lincoln met the Presiding Judge David Davis, who later became his presidential campaign manager and, at the urging of Mary Lincoln, a Supreme Court justice. Davis was also the executor of Lincoln’s estate.
One colleague described Lincoln’s professionalism as the key to his popularity. “He arrogated himself no superiority over anyone, not even the most obscure member of the bar. He treated everyone with that simplicity and kindness that friendly neighbors manifest in their relations with one another. He was remarkably gentle with young lawyers…No young lawyer ever practiced in the courts with Mr. Lincoln who did not in all his life after have a regard for him akin to personal affection.”[ix]
Lincoln as a Counselor at Law
During his circuit riding days Lincoln talked about the lawyer’s role as a counselor: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough…” [x]
From my research it would appear that many of the modern day books on law practice management are based upon an outline provided by Lawyer Lincoln. Mr. Shestack’s fifth quality of a fine lawyer, the willingness to work very hard, is evinced in his notes for a law lecture where we find this admonition, “Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.”[xi]
Lawyer Lincoln had to maintain this level of diligence in order to handle roughly five thousand cases in his career. There is an interesting website assembled by the Illinois Historical Preservation Agency that allows you to research his cases by subject or participant.[xii] Just pull down the “main subject” tab and you will immediately recognize that the breath of his experience is staggering.
Finally, no discussion of Lawyer Lincoln would be complete without reference to his views about fees. We are most familiar with his quote, “[a] lawyer’s time and advice are his stock in trade,” but he also had some interesting opinions about attorney fees. “The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something were still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance…”[xiii]
He also wrote a note in a civil case, “[i]f you settle I will charge nothing for what I have done, and thank you to boot. By settling you will likely get your money sooner, and with much less trouble and expense.”[xiv]
That being said, we cannot say whether his firm’s success was because of or despite these views on fees. We do know that by 1853 his firm’s share of the caseload in the Sangamon County Circuit Court was 34%. Lawyer Lincoln had a success rate of 65% in civil cases and 70% in criminal cases. His appellate docket was astounding with at least four hundred cases in the Supreme Court of Illinois, winning three out of four cases as the appellant. And he always treated his partner fairly. When he received a fee he immediately took Mr. Herndon’s portion of the fee, wrapped it in paper and wrote Mr. Herndon’s name on the roll, describing himself as the “trustee” for his law partner.[xv] Maybe that is the real source of his nickname, “Honest Abe.”
So this February 12th, call upon your brothers and sisters from our bench and bar, find a young lawyer to join you, and take the time to raise a toast to Lawyer Lincoln, just as they did back in those circuit riding days in Illinois.
[i] Mario M. Cuomo, Why Lincoln Matters: Today More than Ever (Harcourt 2004).
[ii] David Herbert Donald, Lincoln (Simon & Schuster 1995) at 239.
[iii] Lincoln’s Devotional with Introduction by Carl Sandburg (Channel Press 1957).
[iv] Jerome J. Shestack, Abe Lincoln as a Circuit Lawyer (Wolf, Block, Schorr & Solis-Cohen LLP 1998), citing John Frank, Lincoln as a Lawyer (American House, Inc. 1961, reprinted 1991).
[v] Jerome J. Shestack, Abe Lincoln as a Circuit Lawyer, supra at 5.
[vi] Shestack, supra at 9.
[vii] Id. at 8.
[viii] Id. at 4.
[ix] Id. at 15.
[x] Id. at 4.
[xii] http://www.lawpracticeofabrahamlincoln.org/Search.aspx. For further research on Lincoln’s legal career, go to http://www.law.uconn.edu/content/abraham-lincoln.
[xiii] Shestack, supra at 14.
[xiv] Journal of the Abraham Lincoln Assn., Vol. 16, No. 2 at 4,5.
[xv] Shestack, supra at 12.
A New Chapter Begins