1. Agenda for 14th Class Admin Name plates Handouts Slides Shavell
A Civil Action Mediation: Guidelines for Students
A Civil Action Mediation: Materials for Mediators and Students
Readings on Negotiation & Mediation
mediation teams by Monday 9AM
Subject: Mediation team
One per team, cc all team members
3 people per team (except five 4-person teams)
Indicate whether you prefer the represent plaintiffs or defendants
Review of ADR
Arbitration (continued)
1995 Exam
Intro to Fees, 2nd half of course, Joinder

2. Assignment I Fees Shavell handout
Note that Questions 11 and 12 refer back to Suit & Settlement Question 9, which was at the end of the Polinsky readings on Settlement
Blackboard Question on Fee Shifting
Problems on last page of Shavell handout, except Q 11 (which is on Blackboard)
Q12 (WG1), Q13 (WG2), Q14 (WG3), Q15 (WG4), Q16 (WG5 & 6), Q17 (WG7)
Joinder
FRCP 7, 13, 14, 18, 20, 21
Yeazell ,
Questions to think about
Briefly summarize Price (WG1)
Pp. 807ff. Q 2 (WG2), 3b (WG3)
Optional: Glannon Chapters (Joinder)

3. Assignment II Settlement and Fees in A Civil Action
A Civil Action, pp. 146 to end
Especially pp. 146, , , , 280, ,
Questions to think about
In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement? (WG4&5)
In what ways does A Civil Action contradict Polinsky’s economic model of settlement or suggest that the real world is more complex than that model? (WG6)
Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received? (WG7)

4. Review of ADR Settlement
Economic model simplifies, but also illuminates
Factors that impede settlement
Mutual optimism
Hard bargaining
Factors that encourage settlement
Litigation costs
Risk aversion
Mutual pessimism
Mediation
Settlement negotiation with assistance of 3rd party neutral
Mediator has no power
Arbitration
Private judge, with agreement of parties
Party can be forced to arbitrate and forced to abide by award
Very hard to challenge arbitration award in court
Parties can design their own procedures
Or can choose to follow standard rules, e.g. AAA or JAMS

5. Arbitration (con’t) Arbitration is controversial
Especially in consumer contracts
Where business may put arbitration clause in form contract stipulating defendant friendly arbitrators and procedures (e.g. no class actions)
Federal law promotes arbitration
Federal American Arbitration Act is interpreted to require states to enforce arbitration agreements, except in rare circumstances
Agreement was unconscionable or otherwise defective under ordinary state law contract principles (e.g. fraud, duress), or
Procedure violative of due process (e.g. biased judges)
Very hard to prove, even though probably often true, because business generally chooses arbitration procedures, including rules for selection of arbitrators
Businesses are “repeat players”
So arbitration providers may have incentive to please business, otherwise business will choose other arbitration provider in future.

6. 1995 Exam

7. Next Class -- Fees Fees = Compensation to lawyer
Generally large. Approximately 1/3rd of judgment
English rule. Loser pays other side’s attorney fees
American rule, no reimbursement of other side’s lawyer’s fees
Except when explicitly allowed or mandated by statute
Costs = court fees
Generally small.
Loser pays, even in U.S.
Expenses
Expert witnesses, paralegal & secretarial time, photocopying, etc.
Usually paid by client along with lawyers’ fees
Not generally shifted under British rule
Usually subtracted from judgment or settlement before calculating lawyer’s fee percentage under contingent fee

8. Introduction to Second Half of Class
First half of class -- Stages of simple lawsuit
Service of process, pleading, discovery, trial, post-trial motions, appeals
SJ, settlement, ADR
2nd half of course
Complex litigation
Multiples parties and claims -- Joinder, class actions
Multiple suits– Collateral Estoppel & Res Judicata
What court?
Subject matter jurisdiction
Federal or state court?
Personal jurisdiction
If state court, which state’s court?
If federal court, federal court in which state?
Venue – what district within a state?
What law?
Choice of Law
If applying state law, which state’s law?
Erie
When apply state law in federal court in diversity case?

9. Next Class -- Joinder
Rules start from assumption that suits may involve a single plaintiff suing a single defendant on a single claim
Multiple parties and claims are allowed ONLY if explicitly permitted by a rule
FRCP 18 allows plaintiff to join 2 or more claims against the same defendant
FRCP 20(a)(2) allows plaintiff to join 2 or more defendants
If claims arise out of the same transaction or occurrence
Joinder doesn’t make a huge difference
If claims cannot be joined, they can usually be brought separately
If claims are joined, court has discretion to “sever” them (FRCP 21)
Proper joinder does NOT mean case properly in court, still need:
Personal jurisdiction
Subject matter jurisdiction
Venue
Note that joinder expands possible pleadings. FRCP 7
3rd party complaint, Answer to counter claim, Answer to cross-claim, Answer to 3rd party complaint