Agenda for 14th Class

1. Agenda for 14th Class • Admin • Name plates • Handouts • Slides • Shavell • No Class Thursday • Make up will be mock mediation on F 11/1 • Review of ADR • 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 777-779. 794-801 • Questions to think about • Briefly summarize Price (WG1) • Pp. 797ff. Q 2 (WG2), 3b (WG3) • Optional: Glannon Chapters 13-14 (Joinder)

3. Assignment II • Settlement and Fees in A Civil Action • A Civil Action, pp. 146 to end • Especially pp. 146, 154-55, 213-14, 249-51, 280, 405-10, 446-54 • 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