Agenda for 16th Class

1. Agenda for 16th Class • Admin • Name plates • Handouts • Slides • Court Visit Information • Mediation documents • Mediation Guidelines for Students • Mediation Problem • Mediation Readings • Polinsky • 1995 Exam (continued) • German procedure • Introduction to settlement and ADR

2. Assignments I • Monday – Court Visit • See Court Visit handout for detailed information • Must be at court by 8:45AM • Wednesday – Settlement and ADR • Yeazell pp. 523-24,531-44, 548-50, 555-58 • You do not need to read these materials carefully • Handout (Polinsky) • If you are not quantitatively inclined, you will need to read this carefully. Polinsky is extremely clear, but it will take time. • Questions on last page of Polinsky handout • A Civil Action through p. 448 • In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement? • 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?

3. Assignments II • Friday – Mock Mediation • See 3 mediation documents • Best to start preparing now for mediation • Can start settlement negotiations before mediation itself • Will send list of mediation teams and rooms soon

4. Langbein, “German Advantage…” • 1) Are you convinced that German civil procedure is better than American civil procedure? Why or why not? • 2) What aspects, if any, of German civil procedure do you think are superior to American civil procedure? Could we adopt them without changing other aspects of our procedure? • 3) What aspects of American procedure do you think are superior to German civil procedure? Could they adopt them without changing other aspects of their procedure? • 4) Do you think that US courts would need a larger or smaller number of judges if we were to adopt German civil procedure ? • 5) Do you think a bad judge has a bigger negative effect in Germany or the U.S.? • 6) Europeans are generally willing to pay higher taxes to fund higher quality public services. Can that help explain why Germany and the U.S. have different systems of civil procedure?

5. Langbein, “German Advantage…” • Control of sequence • Discovery • Witnesses • Experts • Appellate review • Judicial career

6. Intro to Settlement • Most cases settle • Roughly 2/3rds of filed cases settle • Some cases settle even before complaint filed • Roughly 5% go to trial • Roughly 20% dismissed (Rule 12) or terminated by summary judgment • Roughly 10% other – default judgment, plaintiff failed to prosecute, referred to arbitration, etc. • Settlement is contract by which plaintiff dismisses case in return for something valuable from the defendant • Usually money • Can be almost anything – job, house, letter of recommendation, apology • Often non-monetary terms -- Confidentiality/secrecy, return of discovery documents, payment of costs • Economic analysis of settlement • Settlement is attractive to parties because it enables them to save on the cost of litigation • Settlements is sometimes not possible, because parties are sometimes too optimistic about trial outcomes • Settlement is sometimes not reached, if the parties are too stubborn (strategic) in their negotiations

7. Intro ADR • ADR = Alternative Disputes Resolution • Mediation. Settlement negotiations with assistance from neutral person • Mediator does not have power to imposed settlement • Used with increasing frequency • Arbitration. Adjudication by private judge • Settlement is sometimes classified as ADR