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Be Prepared

by Phyllis Pollack

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Even for a mediator, mediations can be very frustrating. I had a mediation the other  week that falls into this category. The defendant and his counsel were willing to settle, and, in fact, wanted to settle. But the matter did not settle. . . because of plaintiff’s counsel. She had neither researched the law nor investigated the facts and so could not realistically evaluate the case for the benefit of her client.

       The matter involved an alleged error by an attorney (who is now the defendant). The attorney while representing the plaintiff had obtained a judgment against a third party but in doing so, had used the third party’s wrong name. Although the attorney recorded an abstract of the judgment, the title company did not note the judgment when the third party sold his residence. Thus, the escrow closed without the plaintiff collecting any sums on her judgment.

       Based on this fact, plaintiff sued her attorney for negligence. However, neither plaintiff nor her now attorney had any knowledge of what actually transpired during escrow including the amount of money exchanging hands, or even if escrow, indeed, would have closed had the judgment come to light. Rather, in conclusory fashion, plaintiff and her now attorney claim the judgment is “uncollectable.” Again, when asked what evidence they have to present at trial, the attorney responded that it is not her burden to show this, and besides, her client – the plaintiff – has been “told” that the third party has left the country and further, her expert will testify on this issue. When presented with facts indicating that perhaps, the third party does have other assets, both the attorney and the plaintiff simply exclaim that they do not believe these facts. Again, neither plaintiff nor her attorney has made any attempt to determine if, indeed, the third party has, indeed, left town, or instead, has assets that the judgment can reach. Rather, they believe it was the defendant’s (the attorney that plaintiff has just sued) duty to do this.

       As you may surmise, plaintiff claims the judgment is useless because it does not have the correct name of the third party on it. When asked if any efforts have been made to correct the judgment, the attorney insists it cannot be done. When the contentions of the defendant as to how to correct the judgment are discussed with the plaintiff’s attorney, the latter, again, verbally “shrugs” her shoulders, claiming defendant should do this, not her or some other attorney.

      In sum, in response to defendant’s multiple contentions about either the law or the facts, the plaintiff’s lawyer verbally “shrugged” her shoulders, opining that it would be the subject of expert testimony, or that it is not her burden of proof or that the defendant should have done it.

       Because neither plaintiff nor her attorney had conducted  any investigation into the facts, the law, or plaintiff’s burden of proof for trial,  their demand for settlement was very high – too high for the defendant to agree with, given the strengths and weaknesses of defendant’s case. Plaintiff believes that her expert will save the day and win the trial for the plaintiff. 

       But, from the little bit I know about expert testimony, such testimony has to be based on facts, not speculation. So. . . without the facts and supporting documents, the expert may not  even qualify as an expert much less as a white knight riding in to save the  trial ! 

       I dwell on this experience because it poignantly demonstrates the necessity of preparation: one cannot realistically expect to settle a matter unless she knows the strengths and weaknesses of her side of the matter and of her opponent’s side of the matter, and one will not know these things without conducting an investigation into the facts and the law. Without such preparation, any attempt to settle is futile as it is based on unrealistic expectations and unrealistic views of the potential benefits/risks of proceeding to trial.

       So. . . to quote the Boy Scouts: “Be Prepared!” I cannot emphasize this enough. Be Prepared! Be Prepared! Be Prepared!

      . . . Just something to think about.     


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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