Is your notice of appeal likely to generate settlement leverage?

Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal.

Good luck with that.

It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds?

That said, cases do settle on appeal, and some factors in a given case can do a great deal to encourage both sides to settle. (I’ll cover some of those factors in a future post.) Recognizing that some parties, and especially respondents, are less likely to settle on appeal, some courts with mediation programs have required the parties to make some showing that the case has a chance of settling before the court will assign a mediator. Thus, even if the parties are willing to talk, they may not be able to take advantage of the free mediation services offered through the court, and will instead have to engage a private mediator.

For a good overview of the differences between trial-level mediation and appellate mediation, check out this older blog post from last year from mediator David Karp.  David’s blog is one of the Member Blogs of the Month at the TEN Networks Blog, and I’ve gotten to know David a little through that group. His post is spot-on, and offers some insight he’s gained from volunteering his mediation services to the Court of Appeal.

How to make your mediation brief effective

There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediator Rande Sotomayor’s excellent article, “Effective Mediation Briefs,” in this month’s California Lawyer. I know Rande through my networking group, The Esquire Network (there’s my full disclosure), and have seen her present on other topics. I know her to be a very thoughtful mediator, and it shows in this article.

What I found particularly persuasive was her advice that lawyers should get over their penchant for keeping the entirety of their mediation briefs confidential:

Many lawyers submit “confidential” briefs to the mediator, hoping to avoid premature disclosure of their position. But if the brief is confidential, how can the information impress the folks sitting across the table?

A productive strategy is to deliver the message ahead of time, thereby promoting a worthwhile – and mutual – premediation evaluation of the case.

This approach conveys not only your (hopefully) winning arguments, but also what it will take to persuade your client to settle. Sharing a thoughtful brief in advance also allows everyone to discover unanticipated areas of agreement. Then, the parties can drill down to the real areas of disagreement at the heart of their dispute.

A lot of lawyers are going to have a problem with this advice, out of fear that the adverse party will approach the mediation as a chance to learn how best to manage the case rather than as a meaningful effort toward settlement. You can mitigate the chances of this by making your mediation brief effective in other ways (more tips on that in the article).
Lawyers may likewise fear tipping off the other side even if they are confident the other side is engaging in mediation in good faith. But is there any real danger here? Any opposing counsel worth his salt is going to figure out the bulk of your strategy anyway, either through papers filed during the course of the litigation or through effective discovery:
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.

(Code Civ. Proc., § 2030.010, subd. (b).) Similar information can be obtained through requests for admissions. (Code Civ. Proc.,  § 2033.010.) Unless you plan to stonewall or be cagey in discovery — or your opposing counsel is not sharp enough to utilize all the discovery tools at his disposal — you are not going to keep your strategy a complete secret anyway.
I think the advice to disclose one’s position goes double for appellate mediation, especially for the appellant. The appellant might have been on an equal footing with the respondent during the trial court proceedings, but with statewide reversal rates hovering around 20%, the appellant starts out as a huge underdog in the appeal.  The appellant’s most important task during the mediation is to convince the respondent that the appellant’s chances of succeeding are far higher than that 20% average. An appellant can’t do that without disclosing at least some of his strategy. I don’t worry about giving the respondent additional lead time to consider those arguments before my appellant’s opening brief is filed. The easy availability of extensions and the “grace period” for filing the respondent’s brief is going to give the respondent plenty of time in any event.

Rande’s piece has a lot of great tips. Read it for advice on how to communicate with the mediator and the adverse party, through your mediation brief and otherwise.