How to Feed a Lawyer (and Other Irreverent Observations from the Legal Underground)

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Just showing up with a number doesn't even require a few hours, just a piece of software and two computers with an Internet connection.

Many clients don't see the weaknesses in their own case until a mediator points it out, or they see for the first time the evidence that is arrayed against them. A good mediator can help change a number.


Hey - as an in-house counsel who gets my behind dragged all over the tri-state area for mediations (who on earth decided I'd be happier and more ready to pay money if I had to get up at 5:00 am to drive to Kansas City or St. Louis just to listen to plaintiff's counsel put on an unimpressive dog and pony show?), I would officially like to know who has the goody baskets in Missouri. My mediations all have spartan accomodations with the thermostat turned down to fifty degrees in some bizarre attempt to starve/freeze us into submission. And coming from a criminal law background (prosecution), I'd be much happier to give the bottom line and stay the heck home, but nobody will LET me.

As far as the theories involved, it's best from my employer's point of view to figure out honestly what the case is likely to go for and shoot for that. While juries are unpredictable, and will sometimes bite you in the behind, there does come a point where if an overtly irrational sum of money needs to be paid, it's better coming from them than me.


and if in-house adjusters - particularly those who are also attorneys - are not cognizant of the flaws in their case well prior to mediation, they should be looking for new employment. I can understand laypeople being ignorant, though I wish their attorneys would exercise a tad more client control, but professionals should never have that issue.


This mediation was downtown St. Louis and exceedingly comfortable. And the mediator we had is, by reputation, one of the absolute best. He is a very well-respected "old gentleman" attorney. He did tell us that some places do try little psychological tricks like heat/cold or food deprivation to get people to cave, but I didn't believe him. I suppose if that happened to me once, I would prepare in the future by bringing enough food & drink for me and my client, reading materials, and wearing layers. I'm stubborn enough that I would see such tactics as a challenge to be overcome.

Unless, of course, I thought that my client was being unreasonable. Then maybe I'd keep the snacks to myself.


No one picks mediators by their goodies, but if you settle case at JAMS In San Francisco you get a "resolution" pen. But I digress. The client control issue is any interesting one as I am in an inhouse position similar to the anonymous "Me," above. If counsel tried to manage me at a mediation I'd tell him to go sit in the corner and shut the hell up. In fact, I did once. Somewhere in the southern midwest, and that gy will never do work for me again. I never, never tell counsel what the number is, nor do I let them say anything to the mediator unless I've discussed with them in private excatly what they're going to say. All of that said, mediations where some parties are completely ignorant of the litigation process are a nightmare because the lawyer really does have to mage the client, and a lot of them either can' or won't.

Anyway, a real high stakes mediation where all sides are represented by skilled counsel and all the clients are sophisticated adjusters or inhouse counsel is just about the most fun you can have. I love waiting for the red eye at LAX or SFO after just having worked a long day to get a case settled. It's a huge high, even without goodies.


I do it a bit differently - I hire outside counsel I know can value cases, and I do share the numbers, then we can double-team the mediator. If I think it will be effective, though, I tell counsel to let me play the stubborn/intransigent adjuster in a sort of good cop/bad cop routine. I then sit back and let them "talk" me into my own number. That's always fun.


The truth is, I have learned that lawyers pick their mediator based on who gives away the best goodies.

Wrong. That's how we pick court-reporting firms.


mythago beat me to it on the court-reporter goodies. The absolute worst goody experience happened to me at a videoconference/videotape deposition recently - the table was groaning under all of the snack bowls -- candies, fresh-baked cookies, soft drinks, fruits and nuts -- and everyone just sat there staring at the bowls for four hours because no one wanted to be the one to reach for the food on video.

The Next Belli

Mediations do work, young Jedi Associate. Pick a mediator who isn't a shil for either side. Wait until halfway thru the lit process to mediate.

Make mediation mandatory in order to get to trial, and you will be talking REAL tort reform.

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