Settlement
Alternative Dispute Resolution: How Can I Settle My Case?
Lawsuits are often settled “out of court” using a variety of procedures. Frequently these procedures are referred to as “Alternative Dispute Resolution” or “ADR.” A lawsuit can settle at any time during litigation – even during trial. Whether a case settles is based upon a large number of factors. The most important factor is the parties’ interest in settling. Other factors include the desire to resolve the case sooner than later, avoiding the uncertainty of trial, and reducing litigation costs.
Courts Want You to Settle
A court cannot force you to settle your case. However the court system by its nature depends upon settlement as a means of reducing the tremendous number of lawsuits that are filed on a daily basis. Those lawsuits require the attention of not only the judges, but of all the court personnel involved in processing lawsuits. Although many cases are filed every day, very few actually make it to trial for a number of reasons. One of those reasons is that people would rather settle than take their chances at trial. The Court’s recognize that settlement can be beneficial not only to the smooth operation of the justice system, but to the parties as well.
Settlement Conferences
Often parties are either ordered or encourage to participate in a settlement conference. Settlement conferences typically involve a judge or magistrate and occur at a courthouse. “Mandatory” settlement conferences. Are court ordered; although the court cannot order the parties to settle, it can order the parties to sit across from each other and try. With a little help from a neutral judge, sometimes this actually works.
Mediations
Mediations typically do not involve the courts. Mediations use private mediators or “neutrals” who either volunteer or are paid by the parties to help them settle their case. More often than not the parties would rather deal with a nice, neutral person than the party they have been in litigation against.
Selection of the Mediator
Mediators are typically either attorneys or retired judges. They typically have a knack for dealing with difficult parties and have litigation experience in their former careers as litigators/judges. They work for themselves or mediation firms. They are usually good with people and have the ability to stand back and size up a dispute. A good mediator will listen to a party and try to address the concerns the party expresses. The mediator doesn’t root for one party or the other, and doesn’t care how much or how the case gets resolved, so long as he or she can find a way to get the parties to resolve their dispute amicably.
How Does a Mediation Work?
Mediation is an informal conference involving the parties, usually held at the office of either the Plaintiff or the Defendants’ attorneys. The conference is conducted by a neutral third person – a mediator – who meets with each side privately to discuss the strengths and weaknesses of the case in an effort to bring about a settlement. Typically, the parties and their counsel sit in separate rooms as the mediator shuttles back and forth, talking about the case. Mediations can last all day, but good mediators know how to keep the parties engaged and interested in settling. At some point in time mediators will expect the plaintiff to make a monetary demand, and then obtain an offer from the Defendants in response. Once underway, it is not unusual for many counter demands and counter offers to be exchanged.
Can What I Say At Mediation Be Used Against Me?
Sort of. You typically won’t be talking directly to the Defendants during the mediation, but even if you did, mediations involve settlement discussions that are typically confidential in nature. The purpose of mediation, after all, is to get the parties to speak freely without having their words come back to haunt them. For example, you might have a Defendant express remorse for their conduct at a mediation, a sentiment it would never express at trial. Despite the confidential nature of mediation, it is still important to understand that any information shared by you can be used by the Defendant in the event the case doesn’t settle. Defendants may use information you provide them to conduct further discovery, contact undisclosed witnesses, or subpoena records. It is therefore important to have a negotiation strategy going into a mediation.
Settlement Agreements
Lawsuits don’t end with the lawyers shaking hands. Well, they might shake hands – but they’ll get something in writing first. Usually a lawsuit ends with the parties signing a settlement agreement. Once an agreement is signed, the Plaintiff will dismiss the lawsuit. Settlement agreements frequently contain a long list of monetary and non-monetary terms, all of which have some value of sort to each side. The agreement will usually specific how much, when, and how a Plaintiff will receive the settlement funds; whether the Plaintiff can be rehired; whether the terms of the agreement are confidential; what each side can say about each other. In most settlement agreements, Defendants expect to be released from all claims.
Discovery
How Do Parties Get Facts?
Once a lawsuit is filed the parties find out about the strength and weaknesses of their opponent’s position through the “discovery” process. “Discovery” is a term used to define the act of asking for and providing accurate information in a lawsuit in a formal manner. The California Code of Civil Procedure sets forth the statutory “rules” by which discovery is conducted. Through the discovery process the parties can get answers about each other’s contentions, witnesses, documents, damages, and defenses.
Are Their Limits?
There are limits to discovery, and those vary depending upon the forum you are in. Federal court is typically more restrictive. In a typical employment case filed in California state court however, parties can be asked to produce a significant amount of information. For example, a party can be asked to answer interrogatories (formal questions) covering every aspect of the case. A Plaintiff can also be asked to produce documents including emails, witness statements, medical records, performance evaluations, job applications, and phone records. A defendant can be asked to produce documents including the plaintiff’s personnel file, coworker data, emails, phone records, and workplace policies and procedures. Every case is different, and the types of records that can be asked for are nearly endless.
Depositions
What is a Deposition?
A deposition is a question and answer session conducted by a party to a lawsuit. Typically, a lawyer representing either the Plaintiff or the Defendant sits across from the witness and asks questions pertinent to the lawsuit. Although the questioning typically occurs in a lawyer’s office, the witness provides the information under oath, and is considered to be testifying as if in court. A court reporter is present to record the testimony, and later prepares a transcript of the proceeding. The transcript contains what was said at the deposition verbatim. The transcript can be read back at trial or other proceedings.
Who Can Take a Deposition?
Either party to a lawsuit can take the deposition of the other party, as well as non-party witnesses. In a lawsuit a Plaintiff is almost always asked to testify, as are key defense witnesses. Parties are, with few exceptions, obligated to appear and testify if asked. Witnesses who are not parties to the lawsuit (commonly referred to as “third party witnesses”) must be subpoenaed.
How Long Are Depositions?
Depositions can last hours or days, depending upon the information the witness has.
Will I be Videotaped?
It is not uncommon for depositions to be videotaped. However we can help you get comfortable with the process.
At Will Employment
Labor Code § 2922 generally lays out the employee/employer relationships in Calfornia:
“An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.” The statute creates a presumption that the employment is at will. Because it is based on public policy considerations, the presumption affects the burden of proof (Ev.C. § 605). Therefore, the burden is on the employee to prove the employment was not at will by evidence of a contract, express or implied, for a fixed term or to terminate only for cause. In fact, your employer doesn’t even need to treat all employees alike; so long as their conduct doesn’t violate the law, they can play favorites!
Can I Be Fired Without a Reason?
Generally yes, but there are exceptions. If you don’t fit into the exceptions, the employer’s motives for firing an employee are not relevant. Since your employer typically doesn’t need “good cause” to fire you, they can fire you for no reason or even reasons which you may disagree with.
What Are the Exceptions?
Your employer can’t fire you for an illegal reason. For example, while an employer doesn’t need to have a reason to fire you, if you are fired for an illegal reason (for example, the color of your skin or your gender), this is an exception to the “at will” doctrine and the termination may be wrongful. There are statutory restrictions on what an employer can do: for example, you can’t be fired because of your age, race, gender, national origin, disability, and taking protected leave. There are many different “protected classes” and it is important that you consult with an attorney to determine if you fall within a protected classification.
Whistleblowing
Although an employer typically has broad authority to fire employees at will, this authority may be limited by statute or the State’s “public policy.” Generally, this means that an employer can’t fire you if doing so is in violation of what can be proven to be the public policy of the state.
What If My Employer Didn’t Actually Violate the Law?
You typically don’t have to prove that your employer actually violated the law so long as you had reasonable suspicion that your employer violated the law. And as long as your employer believes you reported statutory violations by the employer, that is often sufficient to support a whistleblower claim.
I Want to Sue My Employer. Who Exactly Can Be Sued?
Supervisors and coworkers may be held personally liable for intentional torts involving physical touching of the plaintiff, such as assault and battery, false imprisonment and intentional infliction of emotional distress; and for invasion of privacy. However a supervisor cannot be held personally liable under the FEHA or for discharge in violation of public policy for discrimination relating to personnel management decisions.
Can I Sue For Negligence?
Claims of physical injury based on negligence by supervisors or coworkers are generally preempted by California workers’ compensation laws. Typically, if you were injured because of the negligence of your employer, you can’t sue your supervisor or employer; you’ll need to file a Worker’s Compensation claim.
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