Home > ADR, Attorneys, judicial hellhole, Mediation, Politics > The “Judicial Hellhole” Label and Managing Expectations

The “Judicial Hellhole” Label and Managing Expectations

The American Tort Reform Foundation’s Judicial Hellholes® 2008/2009 (“ATRA”) report has again bestowed the #1 “hellhole” label upon the State of West Virginia.  Although this news has frequently been reported on in the local, state and national media, this post will offer thoughts on how this designation potentially impacts the mediation of litigated cases in West Virgina.  My view is that the designation has potential ramifications on the ever important role played by counsel and mediators in managing expectations before and during the mediation.  After a brief discussion concerning the report, I will offer suggestions and tips concerning this significant aspect of settlement negotiation and mediation.

The ATRA report defines a Judicial Hellhole as “places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits.”  With regard to West Virginia specifically, the ATRA report makes the following pronouncement in awarding West Virginia its #1 ranking:

West Virginia reclaims the #1 ranking this year for its near perfect storm of anti-business rulings, massive lawsuits and cozy relationships between the personal injury bar, the state attorney general and some in the judiciary. The state’s highest court has a history of plaintiff-biased decisions, paying damages to those who are not injured, allowing mass trials, permitting lawsuits outside the workers’ compensation system, rejecting long-established legal principles, and welcoming plaintiffs’ lawyers from other states to take advantage of its generous rulings. To make matters worse, West Virginia is one of only two states that do not guarantee a right to appeal a civil verdict, even if a multimillion-dollar award is clearly excessive under the law or the trial court violated procedural fairness by allowing a jury to decide punitive damages before it found a defendant legally responsible for a claim. There also may be no state with a closer alliance between the state attorney general and politically-connected personal injury lawyers. This alliance has wreaked havoc at the expense of civil justice.

Writing from my perspective as a mediator, I will not join the debate as to the fairness of or the validity of the methodology employed by ATRA in compiling its “rankings” (an excellent article from the Register-Herald in January, 2008, compared and contrasted the competing views here in West Virginia on this designation, quoting Governor Manchin, attorney Teresa Toriseva of the West Virginia Association of Justice, attorney and State Senate Majority Leader Truman Chafin, Steve Roberts of the West Virginia Chamber of Commerce and Steve Cohen of the West Virginia Citizens Against Lawsuit Abuse).  Scholars have also joined the debate.  See, e.g., R. Brisbin and J. Kilwein, The Future of the West Virginia Judiciary: Problems and Policy Opinions, West Virginia Public Affairs Repoter, October 2007; E. Thornsburg, Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons From West Virginia, West Virginia Law Review, Vol . 110, No. 3, 2008.   Suffice it say that this issue is hotly contested.

What is important to me, as an attorney and mediator, is how this designation potentially impacts the negotiation and mediation of litigated disputes.  In this regard,  I have often been confronted with the need to balance my client’s expectations against my evaluation of what should reasonably be anticipated under the totality of the facts and circumstances surrounding any given case.  In dealing with a plaintiff, my experience is that managing expectations is more difficult when the client reads about other verdicts and reads that West Virginia is a plaintiff-oriented jurisdiction.  On the other hand, defense clients who have read the same reports sometimes believe every action against them is a “frivolous lawsuit” which should be dismissed without them paying a dime in settlement.   When such cases  go to trial and the verdict favors your opponent, the cold, hard reality is difficult to accept, especially if the case could have been settled had the client’s expectations been more reasonable.

While in the end it will have been the client who made the call to go to trial, we attorneys will regret looking back and questioning whether a little better counseling and management of expectations would have gotten the case settled.   And we should also recognize that management of expectations extends to the management of our opponent’s expectations prior to any settlement negotiations.   

In his blog, Settlement Perspectives, John DeGrote discusses managing your client’s expectations from the client’s perspective so that they can :  (1) warn others with a stake in the outcome early – their shareholders, their bosses, their insurers, their spouses and more; (2) decide whether the amount of time, money and effort to be spent on the case need to be adjusted; and (3) so they can get used to the idea themselves.

In his blog, California mediator Kevin McIvers offers Mediation Tips about managing expectations, the need to avoid surprises at mediation and the benefits and potential pitfalls of pre-mediation negotiations.  On the critical role of managing your opponent’s expectations prior to mediation, he offers the following comments:  The key ingredient for any successful mediation has nothing to do what happens when you get there. It is management of the other side’s expectations before you get to the table. This has to do with: (1) the education of the opponent about the merits; (2) demonstration of your mastery of the other side’s case; (3) clarity about your commitment to the case; (4) and crystal clear communication about your pre-mediation negotiating position. These are achieved by written or informal communication about the case, conveying written settlement proposals, serving mediation briefs, and avoiding big surprises at mediation.

Mr. McIvers further suggests that attorneys ask themselves three questions before mediation: (1) does the other side know, at least generally, what my opening position will be at mediation?; (2) does the other side know most of my best points, and appreciate that I understand theirs?; and (3) are there any facts or law that will take the opposition by surprise at mediation, which significantly effect my client’s position?

In reflecting on these points, my conclusion is that the best negotiators are those who bring credibility to the table.  They are in control of their side of the table.  They anticipate and confront strengths and weaknesses from the other side of the table.  They are prepared and knowledgeable about the facts and the law.  They have credibility when they say they are ready to go to trial if settlement cannot be achieved.  

While the debate may never end concerning West Virginia’s status compared to other jurisdictions, attorneys must be aware of the critical issues influencing clients and their opponents in preparing for and participating in settlement negotiations. Simply put, management of expectations is one tool you should use.    

An experienced mediator will assess and, if necessary, help counsel on both sides manage expectations to facilitate settlement.  To hire me as a mediator — click here “Mediating with Keith Jones”

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  1. February 13, 2009 at 12:12 am

    Keith–

    Welcome to the blogging world — we’re happy you joined the conversation.

    You and I clearly have similar views on the need to manage expectations — our own clients’ and the other side’s. To explore this topic further, you may also want to see my article titled “One Reason To Manage The Other Sides Expectations,” also at Settlement Perspectives.

    I’m looking forward to following Mediating Certainty in the months and years to come–

    JD

  2. attorneyjones
    February 14, 2009 at 1:05 pm

    John: Thanks for your suggestion. Keith

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