Tuesday, March 29, 2016

Mediation and Alternative Dispute Resolutions in Motor Vehicle Accidents

After a motor vehicle accident, or other type of injury claim, there is a process that is routinely followed before there is formal litigation. In other words, a person does not sue the very next day after he or she is injured as the result of a negligent party. Because of liability insurance, there is an opportunity to settle a claim short of a lawsuit.

Settlement negotiations do not need to be formal. Indeed, opposing counsel can call the other side at any time to make an offer to settle. Other times, a claim may be ripe for mediation.

Mediation is a form of alternative dispute resolution. Due to congestion at the courts, and the long wait for a trial date (in central Los Angeles, the Superior Court will set a trial date two years from the date of filing), parties are using mediation, and other types of alternative dispute resolution. In fact, it is used frequently in motor vehicle accident cases. Plaintiff attorneys, defense attorneys, and insurance carriers see the value in using mediation before trial.

In a mediation, a neutral party (often a former judge) sits with the plaintiff and the defendant. The neutral is trained to facilitate a mutually beneficial result for both sides. Each mediator has a different style, but the basics remain the same. It is a voluntary process in which both parties agree to come together for the purpose of trying to reach a settlement. It is non-binding, and if one party does not want to settle at mediation, the claim can continue onto trial, or litigation, whatever stage of the case the claim may be in.

Costs of mediation are typically split between the two sides, but sometimes a persuasive plaintiff attorney can have the defense pay on behalf of the plaintiff. Anything said during the mediation is said pursuant to Evidence Code section 1152, meaning that it cannot be used against the party later on at trial, if there is not a settlement reached. Thus, each side can speak frankly and informally about the strengths and weaknesses of their respective cases.

There are a number of different mediation methods available. Parties can pay and use a professional mediation service. Sometimes the local court will have a free mediator (volunteer who wants to help) available to the parties. Alternatively, parties can use an independent attorney who also happens to mediate cases. Generally speaking, mediation is provided by a range of different providers.

Mediation can be extremely helpful in allowing the insurance adjuster put a face on the claimant. Often it is difficult to understand the severity of an injury until you see and hear it from the injured party himself/herself! Mediation allows the plaintiff to tell his/her particular story as only the plaintiff can.

If you or someone you know has an injury claim, speak with an experienced attorney to determine whether mediation would be beneficial.

Saturday, March 12, 2016

The Power of Impeachment in TV's People v. O.J. Simpson

Twenty years have passed since the O.J. Simpson trial led to an acquittal. The sensationalism of the trial made the case one of the most watched in the 20th century. A beloved sports hero, actor, and celebrity was the "star" of the court proceedings. Everyone had an opinion as to whether O.J. was guilty or innocent.

Almost the same notoriety went to his team of attorneys, appropriately called the "Dream Team." Together, they faced incredible evidentiary odds to secure a "not guilty" for their client. The leadership of Johnny Cochran, exquisite trial attorney, was inspiring for the criminal defense bar. Remember: everyone, no exceptions, deserves due process and an effective defense at trial.

The miniseries on FX, The People v. O.J. Simpson, makes for good television. While it does not accurately portray the case in its entirety, it does hit home what the defense wanted to accomplish. At one point in the series, Courtney B. Vance, who plays Mr. Cochran, perfectly explains the objective for trial. The defense must tell the better story. "Whoever can tell the better story will win the case."

In real life, attorneys must do the same. The narrative and theme is important. It helps the jury weigh the evidence and come to a decision.

During the time of O.J. Simpson's trial, Los Angeles was still trying to recover from the Rodney King riots. Only a couple of years had passed when LAPD officers had beaten a black man on video and then were subsequently cleared of wrongdoing. Racial tensions were high. The Los Angeles Police Department were still dealing with institutional racism.

Knowing this, the Dream Team concocted a winning theme. Question the validity of all evidence gathered by the LAPD, and hit home the unmistakable fact: O.J. Simpson is a Black-American who was facing accusations from predominantly white police officers, some of whom were suspected of holding racial prejudices. 

It goes without saying that not all police officers who worked on the O.J. Simpson case were racists, or had prejudice in their hearts. However, one detective on the case, Mark Fuhrman, was said to have used the N-word on many occasions. There were rumors that he collected Nazi paraphernalia.

At trial, these facts were put to use. When Detective Fuhrman testified, F. Lee Bailey, one of Mr. Simpson's defense attorneys, "impeached" him. Impeachment is a tool used by attorneys to undermine the credibility of the testimony being given. It helps the jury decide whether they should trust what the person is testifying to. There are many ways of impeaching a witness. One way is to point out the inconsistencies in the testimony.

Detective Fuhrman flat-out denied that he had ever used the N-word. Without much effort, the defense was able to provide evidence that he had indeed used the word before. This immediately caused the jury to question his reliability. Not only on the question of whether he had ever used racially-charged language, but whether he had lied about the evidence collected at the scene of the crime. The blood, the gloves, and other physical evidence used by the prosecution were undermined.

The impeachment of Detective Fuhrman fit the Dream Team's theme. Could the LAPD be trusted, given their racial history? Would a racist cop try to frame a black celebrity? What if the prosecution's evidence was tainted? All these questions led to reasonable doubt. And reasonable doubt is all a defense needs when a defendant goes to trial.