Agenda for 21st Class

1. Agenda for 21st Class • Admin • Handouts • Name plates • Discussion of mock mediation • Arbitration • Fees • Fee shifting problem • Accounting in A Civil Action • Intro to joinder

2. Assignment for Next Class • Joinder • FRCP 13, 14, 18, 20, 21 • Yeazell 793-97, 812-19 • Questions to think about / Writing assignment • Pp. 816 Q5 • Briefly summarize Price • Pp. 818ff. Qs 1-2 • Optional: GlannonChapters 13-14 (Joinder)

3. Mock Mediation • Numbers • Reactions?

4. Arbitration I • Adjudication by private judge under rules agreed to by parties • Must be agreed to by parties • Pre-dispute. In contract, before dispute arises • After dispute arises • Arbitration is legally binding • Party that agreed to arbitration and then changes its mind can be compelled to arbitrate • Court will dismiss case • Arbitrator can enter equivalent of default judgment • Arbitration awards are enforceable in court • Arbitration awards are not generally appealable • Arbitration may be through established organizations (non-profit or for profit) • American Arbitration Association, JAMS • Organizations have panels of arbitrators and set rules

5. Arbitration II • Parties to arbitration generally have control over who arbitrators are • Either agree on arbitrators in advance • Or agree to procedure for selecting arbitrator • E.g. Start with list and each side strikes those like least, etc. • Procedure may be set out in organization rules (AAA or JAMS) or may be negotiated by parties • Often arbitrators are retired judges, but can be anyone • E.g. Writers Guild has writers as arbitrators • Parties to arbitration generally have control over procedures • AAA and JAMS have rules that can choose • Or can set out own rules • E.g. Writers Guild. Everything in writing, no oral hearing or testimony

6. Arbitration III • Arbitration is controversial • Especially in consumer contracts • Where business may put arbitration clause in form contract stipulating defendant friendly arbitrators and procedures (e.g. no class actions) • Federal law promotes arbitration • Federal American Arbitration Act is interpreted to require states to enforce arbitration agreements, except in rare circumstances • Agreement was unconscionable or otherwise defective under ordinary state law contract principles (e.g. fraud, duress), or • Procedure violative of due process (e.g. biased judges) • Very hard to prove, even though probably often true, because business generally chooses arbitration procedures, including rules for selection of arbitrators • Businesses are “repeat players” • So arbitration providers have incentive to please business, otherwise business will choose other arbitration provider in future.

7. Costs & Fees • Costs • Usually pretty minor– filing fees, court reporter, non-expert witness fees • According to 28 USC 1920 always paid by losing party • Fees • Lawyers fees • Usually large • American rule: each party pays own attorneys’ fees • British rule. Loser pays • If plaintiff wins, then defendant pays plaintiff’s lawyer’s fees • If defendant wins, then plaintiff pays defendant’s lawyers fees • Fee shifting always subject to judicial inquiry into reasonableness • Fee shifting problems • A Civil Action • Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

8. Intro to Joinder • Assumption – one plaintiff, one defendant, one claim, • unless rules specifically allow more • In general, rules allow joinder if claims and/or parties are closely related • But what “closely related” means varies depending on type of joinder • Complicated • Doesn’t matter tremendously • If claim can’t be joined, it can be brought separately • Joinder is mainly economizing divise • Also prevents inconsistent judgments • Separate claims can be “consolidated” • Treated almost as if in the same case • Even if cases are joined, they can be “severed” • If the judge thinks that doing so would make the case easier to manage