CivPro_Outline_Arkin[1] - I CHOOSING A SYSTEM OF...

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I. CHOOSING A SYSTEM OF PROCEDURE (Judge’s role, different models): Contingent-fee system : counsel agrees to represent client for fixed percentage of the net of whatever’s recovered by either settlement or trial. Incentive on both sides to settle early to obtain fewer sunk costs. Reflects view that people should have access to courts. Loser pays other side’s attorney fees. (English model, Part of Bush’s Tort-reform package). Has large effect on access to courts—bringing suit has large risks. A. Band’s Refuse Removal, Inc. v. Borough of Fair Lawn , NJ 1960 HOLDING: Trial judge below committed prejudicial error by favoring one party; abandoned his role as neutral arbiter and finder of fact/law and became an advocate. Ex-parte communication : communication to a represented party w/o their representation, NOT OK. FRCP 26(f): Mandates that as soon as practical, or at least 21 days before trial(?) parties must meet regarding nature and basis of claims and possibility of settlement. Parties must also arrange for mandatory disclosure of all relevant documents, witnesses and how to find them, information on how damages were computed, any insurance agreement. Receipt of info. by the court leads to Rule 16 conference—controversial b/c judge learns a lot that could be prejudicial. So, option of settlement hearings in front of a mediator. FRCP 16: In a pre-trial/settlement conference, judge will look at presentation of issues, narrow some, stipulate rules as to evidence and facts and streamline trial. o Mechanism of the settlement : π agrees to take a stipulated (w/ agreement of parties) or voluntary dismissal (dismissal w/ prejudice so they can’t file again); no obligation to tell court terms of settlement b/c it might become public record. Judge in Band’s could not have stopped parties from settling for the public interest or have intervened if settlement amount was too high/low, b/c trial was not for the public’s interest, but between the parties. In Agent Orange , judge intervened b/c of settlement amount, but it was a class action . Judge can’t otherwise intervene regarding the amount, it’s a party-driven system and it’s their prerogative to over- or under-pay. Kothe v. Smith , 2 nd Circuit, 1985 , HOLDING: Pressure tactics for parties to settle, and sanctions when they fail to do so w/in judge’s desired time-frame not allowed. Judge’s conduct akin to German model, investigative. Ethical Rule 76 requires that in course of settlement negotiations, counsel convey offers and keep client reasonably informed so that she can make informed decisions. Client has final say on whether to accept an offer. Must send someone w/ settlement authority, or have someone w/ settlement authority readily/reasonably available at pretrial conference. In case of surprise move, can ask for time to confer w/ client.
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This note was uploaded on 01/10/2011 for the course LAW Civ Pro taught by Professor Arkin during the Spring '10 term at Fordham.

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CivPro_Outline_Arkin[1] - I CHOOSING A SYSTEM OF...

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