Material Preparation for Mediation and Trial

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Material Preparation for Mediation and Trial

• Barry Weintraub

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Outline

• Mediation
• Process
• The Mediator
• Mediation brief
• Techniques
• Strategy

• Trial preparation
• Request to admit
• Document brief
• Evidence issues
• Witness preparation
• Discovery admissions
• Cross-examination

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Three Key Themes

• Be prepared
• Consider the audience
• Anticipate the response

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The Mediation Process

• Agree on mediator
• Exchange briefs
• Opening statements
• Discussion of issues
• Bargaining
• Breakouts

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The Mediator

• Know prospective mediators styles
• Mediator is not a judge
• Neutral third party
• Only job is to get settlement

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Mediation Brief

• Important Opportunity to Convince
• Win over the mediator
• Speak directly to opposite party
• Address issues

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Contents of Mediation Brief

• Overview
• Synopsis
• Settlement discussion
• Key documents

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1. Overview

• Statement of theme
• Why your client should win
• 30 words or less

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2. Synopsis of the Case

• Tell what happened
• Refer to documents
• Arm the mediator
• Identify opponents exposures
• Answer opponents case
• Acknowledge weaknesses

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3. Set Stage for Negotiation

• Review the bidding
• Mediator doesnt know history
• Focus mediator on opponent
• Reasonableness rules
• Let mediator know youre not the problem

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4. Attach Key Documents

• Convince mediator and opponent
• Enhances credibility of synopsis
• Projects image of substance

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Mediators Techniques

• Focus on risks
• Costs pressure
• Build momentum
• End of day pressure
• Fear of failure

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Negotiation Strategy

• Establish upper hand on merits
• Focus on other partys risks
• Acknowledge risk
• Compromise, a bit
• Use the mediator

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Avoiding Failure

• Look for win-win solutions
• Throw opponent a bone
• Lay groundwork for later settlement
• Talk directly to other parties

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Closing the Deal

• Use or resist mediators techniques
• Get it in writing

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Preparation for Trial

• Requests to admit
• Document brief
• Evidence issues
• Witnesses
• Use of discovery transcripts

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Requests to Admit

• At least 20 days in advance
• Request to admit facts
• Requests to admit documents

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Document Brief

• Include all necessary documents
• Include only necessary documents
• Proof of authenticity
• Know document numbers

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Evidence Issues

• Evidence Act Notices
• Disputed documents
• Disputed testimony

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Evidence Act Notices

• Business Records Notice
• made in ordinary course of business
• in ordinary course of business to make them
• Notice re Use of Copies
• Expert Reports
• Proof of public documents

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Prepare for Evidentiary Issues

• Corroboration
• Collateral facts
• Hostile witnesses
• Hearsay and Exceptions
• Past recollections recorded
• Declarations against interest
• Res gestae

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Interview Witnesses

• What will they say?
• Assess motivation
• Reduce witness anxiety
• Get background information
• Witness document briefs

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Getting Witnesses There

• Decide who you want
• Serve witness summonses
• Proof of service

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Preparing Examination in Chief

• Assess witness ability
• Logical order of presentation
• Addressing weaknesses

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Use of Discovery Transcripts

• For admissions
• For cross-examination
• For impeachment

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Brief of Discovery Admissions

• Use clean admissions
• Organize brief of excerpts
• Must include qualifying evidence
• Exclude polluted admissions
• When to give to other side

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Cross-Examination Objectives

• Admissions you can get
• Minimize damage
• Impeach if necessary

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Preparing Cross-examination

• Importance of notes/real time transcripts
• Admissions from documents
• Best discovery admissions
• Qualified discovery admissions

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Mandatory Cross-examination

• Browne v. Dunn
• Challenge damaging evidence

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Impeachment

• Compile prior statements for impeachment
• Know discovery transcript