New ADR Process Provides Valuable Tool For Corporate And Outside Counsel

Friday, September 1, 2006 - 01:00

Hon. Richard A. Levie (Ret.) and Hon. Curtis E. von Kann (Ret.)
JAMS, The Resolution Experts

As ADR continues to expand and develop new forms of dispute resolution, corporate counsel overseeing high stakes legal disputes should be aware of a new ADR process that can greatly boost their chances of success and avoid the disruption, expense and uncertainty of such disputes to the daily, efficient operations of the corporation.

All sophisticated attorneys today are familiar with mediation, arbitration, neutral case evaluation and other traditional ADR forms. However, in recent years, a different process, consisting of a "new and improved" version of a longtime litigator's standby, is coming into increasing use as a valuable ADR tool: neutral-conducted moot court and case assessment. While trial and appellate lawyers have long enlisted attorneys from their firm or client to critique a run-through of their proposed presentations, these exercises have one inherent weakness. Inevitably, those closest to a dispute may view it differently than an uninvolved decision-maker who has no history with the matter and no stake in its outcome.

In trying to decide how best to present one's case, there is simply no substitute for an independent appraisal. A carefully selected former judge or seasoned litigator, who has no prior knowledge of the matter but does have a proven record of fair, objective, and thoughtful analysis, brings to the process a perspective that closely parallels that of the actual decision-maker. Having such an individual conduct the moot court and provide a detailed case assessment is the "value added" component that, in the opinion of Robert Lavet, Senior Vice President and General Counsel of SLM Corporation ("Sallie Mae"), makes the process "invaluablewell worth the modest expensewith no down side."

When Can It Be Used?

Neutral-conducted moot courts and case assessments can be used in a wide variety of settings. For example:

Counsel for the retaining party can present to the neutral the briefs and oral arguments he or she intends to present to a trial court or arbitration panel in connection with an important motion (dismissal, summary judgment, class certification, discovery sanctions, etc.).

Counsel may conduct the direct examination of a key witness (lay or expert) and may have a colleague conduct the cross-examination anticipated from the other side.

Counsel may make the opening statement or closing argument planned for a forthcoming trial or arbitration.

Counsel may present the briefs and oral argument that they are planning to submit to an appellate court. If desired, counsel may have a colleague present the expected argument of the other side.

How Does It Work?

Typically, a party desiring to employ this form of ADR will contact JAMS or another ADR provider and engage one or more neutrals to conduct the process. The party might want to select former trial or appellate judges or experienced litigators.

Whatever their background, it is essential that the chosen neutrals have a proven capacity for thoroughly studying the case material and preparing for the exercise, conducting proceedings in a realistic and rigorous fashion, and providing a clear, honest, and insightful assessment of the strengths and weaknesses of the party's presentation. That assessment should address such subjects as which arguments or assertions by counsel (or pieces of testimony by the witness) were effective, which were not, and why. Were points omitted that should have been addressed? Were things included that should be dropped (because they wasted time, confused the presentation, generated adverse reactions, etc.)? Should the order of presentation be changed? (Sometimes the proper sequencing of argument or testimony can greatly enhance its effectiveness.) Does the party need to rethink its position on some or all of the issues and come up with more persuasive reasons for the decision-maker to find in its favor?

After the neutrals have studied the briefs or other relevant case materials, they will conduct the moot court exactly as it would occur in the real trial, appeal, or arbitration. The presentation is made by the same counsel who will do so before the actual decision-makers. To get the most "bang for the buck," the session should be attended by the corporate counsel and senior executives who are responsible to the Board of Directors for the outcome of this dispute. That way, they can see for themselves how well (or how badly) the company's position is faring with the surrogate decision-makers and whether adjustments, minor or major, are in order. Immediately following the presentation, the neutrals will assess and critique the presentation, identify areas where further work may be needed, and answer questions from counsel and company executives concerning how and why they reacted to particular aspects of the presentation. In some cases, it may be helpful to repeat the process after a party has made significant presentation revisions dictated by the first session.

A Recent Example

Recently, the authors were retained to conduct a moot court and case assessment for a party seeking to uphold on appeal a grant of summary judgment in its favor. Each of us was supplied with the appellate record and briefs, which we reviewed separately and without consultation. In the presence of the responsible client executive, appellee's counsel presented his oral argument to us, and we questioned him extensively on a variety of points. During the critique that followed, it became clear that both of us had the same reaction to the case, although each of us reached our conclusions for somewhat different reasons. We both agreed that the presentation could be made more effective by reordering certain of the arguments and emphasizing particular aspects of the record. Both counsel and client told us that they found the exercise extremely helpful. A few weeks later we were advised that, during the actual appellate argument, no questions were asked that had not been discussed during the moot court.

An Added Benefit: Confidentiality

For years, ADR neutrals have been providing case evaluations, formal or informal, to both parties in a dispute, either as part of a mediation or as a discrete "neutral case evaluation" process. Such evaluations may assist parties in reaching a settlement. However, in cases that have not settled and are headed for determination by a trial or appellate court or arbitration panel, the ADR process described here has the added benefit of confidentiality. Since only one party has engaged the ADR neutral(s), only that party participates in the moot court and receives the neutral case assessment. That assessment, and the resulting revision or fine-tuning of the party's presentation, may provide the added edge that proves decisive in the ultimate resolution of the case.

Costs Are Modest

Generally, the costs of this valuable new ADR tool are surprisingly modest. In most cases, the neutral will be able to review and analyze the necessary case materials in a day or so and conduct the moot court and case assessment in a single morning or afternoon. In complex cases, additional time may be required. However, as observed by David Hensler, a senior litigation partner at Hogan & Hartson, the costs of this ADR process are small when compared to overall litigation costs and the amount at stake in major corporate litigation.

Accolades For The Process

According to Michael Jaffe, a senior litigation partner at Thelen Reid & Priest who has utilized neutral-conducted moot court and case assessment, "a neutral perspective allows you to evaluate your position in a new light." The impressions of an experienced neutral, when supported by informed analysis and solid reasoning, carry a different resonance for a client than the views of even the most experienced corporate or outside counsel. The ADR neutral, after all, will be learning the issues and approaching the decision from essentially the same perspective as the judges or arbitrators who will decide the case. The process may surface new issues or insights for counsel who have lived with the case too long to see it fresh. Even if the neutral confirms that the party's presentation is 100 percent dead on, wouldn't you like to have that assessment available to pass on to any corporate executives, directors, or major stockholders who might ask why the company is presenting its case in this way?

Conclusion

Neutral-conducted moot court and case assessment is a new ADR tool that is relatively inexpensive, confidential, can have tremendous value, and has virtually no down side. Add it to your ADR tool kit and you will be that much better equipped to achieve the best possible results for your company.

Richard Levie and Curtis von Kann are retired judges of the District of Columbia Superior Court who now serve as ADR neutrals in the Washington, DC office of JAMS, The Resolution Experts. They can be reached at 202-942-9180.

Please email the authors at rlevie@jamsadr.com or cvonkann@jamsadr.com with questions about this article.