Publications

In September, 2013 changes were made to the Rules of the Commercial Division of the Supreme Court (Section 202.70). These changes most importantly were to Rule 8 - Meet and Confer and Rule 13 - Expanded Expert Witness Discovery. Rule 8(b) specifically targets Electronically Stored Information (ESI) and the discovery of sa...

Most trial lawyers and insurance company adjusters are "old pros" when it comes to mediating a personal injury case. But, if old dogs can learn something new, then re-thinking the mediation of personal injury cases may prove helpful. Let's assume the following fact pattern: A worker was injured in a fall while descendi...

Many health insurance plan agreements contain language in which the patient agrees, by virtue of their participation in the plan, that any medical malpractice claim will be heard by an arbitrator rather than in court by a jury. In other instances, medical providers and facilities have arbitration clauses contained in the pap...

The parties to a medical malpractice mediation can assist the neutral in helping them achieve a resolution of the claim in issue by presenting their respective positions in a clear and concise manner which helps to identify and limit complex medical issues. Traditionally, the parties to such a mediation have provided the neu...

1. Always submit a brief. 2. Use the brief to educate the mediator and your adversary as to your position in advance of the mediation. 3. Use the brief to maximize your use of time and to avoid lengthy arguments during the joint session. 4. Always exchange the brief with your adversary. 5. Exclude from the brief any ...

Having been a mediator in the Court system and now in the private sector with NAM (National Arbitration and Mediation), I have come to regard private mediation in a new light and with a new understanding about what a mediator can and cannot do, and what mediation can accomplish. Of course, the old rules that were followed in...

Assume that you are involved as a plaintiff or a defendant (carrier) in a serious injury case and that the injured party has collected workers' compensation so the issue of a lien payback will be part of any settlement. Also assume that the plaintiff may have sought, or is receiving social security disability payments or wil...

Although risk transfer is sometimes viewed as analogous to questions concerning a party's potential liability and exposure, the reality is that risk transfer - perhaps, more aptly described as liability transfer - is the true "money game." A successful transfer of a party's defense and indemnification at the start of a lawsu...

"Tense" can be a good thing. The 2nd Circuit just reminded us that your arbitration agreements need to be clear as to the point in time when compulsory arbitration clauses are effective. The "tense" of your verbs matters. In Allstate v. Mun, Docket No. 13-1424-cv. (decided May 6, 2014), the Court allowed Allstate to proce...

1. Prepare the client for the mediation much in the way you prepare them for trial. 2. Consider how you will manage their expectations. 3. Give them a realistic analysis of the strengths and weaknesses of their case in advance. 4. Discuss the mediation process in detail. 5. Explain the mediator's background and r...