My 25 years of experience litigating complex matters assists me in being a better mediator. I was the lead attorney for USF&G in City of Evansville & Evansville Water & Sewer Util. v. U.S. Fid. & Guaranty Co., 965 N.E.2d 92 (Ind. App. 2012). Since the Indiana Court of Appeals videotapes oral arguments, I have proof to show attorneys and clients that I know what it is like to be in the trenches. Many of the issues raised by the justices in the clips below are the type of issues that can stall settlement discussions.
In City of Evansville v. USF&G, I convinced the trial court that my client had no obligation to defend or indemnify Evansville for millions of dollars that the United States Environmental Protection Agency deemed were necessary to improve the operation of Evansville’s combined sewer system. Evansville retained multiple experts who argued that the projects at issue would reduce future pollution and that under Indiana law insurers are generally liable to fund such “remediation” efforts. My client argued that all of the costs at issue were statutorily required operational improvements and, thus, not insured. After hearing the oral argument below, the Indiana Court of Appeals agreed, upholding summary judgment in my client’s favor. The following clips can provide some lessons for mediation in addition to litigation:
Good litigators present a succinct story for why their clients should prevail and listen to opposing counsel to highlight for the Court why their argument is incorrect. Here, I identify a fundamental flaw in opposing counsel’s argument and further respond to why there was not an “occurrence.” In mediating a case with two diametrically opposed narratives, it is important to be able to stress the risks to both sides that the Court might ultimately accept the other side’s paradigm.
At oral argument attorneys want to demonstrate that they have a solid grasp of the facts. The same is true for a mediator. I work hard to review the record submitted by the parties and, like here, will raise issues from the record when it might assist in demonstrating to a party that it faces litigation risks.
Often mediation takes place during a time period in which summary judgment motions are pending. Here, I respond to the panel’s questions as to why opposing counsel is wrong that summary judgment was improper by underscoring that the identical argument had been rejected by the Indiana Supreme Court in another case in which Mr. Plews and myself were attorneys. As a mediator it is important to remind parties that predicting the outcomes of summary judgment motions can be difficult, which provides a good opportunity for reaching a settlement.
Good lawyers and mediators have a solid understanding of the substantive law and the rationale for applicable statutes. Here, I help convince the court that the Clean Water Act was passed to require the expenditures at issue in the case.
Here, the appellate court acknowledges my experience in other cases. I was able to use that experience to my client’s advantage in City of Evansville and believe that I can use it to assist you in reaching a settlement in your next case.
Here, I explain why opposing counsel’s expert affidavits fail to raise a genuine issue of material fact. In Episode 2 of my podcast I discuss issues related to expert testimony and its impact on resolving complex cases. This clip shows that I have experience in dealing with matters that potentially turn on expert testimony.
Here, I highlight caselaw supporting my client’s argument that the costs to improve the sewer systems at issue were necessary to comply with legal requirements.
A good mediator is able to listen to the arguments that each party believes will lead them to victory and respectfully urge both sides to give greater consideration to the other side’s point of view. Here, I focus on portions of the record that appeared to concern the panel and explain why they did not support reversing the trial court’s ruling.
Here, the Indiana Court of Appeals congratulates me and opposing counsel for our well-prepared arguments and written appellate work. The court also has some fun with the fact that counsel for numerous other carriers allowed me to argue on their behalf as well. This clip really underscores something discussed in Episode 3 of the podcast – the Judge is always the funniest person in the Courtroom! As I note in that podcast, a mediator can use humor effectively to decrease the tension at mediation.