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Litigation & Arbitration

Nov. 8, 2017

Hon. Michael D. Marcus (Ret.)

ADR Services, Inc.

Marcus michael online
Los Angeles

Employment, Legal Malpractice, Business/Commercial, Medical Malpractice, Personal Injury

Michael D. Marcus, one of California's most experienced and respected neutrals, has been a mediator, arbitrator and discovery referee for over 16 years. He has mediated more than 3,000 matters and arbitrated over 70 cases involving all aspects of employment, commercial/business, legal malpractice, real property, fee disputes, personal injury and medical malpractice litigation and is known for his preparation, legal knowledge, fairness and efficiency. The Los Angeles Daily Journal has recognized Judge Marcus on six different occasions as one of California's top 50 neutrals. He has also been honored as an alternative dispute resolution Super Lawyer for 2008-2017 and as a National Law Journal 2016 ADR Champion (one of forty-eight nationally). He is a former Chair and current member of the Los Angeles County Bar Association's (LACBA) Professional Responsibility and Ethics Committee; a member of LACBA's Labor and Employment Section Executive Committee; a former advisor to the State Bar's Labor and Employment Law Section's Executive Committee and a frequent speaker and author on legal ethics, mediation strategy, mediation ethics, arbitration procedures and trial strategy for LACBA, the Association of Southern California Defense Counsel (ASCDC), the Consumer Lawyers of Los Angeles (CAALA), the CEB and numerous Los Angeles law firms. Judge Marcus is the author of Trial Preparation for Prosecutors, 1st, 2d and 3d Edit., Lexis/Nexis and is writing Courtroom Conduct: The Dos and Don'ts of Litigation. He has also taught evidence at USC Law School and mediation ethics at Pepperdine School of Law's Straus Institute. Before becoming a full-time neutral, Judge Marcus was the Supervising Judge of the California State Bar Court. Prior to his 1995 judicial appointment, he was in private practice for over ten years, where he concentrated on business litigation, including employment matters. Judge Marcus is a former seventeen-year Los Angeles County deputy district attorney (during which he headed the Organized Crime Section, the Beverly Hills Area Office and the Consumer Section). He has tried over one hundred and fifty jury trials. He received his B.A. from the University of California, Berkeley and his J.D. from the UCLA School of Law. 310-201-0010

Q&A with Hon. Michael D. Marcus (Ret.)

ADR Services, Inc.

Q: Since, in most arbitrations, the arbitral panel is not required to strictly follow the rules of evidence, how does a panel decide just how rigorous (or lax) to be with the receipt of evidence in a case?

Roman Silberfeld, Robins Kaplan LLP

A: There is widespread uncertainty about the application of the rules of evidence at arbitration. The California Arbitration Act adds to that uncertainty. Code of Civil Procedure section 1282.2, subd. (d) provides, in part, that "The ... rules of evidence and rules of judicial procedure need not be observed." Therefore, in the absence of any law, the applicable arbitration agreement, if there is one, governs the manner in which the arbitration is to be conducted. If there is neither an agreement nor a specified procedure, the parties should decide how they want the arbitration to be administered. If they cannot agree, the arbitrator should advise the parties before the arbitration begins that the hearing, including the application of the rules of evidence, can be formal or informal; it is up to the individual parties to decide whether they wish to object to evidence and, if there are objections, the arbitrator will rule on all objections as they are made.

Q: Do they recommend exchanging briefs with opposing counsel? Why?

Brian Kabateck, Kabateck Brown Kellner LLP

A: There are no compelling reasons for opposing counsel not to exchange mediation briefs. Because most attorneys don't share their mediation papers with the other side and, with the demise of the joint caucus at mediation, unless the mediation takes place after substantial discovery has commenced, the parties don't know their opponents' factual and legal theories. Thus, mediators must spend valuable time in the beginning of the process educating the parties about the facts and laws at issue. The only sound reason for not exchanging a mediation brief is if it contains either a fact (perhaps a smoking gun) or a legal tactic (discovery or motion) that should be held in abeyance. But that's easily resolved; if you don't want the opponent to know about facts, legal theories or arguments that are best held in reserve, put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum.

Q: When do they use a mediator's proposal?

Brian Kabateck, Kabateck Brown Kellner LLP

A: There are no rules when a mediator's proposal should be made, just as there are no formal rules for how any other part of a mediation should be conducted, other than it must be held under a cloak of confidentiality. Experience, however, shows that a proposal, whether it is either a mediator's educated guess as to the settlement terms that will be acceptable or, alternatively, is the mediator's evaluation of what the case is "worth," it is most effective when the parties have reached a stalemate and all other settlement techniques, such as market place bargaining and brackets, have been considered or exhausted. By that time, the proposal has a substantial chance of being accepted, because the mediator, after much discussion and negotiation, should be seen by all concerned as informed, knowledgeable, fair and credible.


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