Before long, Charlie was headed back to the courthouse without having had lunch. He decided to take a chance that he had time to eat at the cafeteria in the basement and pick up a chile verde burrito. He had dined at nearly every Mexican restaurant in Tulare County and nothing could beat the food in the courthouse basement café. While waiting for his entrée to arrive, a hint of a solution came to mind. Perhaps the civil case could go first with Judge Crouch giving special instructions on the issue of burden of proof. He rolled some thoughts around while savoring the noon meal.
As a consequence of possessing a bright legal mind, reasonable compassion, and reluctance to pull the trigger (a euphemism referring to judicial caution and restraint), Judge Crouch ran one of the best courtrooms in the Valley. And she was prompt. The status conference resumed at 1:30 p.m. without two attorneys of record who had not yet returned from their lunch breaks. A transcript of the record of the continued hearing would be available to them, if necessary, for a fee.
“Court is in session. Please be seated,” droned the bailiff.
“Mr. Malone, have you thought about the points we were discussing before the lunch break,” queried Judge Crouch.
“I have, Your Honor. Would you like me to address them?”
“Very well,” said the judge, offering her encouragement to Malone.
“Thank you,” he answered, stood, and stretched to his full six-foot height. “The problem, as I see it, is that my client, who has protested her innocence since day one of this case, may have enough strength to handle one jury trial, but two, I simply don’t know, and I am worried sick about the impact on her. If one trial would take care of all her problems and issues, we’d be first in line to stipulate. On the other hand, the burden of proof is different for each one. In the civil will-contest case, is my client subject to being found a murderess on a preponderance of the evidence standard rather than beyond a reasonable doubt? At least in the criminal trial, the evidence must demonstrate guilt beyond a reasonable doubt or she will be acquitted. If the jury in the civil case finds her disqualified from inheriting from the estate, that is, because the jury finds that she murdered Mr. Martorano, it would be unfair since she would be convicted on less evidence than is required in a criminal trial, which has a reasonable-doubt standard. But also, could the district attorney use the civil verdict as an estoppel so that the criminal jury is instructed that she was already convicted, for all practical purposes?”
“Very perceptive, Mr. Malone. You’re at the party now. What would your client think of going to trial once, starting with the will-contest case, and getting a jury instruction requiring the jurors to apply the reasonable doubt standard on a unanimous verdict only, before they could reject her claim on the homicide defense?” and Judge Crouch fixed her gaze squarely on the once-athletic trial attorney.
A radical notion, most certainly and just maybe workable besides, thought Malone. He fancied himself an outside-the-box thinker and rather liked the idea. Certainly, it would eliminate the stress of two separate trials. Interrupting his own thought process, Charlie spoke out loud.
“Very well, Judge, but what if she were to go through two trials that produced inconsistent results?” he shot back, somewhat rhetorically but desperately searching for the elusive answer to this puzzle.
This was one of the few moments in the courtroom when ideas are expressed without fear of the effect on a client’s position or ultimate outcome. Malone rightfully believed that Judge Crouch was searching for a novel answer to a very perplexing problem. That’s really what he liked the most about this judge. She did not invest herself in a preordained sense of the proper outcome of the proceeding, assuming she possessed one that must be exalted above all others.
“Exactly, Mr. Malone. However, assessing the two cases in terms of complexity, I must say the will contest takes the lead. For one thing, there are multiple parties in the will contest matter whose respective shares must be measured and so forth. If we were to try the criminal case first, we could easily find ourselves in a lengthy appellate process that could possibly put a final decision in the criminal case beyond the predictable life expectancies of some counsel in this civil case. But now I’d like to hear from others on the issue of order of trials.
“Mr. Corrigan, please help the court over this hurdle,” said the judge, inviting the senior litigator to present his views.
“This hurdle is beginning to look like Mount Whitney that I understand is physically located in this county,” and Corrigan began his patented crooning of persuasion for Judge Crouch’s consideration.
“My first thought was that the criminal case would be tried first, naturally, why not? How else could the order be calendared? But quite frankly, I’ve had my eyes opened by the discussion in court today and am no longer certain that position was the right one. I understand the court’s concern about lengthy criminal case appeals. It’s important to my clients to get the estate closed and distributed. Important decisions must be made, and it’s not always convenient or even possible to get a consensus on the issues when the distributees are bogged down in court. It’s much better to get the estate closed, assets distributed, and the recipients on their respective ways with their proper shares. Frankly, that would have happened already, but for the claims of Ms. Barnes, Ms. Figueroa, and perhaps even the Conservancy Fund.”
Attorney Lopez gulped hard, listening all the while for a clue that might suggest the judge’s assessment of his client’s claim. Nothing further materialized. So far, all three claims had been lumped together in her mind, it seemed.
“Previously, I thought the criminal case would proceed along briskly and perhaps after a year, or two at most, we would know what to do with her claim after the criminal case was over,” Corrigan continued. “But with the prospect of appeals running on endlessly if Ms. Barnes were found guilty, I’m willing to review my assessment. I suppose there is a possibility of inconsistent verdicts in the two cases. For example, if Ms. Barnes were found not guilty of Mr. Martorano’s murder in the civil case, could she still be prosecuted and convicted in the criminal case? In my view she must win both cases from her standpoint before she recovers a penny from the estate. And if she is convicted, I do not want to see the estate tied up while we must watch the many years of criminal appeals pass us by. I am grateful to the court for making this observation. It has revised my thinking tremendously.”
“Mr. Fineman, would you like to address the court?” said Judge Crouch inviting further comment.
“Thank you, Judge. We’re not asking for anything more than what the law allows for a pretermitted heir who is mistakenly overlooked in the will of the decedent. My client is Mr. Martorano’s daughter whom, through no fault of his, he never knew. I have substantial documentation and a DNA analysis that conclusively establishes paternity. Frankly, it is my belief that Mr. Martorano, because of the kind of man he was, would have taken my client into his home had he not committed to support the sensibilities of the Figueroa family. Finally, I don’t understand the attitude of the estate in this case. The executors will spend almost as much on fighting the claim of Ms. Barnes as they might by settling it. By their stubbornness, they are simply compounding their losses. But that one is not my problem. In conclusion, my client supports any reasonable procedural solution that expedites the distribution of her share. If that means trying the will-contest case first, all the better as far as I’m concerned,” and Fineman reclaimed his seat.
“That’s enough of the pretty speeches. The executors are capably performing their legal duties as personal representatives of the decedent’s estate.” Back on his feet, Corrigan began his characteristic swaying, signaling he was ready to close in on his target. “They don’t have discretion to simply hand out shares to the claimants on a whim. Anyway, I did not understand this appearance this afternoon to ripen into a settlement conference. I’m not prepared for that part of this case yet.” Uncharacteristically, Corrigan then resumed his chair without further comment or swayin
g.
The judge looked into the faces of each lawyer as she completed her informal survey. “I’m getting the impression that there is substantial agreement that the civil case should proceed to trial before the criminal case, is that right?’ Affirmative nods were unanimously communicated back to the bench.
“Thank you, everyone, for your attention and cooperation with the court’s busy schedule earlier this morning. May I ask you, Mr. Corrigan, to prepare an order for the court’s signature? Please include a schedule of events to include the deposition of the court’s expert, appointment of retired Judge Augustus Farrington as mediator and commencement of the civil case no later than August 1, 2008. Include the reasonable doubt requirement for burden of proof on the homicide issue and note that all jurors must unanimously agree on the guilt or innocence special finding on the homicide defense allegation. Circulate it for approval of all counsel before submittal, please. Thank you very much. Court is adjourned.”
17
Mediation Conference
February 2008
Judge Crouch had a moment to herself in chambers. Reviewing the calendar of pending trials, she realized the Martorano case was coming to trial in 120 days or so. She had long since suspended her ruling on the motion for summary judgment, pending the input of Dr. Borodin. Her curiosity was piqued since she had not seen the legal cadre in court for some time and wondered if the case had somehow settled without her involvement, a merciful if not totally fanciful notion. She reached for her phone and buzzed through to the clerk’s desk. Rosemary picked up her receiver and the two discussed the status of this case.
“No, Judge,” came the reply, “and the parties are required to inform us as soon as settlement takes place if we’re otherwise unaware. I have nothing in the file indicating resolution of the case,” she confirmed.
“When you have a minute would you prepare an order for my signature appointing Judge Farrington as mediator, and make it clear I’d like everyone to cooperate in promptly scheduling the initial conference with him as soon as possible,” and the judge replaced the telephone returning to her review of coming events. If one of the trial attorneys had a problem with the order, objections could be lodged and considered.
The next time Judge Crouch had a moment in her office it was at the end of the court business day. The draft of her order appointing Farrington was on her desk. The clerk did a fine job, possibly better than she herself in using stilted language of litigation to make the obvious point of urgency. The judge knew that mediation worked best when the parties and their attorneys embraced the idea and affirmatively consented to the procedure. On the other hand, in this case a stiff shove from the judge might be just the ticket.
Two or three weeks passed without any word from the attorneys, thus Judge Crouch assumed mediation would be carried out. As the system is intended to work, mediation occurs without the trial judge becoming intimately aware of the process, its details, or the reasons for its success or failure, whatever the outcome. This feature does not eliminate the judge’s prerogative to speculate about the reasons for a failed mediation, however, should that be the ultimate outcome of all the hard work and effort that goes into the process. On the other hand, if mediation is a success, the case is essentially resolved, and the prospect of a long trial is avoided.
Occasionally, someone may get cold feet or a bad case of seller’s remorse after the mediation process is finished and claim the case really did not settle after all. If this happens, conferences in a neutral judge’s chambers are usually successful in refining details, and the case is ultimately resolved. Judge Crouch would likely ask for assistance from a neighboring department in order to maintain her objectivity if indeed the case did go on to trial in her department. When mediation does not resolve the case and it goes on to trial, a judge who has not participated directly in settlement negotiations avoids bias through such contact with the parties and counsel. Thus the trial judge stays out of the give and take wrestling match that may lead to settlement and remains objective enough to serve at trial when mediation is unfruitful.
Whatever the ultimate outcome of the mediation cycle, it is not wasted in any sense even if the case does not settle because the agenda for trial is narrowed and the case is streamlined to some degree by focusing only on the remaining unresolved issues. There are definite benefits to a failed mediation since the frenetic activity of engaging the enemy in settlement discussion tends to exhaust the participants sufficiently so that trial is more focused on issues and less on histrionics.
Judge Farrington welcomed the full entourage of parties and attorneys at a conference facility large enough to accommodate the number of people involved, many of whom lived away from Visalia. He arranged for the mediation to take place in a large meeting room at a local hotel. By doing so, out-of-town people, who included many of those participating, could secure rooms and settle in for whatever time was needed to make an honest effort to resolve the case. Most people approached the mediation sessions with hopeful attitudes once they realized the potential for reaching settlement without the unavoidable angst that comes with the combat of trial. Even Marti Barnes was in attendance under the watchful eye of a court bailiff pursuant to a special order issued by Judge Crouch.
The conference started at 1:30 p.m. on a Tuesday and continued for several days, with the participants having their evenings free typically. The first session took place in a large meeting room of the hotel attended by all parties and their respective attorneys. For some of the participants, this was the first time they actually encountered or became acquainted with the other players and counsel. Seeing the opponents in person brings a reality to the proceeding that is usually missed when such contact is lacking.
Farrington introduced himself explaining his role and the methods he used in managing mediation proceedings. He emphasized that participation in the process was informal yet pursuant to Judge Crouch’s special order. He explained that he was an officer of the court and while he could not order anyone to agree to anything, his opinions about settlement should be taken seriously since he was Judge Crouch’s right hand. He declared his bias in favor of a good settlement over a bad lawsuit and tried to make the participants feel at ease while also challenging them to recognize they all faced a grand opportunity to reach settlement, even if the process became time consuming. In short, any settlement that afforded the parties a modicum of satisfaction and resulted in cessation of hostilities should be pursued with energy and patience.
Finally, he emphasized that no record would, or ever could be, kept of these proceedings as they were absolutely confidential. Thus, everyone should know that whatever was said here could not be repeated outside the mediation chamber. For example, Farrington himself would never be ordered into court to tell the judge or anyone else what had transpired, and the same was true for each and every participant. If a settlement could be brokered, using one of his favorite terms from the field of diplomacy, it would be reduced to writing and signed or entered into the court record before everyone departed.
At the beginning of the session, he complimented the attorneys, saying he knew many of them from contacts over the years and was confident they would ably assist his efforts to find a solution acceptable to all concerned. He reminded them that the cost of litigating a case of this magnitude should not be underestimated, and even if the resources of the estate bankrolled the expense, the intangible and emotional sacrifice of going to trial should never be under estimated. He explained that after this opening session, he would speak to the parties and their attorneys individually. There would be ample time to consider one’s position on the issues, and no one should gain the impression that he would be overbearing. However, Farrington promised to express himself plainly if he ever felt that someone was missing a point that was being made for his benefit. If this happened, his efforts should not be misunderstood as bullying but rather as well-intended and meaningful attempts to reach settlement.
“I reviewed all the material
s available to me before this afternoon, including the court’s file that contains all the papers submitted in the case to date as well as the mediation statements submitted to me by counsel,” he continued, assessing the impact his words might be making on the participants. A savvy lot of poker players in the room, he concluded.
“This case, it seems, is a consolidation of several claims that could all have been tried as individual pieces of litigation. There is even a related criminal case involving the actions of the caregiver, Ms. Barnes, I believe it is, yes. I asked an assistant district attorney to be available, if necessary, but no final arrangements are in place for such a visit. It just depends on the crime rate at the time of my call.” He waited a moment for some reaction to his modest effort at levity and concealed his disappointment at the uniform deadpan reaction of the group.
“I would like to focus now on the claim of Ms. Barnes regarding the allegation that Mr. Martorano made an oral promise for her benefit before he died. Her claim is based on an alleged oral promise of Mr. Martorano. It’s very clear that such an arrangement must be writing under the law. When there is no written agreement, the proof becomes much more complicated, although Ms. Barnes could prevail at trial if the jury were convinced of the numerous facts that will be disputed by the defense. Many emotions may be driving much of what the parties are experiencing, yet the final result at trial will be made without consideration of these factors. It’s my impression that we’re all experienced to know that not everyone shares our views of what the facts are, much less what the significance of each fact means in the context of this litigation.
(2012) The Court's Expert Page 25
