3.1.11

Alternative Dispute Resolution
Two most commonly used forms- Arb. & Med.

Arbitration- Arbitrator listens to the evidence and witnesses, and renders award (usually NO appeal) Court cannot force you into binding arbitration, 7th Amend. right to jury trial.

- Binding (Usually by contract: stockbroker, hospital, auto insurance, lease, installment purchase plans, etc.)
- Nonbinding (RCW 7.06.020) If either side objects to finding, can go to trial.

Mediation
1) No "award"- recommendation only
2) Informal discussions ("shuttle diplomacy")
3) Never binding

98% of ADR is non-binding arbitration and mediation

Mandatory Arbitration Rules
MAR 4.2, 5.1, 5.2, 5.3, 6.2, 6.3, 7.1, 7.2, 7.3

Trial De Novo
Request for new trial after arbitration.
Risk MAR 7.3, court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party's position on the trial de novo.

Local Rules- Vary
Be careful, most have short discovery period with regards to arbitration.

KCMAR 7.1- to reduce arbitration for the sake of wasting time.

Private ADR
WAMS- Washington Arbitration and Mediation Service
JAMS- Judicial Arbitration and Mediation Service
JDR- Judicial Dispute Resolution

Anyone can mediate. Most mediators are retired judges or lawyers. Must be agreed upon by both sides. Sometimes called "Neutrals".

Mediation Statement- NEXT ASSIGNMENT
Write a persuasive statement. You may be creative in your advocacy. 5-6 pages
Discuss incident, injuries, legal theories, etc.

Mini-Trials- Too expensive to be practical


TRIAL Work
Pre-Trial- Its all about preparation
• "Although the trial date is three months away..." If you haven't started your trial prep by then, you should be FREAKING OUT!
• Preparation for Trial- should begin with initial client meeting
• You cannot prepare for every eventuality
• But Preparation, Organization, and Dedication can cover most of them
• Clients and witnesses should be notified of trial date the day you receive the date

• File Organization- Keep files organized as you go. "Drop filing" = trouble
• Motions in limine- now is the time to think about evidence we want to keep out
➢ ER 403, 404, 407, 408, 409, 411
➢ Done in advance of trial. If objection is raised to question about previous felony, etc., "the cat's out of the bag." Even instructions by judge to disregard may not undo damage

Trial Notebook- "Blueprint" for case
➢ Fiercely individual to lawyer
➢ 3 Key Elements
• 1. Opening statement
• 2. Outlines of direct/cross- Parties/Witnesses/Experts
• And exhibits we will introduce through them
• 3. Closing argument

➢ Include only documents that will be used at trial
• Document Index- Vitally important that you be able to find any document in 8 seconds
• Chronology- Present events in the way they are most impactful, not necessarily in chronological order. Bruce- Organizes in order of how he intends to present, usually in order of story to be told, people who help tell the story, and the documents that accompany them.
• Legal research- any research should be used in advance, and used to create documents (brief, motion, jury instruction). Cases used to draft documents do not need to be in trial notebook.

• Exhibits-
➢ Marked for Identification- "as Plaintiff's exhibit 1" for ease of reference (marked for evidence does not enter them into evidence)
➢ Keeping track of exhibits/evidence
• 1. Exhibit #
• 2. Exhibit description
• 3. Plaintiff/Defendant (who introduced)
• 4. Objection (nature of, hearsay, foundation, best evidence, etc.)
• 5. Trial Date (in which it was introduced)
• 6. Admitted into Evidence?
➢ Have a blank sheet set up in notebook for exhibit tracking

• Jury Selection- know what you're looking for
➢ Voir Dire
• 3 Purposes
• 1. Test for bias or prejudice which will prevent objectivity.
• 2. Establish rapport- chance for attorney to establish credibility, etc. Improper use of voir dire.
• 3. Condition jury to our case- chance to tell them a little bit about the case, your side of course. Improper use.

• CR 45 Subpoena
➢ Subpoena EVERYONE (friendly or not)
➢ If you've subpoenaed someone who doesn't show up, you can get a continuance, etc., otherwise you are in serious trouble.
➢ Service of subpoenas are less strict because the person being subpoenaed is not at risk of losing life, liberty, or property. (No due process issue)
➢ You do not need to subpoena on a party, CR 43(f) notice required.