Wednesday, February 21, 2007
Try Mediation
Don’t be reluctant to propose mediation for fear that it is a sign of weakness. The consensus of the litigators and neutrals who attended the New York State Bar Association Committee on ADR program, “Winning Through Mediation: Know When to Hold ‘Em and Know When to Fold ‘Em,” is that it is always prudent to propose mediation and should not be viewed as a sign of weakness. Attorneys can propose mediation to their adversary even before a case is filed or in the early stages of litigation by using these strategies: state that it is your “practice in every case” to discuss mediation before the case gets too deeply into litigation; include an offer to mediate in a demand letter or position statement; ask the judge or law clerk to recommend mediation. Empirical research suggests that those making the first offer to negotiate may even strengthen their bargaining position by appearing to negotiate from a position of power and confidence.
Tuesday, February 20, 2007
U.S. Supreme Court Limits Punitive Damages Awards
The U.S. Supreme Court decided in Phillip Morris USA v. Williams that a $79.5 million punitive damages award on actual damages of about $800,000 was excessive under the Constitution. This is not an employment law case, but it is relevant to punitive damages claims asserted in employment law cases. This was a product liability case based on Williams’ cigarette smoking. The plaintiff argued at trial that the jury should punish Phillip Morris not only for the harm it caused to Williams, but also to punish Phillip Morris for harm it caused to non-parties. Phillip Morris unsuccessfully argued below that punitive damages should not be assessed on the basis of conduct directed towards non-parties. The Supreme Court, on review from the Oregon Supreme Court, agreed. The Court reasoned that the defendant has no opportunity to defend against claims that others were harmed in the single-plaintiff trial. The Court held that to permit awards based on harm to non-parties amounted to a taking and a violation of the due process clause of the 14th Amendment.
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