Back in September (2010), I wrote about my opinion that often, ADR methods can be quite beneficial in resolving disputes - beneficial from both a cost perspective as well as time. I mentioned how effective forum choice should be discussed in contractual relations from the outset, either by requiring disputes over the interpretation or operation of an agreement to first try to be resolved via mediation (non-binding), and then possibly include a binding arbitration clause in the agreement as well.
Arbitration clauses in business contracts are quite common. However, as recently discussed with a client of mine, arbitration is not always the better course, especially in situations where multiple parties are involved in the relationship.
Example:
Widget Company (WidgetCo) makes widgets. In an effort to save money, it retains the use of independent contractors who consult with WidgetCo on the design of these widgets (Designer) as well as manufacture of said widgets. WidgetCo then outsources the distribution to another consultant (Distributor). WidgetCo has separate, but similar written independent contractor agreements with both Designer and Distributor. In each agreement, any disputes between the parties must be placed into mediation, and if no settlement is reached, the parties agree to waive trial and go to binding arbitration.
Distributor sells widgets to Pain and Panic (P&P), an auto repair shop that uses the widgets in repairing cars. One of P&P's customers drives away after getting her repairs completed, loses control of her car, crashes, and sustains injuries. Customer sues P&P, who in turn, sues Distributor and WidgetCo. Customer amends her complaint and names Distributor and WidgetCo as Doe defendants. Can Distributor, WidgetCo, or P&P go after Designer as well?
1. Customer, P&P, and Distributor can sue Designer in court.
2. WidgetCo can sue P&P in court.
3. Designer, upon being brought into the lawsuit, may be able to sue P&P and Distributor.
4. However, WidgetCo will not be able to seek indemnity via the court system from either Distributor or Designer, and Distributor cannot go after WidgetCo directly (nor can Designer) due to the mediation/arbitration provisions in their respective IC agreements.
In practice, the IC parties would likely "waive" their right to arbitrate, and allow court action to reduce the cost/time to fight in a different forum. However, parties do not always agree to waive such action. What happens then?
Alternative Dispute Resolution provisions are quite valuable. However, be mindful that scenarios should be approached on a case-by-case basis, and carefully analyzed to determine if ADR is right for the particular circumstance.
Please, Share Your Thoughts!
February 18, 2011
February 7, 2011
POLITICS & THE LAW - DEMOCRATIC RULE?
Most of us (I hope) have watched with intrigue and fascination the mass and, mostly, peaceful demonstrations taking place in Egypt over the past several days. While the mass political push to remove their "President" from office is based on numerous issues, the primary rationale appears to be the call for a more democratic government. Interesting for an Arab nation, as most are authoritarian (Syria), a monarchy (Saudi Arabia, Jordan), or Religious authoritarianism (Iran); a few boast "democratic" rule (Lebanon, Iraq, and Egypt), but even in these countries, there are factions that run the government with minimal contribution from the masses.
Back to Egypt ... calls have gone out for the immediate resignation of President Mubarak. Even the US President, Obama, has called for the Egyptian leader to "do what is right" ... and yet, I find this deliberate attempt to, once again, push on American ideals to another culture to be a bit hypocritical. To think that, if we didn't like how our President and/or government was leading the nation, we could simply remove the President with mass demonstrations ... such conduct goes against the very morals our Founding Fathers envisioned more than 200 years ago. There are many in the US who dislike the current Administration's focus and agenda. These dissenters, if you will, have the ability to rise up and, after a single 4 year term, vote out the President, and elect someone else.
However, the US does not allow dissenters the opportunity to remove a leader early, except through processes codified by law ... ie, impeachment. No US President has ever been removed from office early via this process. And, only two Presidents have ever been impeached - Andrew Johnson and Bill Clinton. Neither was removed from office, however. Only one President has ever resigned from office - Richard Nixon, and Nixon did so on his own, rather than face the public humiliation of the impeachment process. Whether Nixon would have been impeached is up for debate, as is whether there would have been enough time to remove Nixon before the end of his 2nd term.
Importantly, however, Presidents are impeached only when their conduct warrants such action; such action is not authorized simply because the President's leadership agenda is not how the population believes it should be. In such cases, the only method for removing an unpopular president, is to elect someone else 4 years down the road.
It amazed me to see our President suggesting that Egypt's President, "Do the right thing." What did that mean? To some degree, President Mubarak did ... he agreed not to seek another term in the fall of 2011. This gives notice that there will be a new leader, and that anyone who seeks such position should gear up for the political process ahead. But, "do the right thing?" Did President Obama suggest that the Egyptian leader step down? And, hasn't President Mubarak been one of stronger allies in the region, with a mostly peaceful legacy and better ties with Israel? For more than 3 decades, Israel has not been required to defend against a southern enemy (other than Hamas/Palestinian uprisings).
The US is, indeed, a great nation! We, I believe, have the best governmental system in the world, allowing great freedoms (sometimes, too much, perhaps). Yet, to call for the removal of a leader in a different culture, one that has seen authoritarian rule for hundreds of years, when such leadership has borne such peaceful results in an otherwise agitated arena in the World, is uncalled for.
What are your thoughts? Would love to hear them!
Have a great Monday!
Back to Egypt ... calls have gone out for the immediate resignation of President Mubarak. Even the US President, Obama, has called for the Egyptian leader to "do what is right" ... and yet, I find this deliberate attempt to, once again, push on American ideals to another culture to be a bit hypocritical. To think that, if we didn't like how our President and/or government was leading the nation, we could simply remove the President with mass demonstrations ... such conduct goes against the very morals our Founding Fathers envisioned more than 200 years ago. There are many in the US who dislike the current Administration's focus and agenda. These dissenters, if you will, have the ability to rise up and, after a single 4 year term, vote out the President, and elect someone else.
However, the US does not allow dissenters the opportunity to remove a leader early, except through processes codified by law ... ie, impeachment. No US President has ever been removed from office early via this process. And, only two Presidents have ever been impeached - Andrew Johnson and Bill Clinton. Neither was removed from office, however. Only one President has ever resigned from office - Richard Nixon, and Nixon did so on his own, rather than face the public humiliation of the impeachment process. Whether Nixon would have been impeached is up for debate, as is whether there would have been enough time to remove Nixon before the end of his 2nd term.
Importantly, however, Presidents are impeached only when their conduct warrants such action; such action is not authorized simply because the President's leadership agenda is not how the population believes it should be. In such cases, the only method for removing an unpopular president, is to elect someone else 4 years down the road.
It amazed me to see our President suggesting that Egypt's President, "Do the right thing." What did that mean? To some degree, President Mubarak did ... he agreed not to seek another term in the fall of 2011. This gives notice that there will be a new leader, and that anyone who seeks such position should gear up for the political process ahead. But, "do the right thing?" Did President Obama suggest that the Egyptian leader step down? And, hasn't President Mubarak been one of stronger allies in the region, with a mostly peaceful legacy and better ties with Israel? For more than 3 decades, Israel has not been required to defend against a southern enemy (other than Hamas/Palestinian uprisings).
The US is, indeed, a great nation! We, I believe, have the best governmental system in the world, allowing great freedoms (sometimes, too much, perhaps). Yet, to call for the removal of a leader in a different culture, one that has seen authoritarian rule for hundreds of years, when such leadership has borne such peaceful results in an otherwise agitated arena in the World, is uncalled for.
What are your thoughts? Would love to hear them!
Have a great Monday!
February 4, 2011
LEGAL JARGON 101 - Request for Admissions
You've been served with a formal Request for Admissions ... what does that mean? Can I object to the form of the question? How do I respond? What is the affect on my case if I fail to respond or otherwise respond with an admission? What if I deny the Request?
Requests for Admissions are very powerful discovery tools. Code of Civil Procedure section 2033.010, et seq., describe what this type of discovery is, and the subsequent sections respond to the issues identified above.
What it is: "Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties."
CCP section 2033.020 provides when requests for admissions may be made - by defendants, at any time without leave of court; by plaintiff(s) as soon as 10 days after service of the summons (5 days after service of summons in unlawful detainer cases).
CCP section 2033.030 - There is a 35 request limit, though this may be exceeded with proper declarations.
CCP sections 2033.210, et seq. deal with responses. You may admit, deny in whole, or deny in part, any request for admission. In addition, you may object to the request and either provide a response or not. For instance, the form of the request may provide insufficient factual information for the responding party to either admit or deny the response. In that case, the common response is, "There is insufficient facts for Responding party to either admit or deny, and on that basis alone, denies this request." Hopefully, the parties thereafter "meet and confer" so that the request is clarified enough for the responding party to either admit or deny.
A great discovery tactic is to utilize Form Interrogatory No. 17.1 concurrently with a Request for Admissions. Form Interrogatory No. 17.1 requires that the responding party provide all facts, identify witnesses, and describe documentation that supports any denial of a request for admission. Since requests may be utilized even to examine direct controversies between the parties, an opposing party can delve into the "beef" of a party's case.
Also, if a party responds with an admission to a particular set of facts, then the Requesting party may use that admission at trial. Also, if a party fails to respond to a request for admissions, the court may deem all requests as being admitted. It is a serious consequence with serious repercussions.
I hope this provides further insight into litigation discovery tactics! Have a great weekend!
Requests for Admissions are very powerful discovery tools. Code of Civil Procedure section 2033.010, et seq., describe what this type of discovery is, and the subsequent sections respond to the issues identified above.
What it is: "Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties."
CCP section 2033.020 provides when requests for admissions may be made - by defendants, at any time without leave of court; by plaintiff(s) as soon as 10 days after service of the summons (5 days after service of summons in unlawful detainer cases).
CCP section 2033.030 - There is a 35 request limit, though this may be exceeded with proper declarations.
CCP sections 2033.210, et seq. deal with responses. You may admit, deny in whole, or deny in part, any request for admission. In addition, you may object to the request and either provide a response or not. For instance, the form of the request may provide insufficient factual information for the responding party to either admit or deny the response. In that case, the common response is, "There is insufficient facts for Responding party to either admit or deny, and on that basis alone, denies this request." Hopefully, the parties thereafter "meet and confer" so that the request is clarified enough for the responding party to either admit or deny.
A great discovery tactic is to utilize Form Interrogatory No. 17.1 concurrently with a Request for Admissions. Form Interrogatory No. 17.1 requires that the responding party provide all facts, identify witnesses, and describe documentation that supports any denial of a request for admission. Since requests may be utilized even to examine direct controversies between the parties, an opposing party can delve into the "beef" of a party's case.
Also, if a party responds with an admission to a particular set of facts, then the Requesting party may use that admission at trial. Also, if a party fails to respond to a request for admissions, the court may deem all requests as being admitted. It is a serious consequence with serious repercussions.
I hope this provides further insight into litigation discovery tactics! Have a great weekend!
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