1 Agenda for 21st Class Admin – Handouts – Name plates Discussion of mock mediation Arbitration Fees – Fee shifting problem – Accounting in A Civil Action Intro to joinder

Assignment for Next Class – Joinder FRCP 13, 14, 18, 20, 21 Yeazell , Questions to think about / Writing assignment – Pp. 816 Q5 – Briefly summarize Price – Pp. 818ff. Qs 1-2 Optional: Glannon Chapters (Joinder) 2

Mock Mediation – Numbers – Reactions? 3

4 Arbitration I Adjudication by private judge under rules agreed to by parties Must be agreed to by parties – Pre-dispute. In contract, before dispute arises – After dispute arises Arbitration is legally binding – Party that agreed to arbitration and then changes its mind can be compelled to arbitrate Court will dismiss case Arbitrator can enter equivalent of default judgment – Arbitration awards are enforceable in court – Arbitration awards are not generally appealable Arbitration may be through established organizations (non-profit or for profit) – American Arbitration Association, JAMS – Organizations have panels of arbitrators and set rules

5 Arbitration II Parties to arbitration generally have control over who arbitrators are – Either agree on arbitrators in advance Or agree to procedure for selecting arbitrator – E.g. Start with list and each side strikes those like least, etc. – Procedure may be set out in organization rules (AAA or JAMS) or may be negotiated by parties – Often arbitrators are retired judges, but can be anyone E.g. Writers Guild has writers as arbitrators Parties to arbitration generally have control over procedures – AAA and JAMS have rules that can choose – Or can set out own rules E.g. Writers Guild. Everything in writing, no oral hearing or testimony

6 Arbitration III Arbitration is controversial – Especially in consumer contracts Where business may put arbitration clause in form contract stipulating defendant friendly arbitrators and procedures (e.g. no class actions) Federal law promotes arbitration – Federal American Arbitration Act is interpreted to require states to enforce arbitration agreements, except in rare circumstances Agreement was unconscionable or otherwise defective under ordinary state law contract principles (e.g. fraud, duress), or Procedure violative of due process (e.g. biased judges) – Very hard to prove, even though probably often true, because business generally chooses arbitration procedures, including rules for selection of arbitrators – Businesses are “repeat players” » So arbitration providers have incentive to please business, otherwise business will choose other arbitration provider in future.

7 Costs & Fees Costs – Usually pretty minor– filing fees, court reporter, non-expert witness fees – According to 28 USC 1920 always paid by losing party Fees – Lawyers fees – Usually large – American rule: each party pays own attorneys’ fees – British rule. Loser pays If plaintiff wins, then defendant pays plaintiff’s lawyer’s fees If defendant wins, then plaintiff pays defendant’s lawyers fees Fee shifting always subject to judicial inquiry into reasonableness Fee shifting problems A Civil Action Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

8 Intro to Joinder – Assumption – one plaintiff, one defendant, one claim, unless rules specifically allow more – In general, rules allow joinder if claims and/or parties are closely related – But what “closely related” means varies depending on type of joinder Complicated Doesn’t matter tremendously – If claim can’t be joined, it can be brought separately Joinder is mainly economizing divise Also prevents inconsistent judgments – Separate claims can be “consolidated” Treated almost as if in the same case – Even if cases are joined, they can be “severed” If the judge thinks that doing so would make the case easier to manage