One of the aspects of this case that I found fascinating has nothing to do with the law. In fact, it’s more People magazine than legal analysis. The Schillers were represented in this case by the nationally-renown firm of Boies Schiller Flexner. Of course, David Boies is a household name, dating back to his days defending CBS in the defamation suit brought by General William Westmoreland, his victory over Microsoft in an anti-trust trial in which Boies represented the U.S. Government, his unsuccessful representation of Democratic presidential candidate Al Gore in Bush v. Gore, and countless other high-profile cases. Boies’s long-time friend and partner, Jonathan Schiller, is the father of Zachary Schiller who, according to Wikipedia, is a film producer whose production credits include: the Escape Plan series, Midnight Sun, The Babysitter, and Countdown. Jonathan Schiller’s other son, Joshua, is married to Melissa Siebel Schiller, sister of Jennifer Siebel Newsom, California Governor Gavin Newsom’s wife.

So, maybe the Schillers got the family discount to be represented by this legendary law firm in a dispute with their nanny.

Thanks for clicking through to learn more about this  interesting case.

The Ninth Circuit disagreed and vacated the District Court’s order dismissing this claim. In doing so, the Court observed that the employer’s arguments “hinge on an ‘equal opportunity harasser’ defense that we simply do not countenance.  An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace.”

What do you think of the holding? The Ninth Circuit claimed that this was a case of first impression, but I see this kind of fact pattern repeatedly in the work that I do. It’s not usually music blasting from commercial speakers at deafening decibels. Instead, it’s music played in a breakroom or an employee singing loud enough for coworkers to hear. Should the playing or singing of songs that use racial or gender epithets, refer to sexual acts in vulgar terms, or use other offensive (to many if not all employees) words be the basis for a hostile environment claim?

If you don’t think so, this does not mean you approve of the conduct or, if you are an employer, lack any ability to stop it. Certainly, no employer is required to allow this type of conduct to go on in the workplace. Employer policies can and should prohibit using epithets and offensive language in any context. It is, however, a different question to ask whether allowing such music to be played in a warehouse should be the basis for a claim which requires that the offending conduct occur “because of sex.”  Are you convinced by the Ninth Circuit’s rationale or not? Happy to discuss this, please feel free to email me.

Do you have a case that you’d like to settle quickly? I still have some availability in late March and early April. In addition, dates frequently open up as scheduled arbitration hearings go off calendar almost every month. Check my calendar and book instantly.

Thanks for clicking through to learn more about this interesting case where a lawyer’s conduct cost him and his client nearly $500,000.

Perhaps you noticed that the newsletter content was a bit different from my past newsletters. That’s because the case was written entirely by CHAT PDF. I simply uploaded a PDF of the case into the platform and asked for a 200-word newsletter summarizing the key points of the case. The summary is not too bad. Wouldn’t you agree? I’d like to think I can’t be replaced entirely by AI. So here are a couple points that CHAT PDF missed:

The plaintiff prevailed only on his claim for failure to engage in a good faith interactive process and was awarded about $130K in damages. The jury found for the employer on disability discrimination, retaliation, failure to accommodate, and failure to prevent discrimination.

The plaintiff then sought fees of approximately $1.193 million plus a multiplier of 1.75 for a total fee request of about $2.09 million. The court corrected some arithmetic and then applied a 1.2 multiplier for an initial fee award of about $1.145 million.

But the court then applied a negative multiplier of .4 reducing the fees awarded to about $686 thousand. Here is part of what the trial court wrote after quoting two and one-half pages of counsel’s e-mail messages: “[counsel’s] incivility was not only directed to opposing counsel; it was also directed to the Court . . . ‘Plaintiff’s counsel’s tone of voice (which was not reflected in the Court Reporter’s record) was both belittling and antagonistic; at times it verged on the contemptuous. Plaintiff counsel’s ad hominem attacks were unnecessary for the zealous representation of his client.”

The appellate court affirmed the fee award. So, being a total jerk cost the lawyer and his client nearly half a million bucks. Undoubtedly, this case will be cited repeatedly in motions for sanctions and oppositions to fee requests. Don’t give opposing counsel any grist for this mill. Be professional. Take the high ground. Don’t personalize your client’s dispute so that it becomes your dispute.

Do you have a case that you’d like to settle quickly? I have some open dates at the end of this year and in January. Dates are always opening up as scheduled arbitration hearings go off calendar almost every month. Check my calendar and book instantly.

So, was Judge Bowick disqualified?

The appellate court noted that “a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.” (Jolie v. Superior Court of Los Angeles County (2021) 66 Cal.App.5th 1025, 1039-1040). This is an objective standard. If a reasonable person would entertain doubts about the judge’s impartiality, disqualification is required. The court also pointed out that the burden on a party seeking disqualification is “heavy” and affirmed the trial court’s decision denying defendant’s motion to disqualify Judge Bowick.

There are a lot of disputed facts about the interaction between the two judges. Here’s a link to the case.

As an arbitrator in California, I am required to answer about 30 questions on a disclosure form each time I accept an appointment. One of those questions is the catch all: “Are you aware of any facts that would cause a reasonable person to question your ability to be impartial?” As I stated at the beginning of this piece, I know the attorneys involved here, so I am not going to comment. How about you, though? Would you have disqualified Judge Bowick if you were on the appellate court?

Preparing Your Client For Mediation

Thanks for clicking through! Let’s put some meat on the bones of the three topics I introduced earlier:

Substance

Don’t believe everything you read in your own mediation brief. 

Most lawyers submit traditional mediation briefs, which are exclusively advocacy pieces. Sure, a mediation brief needs to put your client’s case in the best possible light, but it’s not a summary judgment motion or a trial brief. The best mediation briefs devote some time to the problems with the case. In preparing the client for mediation, you should make sure you and the client are on same page from the beginning of the mediation. Mediations can go off the rails if the attorney has not gone over the strengths and weaknesses of the case and advised the client that the discussion of damages in the mediation brief is usually designed to quantify the maximum downside risk of loss, not to suggest a settlement value much less a bottom line position.

Process

Litigation is an adversarial process; mediation is not.

Instead of looking at mediation as another in a series of adversarial events during the life of a case, try looking at mediation and the mediator as a tool or resource. Negotiation behaviors can change when counsel and parties start viewing mediation more like a joint problem-solving collaboration than a cage fight. Lay out a context for the anticipated negotiation. It is frequently described as a dance. Your client may find the first steps demeaning, be deeply disappointed with the experience, and develop a negative interpretation, which can poison the chances for success. Encourage your client to appreciate that feedback from the mediator is one of the opportunities of mediation and that it can assist you both in refining the picture of what is a satisfactory resolution. As a result, mediation can be viewed as a potential learning experience about how others view the risks presented in the case. Remind your client of the voluntary nature of mediation. The client’s control of the outcome, in collaboration with the other participants, and in contrast to a trial, is one of mediation’s strengths. If you prepare your client with this mindset, the client can be more flexible, adjust their expectations with your guidance, and see the value of hearing different points of view during the mediation.   

Emotions

It’s okay to show your emotions.

Negotiations are not purely rational exercises. It is often tough enough to manage our own emotional triggers without having to concern ourselves with another person’s emotional reactivity. Yet, the risk of emotions taking over the negotiation demands that we attend to both before mediation. You can overcome many of these problems by recognizing that the client’s feelings of comfort, recognition, and autonomy are essential to the success of the mediation. In your preparation, discuss with your client how their emotional concerns will be addressed in the mediation. What does the client really want the mediator/other side to understand about the harm that was done? Are there issues that would be best left unaddressed? Ask the client about anxieties or worries once they understand what is coming and be sensitive to the signs of potential emotional triggers. Above all, tell the client not to worry about getting emotional. A good mediator will expect and be prepared to deal with the spectrum of emotions that occur during mediation. The most successful mediations are often the most emotional because the client feels heard and the mediation can serve as a substitute day in court. 

What Makes an Effective Mediation Brief?
 

Try to think like a mediator. Do you know what the mediator needs to help you settle your case? If not, ask. If your mediator is not conducting a pre-mediation conference call with you, initiate that call yourself. Then, retain another mediator for the next case, because any good mediator should be convening these calls as a regular part of the mediation process. A preparatory call with each side separately is part of my process and included in my fee. I do not know a reputable, effective mediator who does not do this.

Of course, your mediator will need to understand the basic facts, law, and procedural posture of the case, but an experienced, effective mediator is really interested in discovering the likely barriers to settlement. I am interested in helping the parties resolve their dispute, and I don’t need detailed briefs to do that.

In most cases, an effective mediation brief should take about five pages (1500 words). That’s it. Seriously. Below is a topic outline.

1. Summarize the case, bullet point key factual disputes (attach evidence supporting your client’s position), and briefly discuss key legal issues. This does not mean including a paragraph about the McDonnell-Douglas test in every employment discrimination or retaliation case. It means educating the mediator on any point of law that is particularly important in your case.
2. If you are the plaintiff, summarize the basis for your demand and attach supporting evidence. Demanding $5,000,000 because “that’s what the client wants” (yes, a lawyer told me that) without any rationale is not helpful to the process.
3. Summarize the procedural posture of the case (if a complaint has been filed). What is the status of depositions and other discovery? What are the key deadlines? When is trial?
4. Summarize any settlement discussions. Include each party’s last settlement position and any documentation thereof.

   And most importantly:

5. Summarize perceived barriers to settlement. In other words, why do you need a mediator? If there were no such barriers, presumably, counsel could settle the matter themselves. These usually include personality conflicts, worries about setting a precedent, outside influences, etc. This section will likely be the hardest section for the advocate to prepare and the most useful for the mediator.

What about exchanging briefs? I urge the counsel to exchange briefs in every case. Almost nobody does. If you prepare the type of brief I described above, the only reason not to share the entire brief is if there is something in section 5 that will likely create an additional barrier to settlement if disclosed. In that case, delete that section from the version of the brief you provide to the other side.

I guarantee that submitting a brief like the one I described and exchanging the brief with the opposing party will be invaluable to the mediator you select and make the entire process more efficient and effective.