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Pre Trial Conference And Encouraging Settlement Outline

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This is an extract of our Pre Trial Conference And Encouraging Settlement document, which we sell as part of our Civil Procedure Outlines collection written by the top tier of Harvard Law School students.

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Pre-Trial Conference & Encouraging Settlement

1. Relevant Rules a. FRCP 16: Pretrial Conference; Scheduling; Management b. FRCP 68: Offer of Judgment c. FRE 408: Compromise Offers and Negotiations

2. Limits of Judicial Control to Encourage Settlement - Kothe v. Smith a. Judge cannot coerce an unwilling party to settle. b. Kothe v. Smith (2nd Cir. 1985), CB 19. i. S.D.N.Y. judge threatened sanctions if the parties settled in a certain $ range after trial begins, instead of before. After 1st day of trial, parties settle in that range, 16(f) sanctions on defendant ii. Circuit Court: abuse of 16(f). Attorneys can change their mind, especially after trial starts. Plus, settlements are not unilateral; why only sanction defendant?
c. Trial judges CAN set schedule/time limit for settling, and sanction for settling after. Newton v. A.C. & S. (3rd Cir. 1990) d. Example: Judge Weinstein in Agent Orange case (1986). Special settlement master got $200M settlement, judge rejected, didn't want to encourage groundless mass toxic tort litigation. Eventually, $180M. Too much of a role? Judge or mediator? Making "legal" decisions?

3. Alternative Dispute Resolutions (ADR) a. Arbitration i. Arbitrator decides dispute. Binding. ii. Becoming popular on the international dispute scene. iii. Federal Arbitration Act (FAA) of 1925 - federal courts enforce arbitration clauses and awards. iv. FAA, an award cannot be vacated for error in law OR fact. Only limited grounds, such as corruption, fraud, undue means, misconduct, or exceeding authority. v. Many contracts require arbitration. vi. Unconscionability" the principal ground for challenging an arbitration clause.

1. Arbitration clause must: 1) allow all remedies available in court; 2) provide for adequate discovery; 3) require written arbitration award and judicial review; 4) not require claimant to pay arbitration costs. (Armendariz v. Foundation Health Psychcare Services, Cal. 2000) b. Mediation i. Non-party facilitates agreement. Non-binding. ii. Two approaches: Therapeutic (work together to come to a settlement agreement) vs. Evaluative (former judge, mock trial, evaluates claims + makes suggestion at resolution). c. Settlement i. FRE 408(a): Can't use offers of settlement in trial. Can negotiate freely. d. ADR Pros/Cons

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