<?xml version="1.0" encoding="utf-8"?>
<rss version="2.0" 
    xmlns:dc="http://purl.org/dc/elements/1.1/"
    xmlns:sy="http://purl.org/rss/1.0/modules/syndication/"
    xmlns:admin="http://webns.net/mvcb/"
    xmlns:rdf="http://www.w3.org/1999/02/22-rdf-syntax-ns#"
    xmlns:content="http://purl.org/rss/1.0/modules/content/"
	xmlns:itunes="http://www.itunes.com/dtds/podcast-1.0.dtd">
	<channel>
<title>My RSS Feed</title><link>http://www.caseover.com/index.html</link><description>Hot News&#x21;</description><dc:language>en</dc:language><language>en</language><dc:creator>Scott J. Silverman</dc:creator><dc:rights>Copyright&#x2c; 2016 CaseOver&#x2c; LLC</dc:rights><dc:date>2016-06-10T13:36:31-04:00</dc:date><admin:generatorAgent rdf:resource="http://www.realmacsoftware.com/" />
<sy:updatePeriod>hourly</sy:updatePeriod>
<sy:updateFrequency>1</sy:updateFrequency>
<sy:updateBase>2000-01-01T12:00+00:00</sy:updateBase>
<lastBuildDate>Sat, 11 Jun 2016 12:31:24 -0400</lastBuildDate><itunes:author>Scott J. Silverman</itunes:author><itunes:owner><itunes:name>Scott J. Silverman</itunes:name><itunes:email>ssilverman@jamsadr.com</itunes:email></itunes:owner><itunes:category text="Business"/><itunes:keywords>Mediation, Arbitration, tips, JAMS, Miami</itunes:keywords><itunes:subtitle>So You Think Your Case Will be Tried - Try Again.</itunes:subtitle><itunes:summary>This podcast explores the likelihood of a case being brought before a jury in Miami&#x2c; Florida.  It also underscores the importance of mediation and tips on how an attorney can maximize their presentation at the mediation. </itunes:summary><itunes:image href="http://www.caseover.com/blog/files/podcast_channel.png" /><item><title>7 Tips for a Winning Mediation Opening Statement</title><dc:creator>Scott J. Silverman</dc:creator><dc:subject>Mediation &#x26; Arbitration Blog</dc:subject><dc:date>2016-06-10T13:36:31-04:00</dc:date><link>http://www.caseover.com/blog/files/10ebe5ef97cc06bacb883b3faaba65ae-8.html#unique-entry-id-8</link><guid isPermaLink="true">http://www.caseover.com/blog/files/10ebe5ef97cc06bacb883b3faaba65ae-8.html#unique-entry-id-8</guid><content:encoded><![CDATA[I saw an attorney win his case in a mediation against the opposing side in a highly contested dispute primarily on the strength, style, and presentation of his opening statement.  

...Do Not Waive your Mediation Opening Statement  A trend is developing on the west coast of the U.S. to waive mediation opening statements and go directly into caucus.  

...An opening statement gives you the rare opportunity to speak directly to the other party and present your position without the filter of the other attorney or the mediator.    Further, it gives you the chance to present your case in the best light possible, demonstrate that you are a worthy adversary who would likely have great sway before a judge and/or jury, and sow doubts in the mind of the opposing party.


...Be Conciliatory If I kicked you in the shin and poked you in the eye, and then a minute later I asked you for your help, would you give it to me?  

...You can disagree with an opposing side, but you should be careful to do so without denigrating the party or their position.


...Direct your Comments to the Opposing Party Not the Lawyer How frequently has an opposing attorney convinced you that your case is a loser and that your client should just throw in the proverbial towel?  

...When making an opening statement during a mediation, your primary audience should be the party and not the party's lawyer.    The odds of you convincing the other lawyer (who has likely been telling the client for over the past three years that their case is highly prosecutable/defensible) that your side will prevail and they will lose is probably slim to none.


...It is common for clients to hear things from the opposing attorney on opening statement that they've never heard or even considered before.  


During the opening statement, you should focus on trying to create a rapport with the opposing client thereby effectively "by-passing" their lawyer's filter.  

...Let's start with the premise that 99% of the time a judge will give a a standard instruction to a jury rather than a special instruction, so long as the standard covers the cause of action/defense raised.  

...If you are a strong presenter with a modulating voice and who likes to walk about the room while changing PowerPoint slides containing lots of video and documents, have at it.  ]]></content:encoded></item><item><title>Never Give Up: A Case for Persistence</title><dc:creator>Scott J. Silverman</dc:creator><dc:subject>Mediation &#x26; Arbitration Blog</dc:subject><dc:date>2013-01-06T19:05:33-05:00</dc:date><link>http://www.caseover.com/blog/files/2d8aeccc7c0bf321ce61076c2eb4a059-7.html#unique-entry-id-7</link><guid isPermaLink="true">http://www.caseover.com/blog/files/2d8aeccc7c0bf321ce61076c2eb4a059-7.html#unique-entry-id-7</guid><content:encoded><![CDATA[A lot  of money was at stake and given the severity of the loss, a jury could reasonably render a verdict in excess of the policy limits.  


The plaintiff&rsquo;s attorney demanded the defendant&rsquo;s insurance company pay her client the face value of the policy or face a bad faith claim in the event of an excess verdict. ...  In the middle of this tug of war was the insured who simply wanted the case settled to avoid a trial and any risk to his personal assets.  

...Shortly after the mediation, the plaintiff&rsquo;s attorney requested that I contact the defendant&rsquo;s attorney and find out whether he was encouraging the carrier to settle.  

...Does it terminate as the parties storm out of the mediator&rsquo;s office without a formal agreement?    Does it continue until an impasse is declared by the mediator and a form is sent to the court?  

...It&rsquo;s Over When it&rsquo;s Over I&rsquo;ve heard many a lawyer say that they like mediators who never give up.  

...A mediation begins when the court orders it, when the parties agree to mediate, or as otherwise directed by law.  

...If, however, the agreement is one which must be brought before the court for approval, the mediation ends when the court approves the agreement.  

...A mediation also terminates when the mediator reports an impasse to the court or the parties.    It is important to note that while the mediator must send a notice of impasse to the court, an impasse occurs when the mediator informs the parties of one during the formal mediation.


...Finally, so long as the parties comply with the court order by appearing at the mediation, they may terminate the mediation by their own agreement.    However, if the mediation involves multi-parties and one party gives written notice to all the others that it no longer intends to participate in the mediation, the noticing party may withdraw. ]]></content:encoded></item><item><title>Managing Expectations: A Formula for Mediations</title><dc:creator>Scott J. Silverman</dc:creator><dc:subject>Mediation &#x26; Arbitration Blog</dc:subject><dc:date>2012-12-30T12:43:11-05:00</dc:date><link>http://www.caseover.com/blog/files/8ae11ba5a5d0c00ebaf0fb1ad70d5b31-6.html#unique-entry-id-6</link><guid isPermaLink="true">http://www.caseover.com/blog/files/8ae11ba5a5d0c00ebaf0fb1ad70d5b31-6.html#unique-entry-id-6</guid><content:encoded><![CDATA[Often opposing the plaintiff&rsquo;s pie-in-the-sky outlook is an equally unrealistic defense attorney whose position is not only 180 degrees opposed, but also one who is convinced of the abject frivolity the plaintiff&rsquo;s case.  

...With such extreme, unrealistic, and inflexible beliefs by counsel, the challenge for the mediator is to bring the attorneys and their clients back down to earth by giving them a dose or two of reality.  ...  One of the goals for an adept and nimble mediator is to quickly inject some realism into the discussion so that the parties will arrive at an objective assessment of their case.


...With just three simple pieces of data quickly derived from each party, a judge can quickly assess, based upon the parties&rsquo; actual expectations, whether their pending case should resolve.


...Simply put, a plaintiff will not suggest to a defendant that their expected recovery is less than their demand and that there is a less than even chance of their prevailing before a jury.  

...The mediator should not ask each party during the caucus, &ldquo;What do you think is the plaintiff&rsquo;s probability of winning?&rdquo;    Instead, the mediator should inquire, &ldquo;If you were to try this case 50 times, how many times do you think the plaintiff would win?&rdquo;  ...  For example, if the plaintiff says he expects to win the case 45 times for every 50 times it&rsquo;s tried, the plaintiff&rsquo;s perceived probability of winning at trial is 90%.    Likewise, if the defendant believes the plaintiff should win just 5 times if the case is tried 50 times, the defendant&rsquo;s perceived probability that the plaintiff would win is 10%.  


...To obtain that information, you should inquire of each party, &ldquo;If this case does not resolve in mediation, how much will it cost you to get this case to a jury and obtain a verdict?&rdquo;  

...Since the plaintiff&rsquo;s perceived recovery subject to his costs and probability of winning exceeds the defendant&rsquo;s amount, this is a case that needs to be tried.    In deed, if this were an actual case before a judge, the judge would look at the results and know that based upon these expectations the case is one that should go to a jury.


...If the plaintiff came into the mediation demanding $100,000 and the defendant wanted to pay $0, the parties will quickly come to the realization that the initial values they set for their respective cases were distorted and unreliable.
]]></content:encoded></item><item><title>First Words: The Pre-mediation Memo</title><dc:creator>Scott J. Silverman</dc:creator><dc:subject>Mediation &#x26; Arbitration Blog</dc:subject><dc:date>2012-11-25T23:43:53-05:00</dc:date><link>http://www.caseover.com/blog/files/a1d2bcc8f65e5f031b0b00038b2c0b06-5.html#unique-entry-id-5</link><guid isPermaLink="true">http://www.caseover.com/blog/files/a1d2bcc8f65e5f031b0b00038b2c0b06-5.html#unique-entry-id-5</guid><content:encoded><![CDATA[It&rsquo;s difficult to be a participant in a sport when you don&rsquo;t know the goals, objectives, or the players.  

...A good memoranda sets out the history of the case, the parties, their interests, the points of agreement and disagreement, and a suggested plan or desired outcome.    When all of these items are present, it demonstrates to the mediator that counsel has a thorough understanding of the case and is actively working towards a resolution.


...Keeping the mediator uninformed often times results in the mediation taking longer in order to bring the mediator up to speed and sometimes makes the mediator less effective.


When I receive a pre-mediation memoranda, I read it, diagram the parties and their causes of action, and take thorough notes on each issue.  ...  At times, my yellow legal pad looks like a bad copy of a Jackson Pollack painting, however I have found this process to be effective.


...Others have clients who find it hard enough just to find the money to pay for the mediation, much less a memo.


...While a mediator who learns about the case for the first time during the opening session will need more time to become familiar with all of the parties, the facts of the case, and its history.  

...It presents counsel with a chance to hone down the case and focus on the issues that are important.    It also presents counsel with the opportunity to demonstrate the correctness of their position, the nuances of the case, and the reasons they are entitled to the relief sought.


...He pointed out that the press was going to write its story regardless of whether the reporter actually spoke to him, and he wanted to get his own "spin" on it. 

...I&rsquo;ve read and written so many memos and orders in my legal career that I am adept at separating fact from fiction, so manipulation is the least of my worries.  


...A memoranda that fully informs the mediator about the dispute will make for a better mediation and help to increase the chances for a settlement.  ]]></content:encoded></item><item><title>Mediation Opening Statements - A Dress Rehearsal and a Strategic Opportunity</title><dc:creator>Scott J. Silverman</dc:creator><dc:subject>Mediation &#x26; Arbitration Blog</dc:subject><dc:date>2012-10-24T12:15:49-04:00</dc:date><link>http://www.caseover.com/blog/files/759eab9e72e166c19670a651d379b7b6-4.html#unique-entry-id-4</link><guid isPermaLink="true">http://www.caseover.com/blog/files/759eab9e72e166c19670a651d379b7b6-4.html#unique-entry-id-4</guid><content:encoded><![CDATA[It's far better for litigants to know before the trial whether their case can withstand an iceberg or whether it will be sunk by an adverse verdict.


...There might be bad blood between the parties (former spouses or business partners) or behavior that might get out hand should the parties even sit in the same room - imagine what it would be like in a courtroom for two weeks.    The attorneys might be impatient and just want to get immediately into the negotiations or the parties might not have the financial wherewithal to pay for the "fluff" of an opening statement.    They may even argue that the parties have engaged in prolonged and substantive discovery and that they and their clients are intimately familiar with the other one's positions and theories and there is nothing more to know or learn.  

...In a very real sense, mediation opening statements are not just a means to inform the opposing side of the strengths of your case and the weaknesses of theirs, they are nothing short of a dress rehearsal for the main event.


...Under those circumstances, I advise the parties that if it is a court ordered mediation, they should attend the opening, but are not required to speak.  

...I just want them to know that they are a part of the process, and not just the person who approves or disapproves demands and offers.


On those occasions when the parties want to make an opening, it is given after their attorney has spoken.  

...I typically walk the defendants first to their rooms, taking a moment to explain that I will first spend time with the plaintiff (everything in the justice system starts with the plaintiff), and then work my way back to them and that I appreciate their patience.


Since time tends to move much slower for the party waiting, I suggest they think of weaknesses in the opposing side&rsquo;s case and write them on the white board.  

...The opening statements give attorneys and their clients a chance to show off the best part of their case and demonstrate the weaknesses of the opposing parties case.  

...It also affords the attorneys the opportunity to show the other side their adeptness at presenting a cogent statement of the facts/argument to a judge or jury should the case actually go to trial.    The benefits of opening statement are significant, and an attorney would do a client well by preparing one as if they were going to trial.]]></content:encoded></item><item><title>Hardball</title><dc:creator>Scott J. Silverman</dc:creator><dc:subject>Mediation &#x26; Arbitration Blog</dc:subject><dc:date>2012-10-04T21:15:17-04:00</dc:date><link>http://www.caseover.com/blog/files/a43437c39a3f865ee4f7a655eaa714f4-3.html#unique-entry-id-3</link><guid isPermaLink="true">http://www.caseover.com/blog/files/a43437c39a3f865ee4f7a655eaa714f4-3.html#unique-entry-id-3</guid><content:encoded><![CDATA[By the time an attorney walks into a mediation room, he or she has a pretty good idea of how the opposing counsel will behave during the process.    Generally, attorneys who act professionally and get along during the discovery phase of a case will act in the same manner during the mediation.    However, the attorney who forces their opponent to fight and beg for every scrap of discovery (even though the request is proper) will likely behave consistently during the mediation.


As a mediator, I have found that it is more important for someone to bring the metaphorical &ldquo;ball&rdquo; to the mediation, than it is to worry about the party who wants to play hardball.    If a defendant doesn&rsquo;t bring any money to the table or a plaintiff just wants their day in court regardless of the gold and riches placed at their feet, the case will not settle.  

...However, there are parties who are intentionally unreasonable at the mediation, but who are fully aware of their conduct and use it as a strategy.  ...  Those who have an exterior of granite, but whose insides are like talcum powder, usually do not acknowledge any weaknesses in their case before the mediator, but will do so when alone with their client in the privacy of the caucus room.     These types of people use this approach as a means to an end, trying to get the best deal for their client.  

...Those who have the ability to settle the dispute, yet opt to erect a castle wall and use their favorite word - &ldquo;no,&rdquo; can be a mediator&rsquo;s most difficult challenge.     When both parties have the personal stamina and financial wherewithal to litigate until the cows come home, the mediator is challenged with finding a chink in the party&rsquo;s armor that will prompt a desire to settle the case.


When the typical monetary uncertainties of jury awards, costs of litigation, and attorney&rsquo;s fees do not adequately motivate a settlement, the mediator might want to consider &ldquo;time.&rdquo;  

...Questioning the reasons for their position may very well bring to light some undetected or ignored risk that will cause the disputant to re-evaluate the case.  

...Ultimately, it&rsquo;s the mediator&rsquo;s job to let the hardball player know that it&rsquo;s not necessary to hurl fastballs throughout the mediation.  ]]></content:encoded></item><item><title>So You Think Your Case Will be Tried&#x2026;Try Again.</title><dc:creator>Scott J. Silverman</dc:creator><dc:subject>Mediation &#x26; Arbitration Blog</dc:subject><dc:date>2012-09-24T19:08:47-04:00</dc:date><link>http://www.caseover.com/blog/files/Mediation-Arbitration-Blog.html#unique-entry-id-2</link><guid isPermaLink="true">http://www.caseover.com/blog/files/Mediation-Arbitration-Blog.html#unique-entry-id-2</guid><content:encoded><![CDATA[It seems that few people ever really try to resolve a dispute before running to a lawyer, plopping down several hundred dollars with the clerk of the court, and hiring a process server to deliver the bad news to some unhappy recipient.  ...  If they are delusional or overly optimistic, they&rsquo;ll expect an hour long television series starting with a wrong and ending with a verdict and a check.  

...An overburdened court, as you can imagine, has an impact on when cases will be heard for trial.


Here is the hard truth - the odds of any singular case in the Civil Division of the Eleventh Judicial Circuit going before a jury is less than 1/4 of 1%.    Yes, that&rsquo;s right, your case has a less than 1 in 400 chance of being presented to a jury.    In all of 2011, there were only 254 juries sworn in that division (the chart to the left reflects the court&rsquo;s fiscal years). 

...To be blunt, there is a more than 99% chance that your case will never go before a jury.  ...  You&rsquo;ll likely bite your tongue, hold your nose, squint your eyes, and maybe shed a tear, but you&rsquo;ll come to realize after your attorney spends an hour with you reading you the riot act, that it makes more sense to get a settlement you can barely live with rather than spend the next three years in appeals.  

...The uber deadline for litigators is a trial setting, and before anything can go to trial in Miami, it must be mediated.    That&rsquo;s right, the attorneys for only a few hours will have to drop their bravado and talk to each other (sometimes in person and others through the mediator) in an attempt to resolve their case.  ...  They fear the initiation of such a call will be viewed as a sign of weakness and insecurity in the strength of their client&rsquo;s case.


...Since mediation is so important in the resolution of cases, it is abundantly clear that counsel must mediate as if he or she is going to trial.  ...  In all likelihood, it will be your only opening statement since your case is not going before a jury anyway.  ]]></content:encoded><enclosure url="http://www.caseover.com/blog/files/podcast_2.mp3" length="8776224" type="audio/mpeg"/><itunes:author>Scott J. Silverman</itunes:author><itunes:category text="Business"/><itunes:keywords>Mediation, Arbitration, Tips, JAMS, Miami</itunes:keywords><itunes:subtitle>So You Think Your Case Will be Tried - Try Again.</itunes:subtitle><itunes:summary>This podcast explore the likelihood of a case actually being presented before a jury at trial and the importance of mediation in resolving disputes.</itunes:summary></item></channel>
</rss>