WHERE YOU GONNA GO?  (Part II)

By: Hugh J. McGavick; June 1996

            This is the second[1] installment of an article about choosing between federal and state court as the forum of your choice in bringing a civil rights or discrimination cause of action.  Part I was in Just News, Volume 1, Issue 1, March, 1996.  If you had the misfortune of missing or misplacing that insightful article, it focused on eight enumerated considerations in determining whether to file a civil rights or discrimination case in federal or state court.[2]  This article is written in light of the concerns of Southwest Washington and Olympic Peninsula attorneys, since Seattle attorneys already have all the answers.

            At I seminar I attended last year, Judge Robert Bryan of the Western District of Washington at Tacoma declared that any attorney who proceeded to his courtroom who had not read the Local Rules was guilty of malpractice.  He was not kidding.  You need to have extreme caution about compliance with these rules. At that same seminar, Judge Barbara Rothstein, the Chief Judge for the Western District of Washington at Seattle, made a remark that federal judges have a tendency to be petty tyrants.  Judge Bryan corrected her, and advised that that was not true: Federal judges are "grand tyrants."  Do you think he was kidding?

            The following are some additional, non-exhaustive ideas for you to think about where is the right place for your client to file suit.

            9.  If you have either original federal or diversity questions[3], you will probably want to try all viable causes of action in one forum rather than litigating part of the case in state court and part in federal court.  State law claims other than those based on diversity were formerly know as pendant claims, but are now referred to as "supplemental" claims.  Supplemental claims enjoy second class status.  Judge Robert Bryan has historically directed the party raising supplemental claims to show cause why those claims should not be dismissed without prejudice to your right to refile in state court.  He determines such claims on an ad hoc basis, and frequently has found that cause has not been adequately shown.  He may have softened in this practice in the recent past, but that is uncertain.  Also uncertain are the practices of Judge Franklin Burgess and Magistrate J. Kelley Arnold.  If the court refuses to exercise its optional jurisdiction over supplemental state law claims, you may be interested in refiling the entire case in state court, and then dismissing the federal cause of action.

            State courts have concurrent jurisdiction over the primary federal civil rights and discrimination causes of action.  If you strongly favor filing in federal court, but have concerns about this issue, make a telephone call to the law clerk of whichever judge you are assigned to (see General Rule 8) and ask what that judge's practice is.  If you receive information you do not want to  hear, you may consider filing in state court and nonsuiting the federal case even before you serve defendants.

            10.  Nearly all civil litigants are required to participate in mediation under CR 39.1.  This is one of the best and most effective[4] of the local rules.

            The people who are empowered to act as mediators are designated in CR 39.1(b), the register of volunteer attorneys. These are generally well experienced and respected federal practitioners who can bring a substantial amount of credibility to the shuttle negotiations they generally engage in.  I have also used the Judicial Arbitration and Mediation Service (JAMS), and attorneys who are qualified but are not actually on the list, to accomplish mediation.  The court really doesn't care that you stick to the list, so long as you comply with the objectives of mediation.  See CR 39.1(a) and (b)(3).  The objective is to settle cases before final intense trial preparation and a great amount of money have to be spent by the parties, and before the court has to spend time resolving dispositive or discovery motions.  All parties have input into the selection of a mediator, and should not have any difficulty agreeing on someone to act as the mediator.  I have never been involved in a case where the parties were unable to agree on an acceptable mediator.

            Within thirty days before mediation, the parties are required to make some effort at settlement.  If unsuccessful, mediation needs to occur prior to the time designated in the order the Court issues after the parties have filed their joint status report, typically about the time of the discovery cut-off.  After a mediator has been selected, the parties are required to each provide the mediator with a pretrial order if one has been prepared and, if not, with relevant pleadings.  CR 39.1(c)(3)(C).  The first memorandum, less than ten pages, dealing with both liability and damages is required to be served and filed at least seven days before the mediation conference. Additionally, each party is required to provide a confidential statement to the mediator of its current offer or demand.  This document affords a candid opportunity for each party to set forth its perspective of both side's strengths and weaknesses.

            CR 39.1(c)(3) provides that "the mediator will serve without compensation unless the parties agree otherwise."  An unfortunate and expensive trend has developed, whereby almost every mediator now agrees to mediate only if he is compensated at his regular hourly rate, generally to be split amongst the parties.  I have had mediation bills that ran as high as $6,000.00 in an extremely complex multi-party case, but that was extraordinary.  Be aware that the mediator will charge you for all preparation and mediation time.

            All counsel and parties are required to attend mediation. CR 39.1(c)(4)(E).  That includes representatives of insurance companies and corporations.  The purpose is to make sure that the mediation is not bogged down with inaccessibility to people with purse strings or decision making power.  Yes, the rule does provide sanctions for failure to attend.  CR 39.1(4)(F).  The results of mediation are to be provided to the court, whether settlement is reached or not.  CR 39.1(c)(7). 

            I have never had a mediator whom I felt failed to take the matter seriously, and to give his (I've never had a "her" mediator) best efforts to resolving a case.  The style of each mediator is as different as the mediators.  Surely they have blended that which has worked for them as parties with that which has worked for them as mediators.  Typically, the mediation process is conducted as a form of shuttle diplomacy.  The mediator will generally meet with all parties, and basically advise them of the purpose and ground rules of the mediation process.  The mediator will next meet with plaintiff and plaintiff's attorney, to determine what they view as their strengths and weaknesses, and to establish an opening demand to convey to the other  side. The mediator typically will not ask this early what the bottom line is.  Armed with that information, the mediator will go meet with the defendant and defense attorney.  If the parties are too far apart, the mediator will then begin bashing heads together or abort the process.  It has been my experience that they generally opt for bashing heads together, oftentimes successfully.  The mediation will take as long as it takes.  I have had mediations abort in five steps of negotiation, and resolve in as few as seven steps or as many as thirty-five steps.  You should schedule a whole day for mediation.  If you schedule a mediation for the afternoon, you would be well advised to give away your tickets to the ball game that night.

            The risks of litigation are known well by all of you.  The option to bring in an expert attorney with experience in your given area is a tremendous mandatory option in federal court.     

            11.  Alternative dispute resolution processes are also provided by the local rules.  CR 39.1(d) provides for voluntary submission to arbitration in accordance with the provisions of 28 U.S.C. §§ 651-58.  The procedure is enunciated with typical federal specificity in the rule and is similar to the Mandatory Arbitration Rules in state court.  The parties may agree that its either a binding arbitration process, or subject to a request for a trial de novo.  CR 39.1(d)(13).  The parties have 30 days after the award to request a trial de novo.  CR 39.1(d)(16)(A).  In that event, trial will be conducted as though no arbitration had occurred.  Of course, if you do not improve your position after you have requested trial de novo, you are subject to an assessment of costs and reasonable attorneys fees pursuant to 28 U.S.C. § 1920 and CR 39.1(d)(16)(D).  On the upside, if you've gone through arbitration you don't have to go through 39.1 mediation.

            The second, and most innovative, alternative dispute resolution mechanism is the summary trial jury trial, provided for in CR 39.1(e).  I have not used this process yet, but hope to do so in the near future.  The process provides for a judge or other designated person, other than the judge you've been assigned to, to preside.  CR 39.1(e)(2).  An advisory jury of six people is contemplated, selected through typical voir dire. The parties will be limited to between an hour and two and a half hours each, and the proceedings shall be confidential.  No witnesses testify, as all evidence is presented through the attorneys.  Jury instructions are given.  After the presiding officer has summarized the law of the case, jurors are allowed to ask questions of either party or counsel.  The jury then returns a verdict.  The parties may stipulate that the verdict is final and binding, or they may stipulate to any other use of the verdict that will aid in resolving the case, but it will not be admissible if there is a subsequent federal trial.  Definitely an interesting process, worthy of exploration.

            Magistrate Arnold is believed to be the only member of the federal judiciary who has presided over such a proceeding and he reports that he thinks its a terrible idea that doesn't work. 

            Next time, more stuff, including the minefield of discovery, including an explanation of the Western District of Washington's opting out of the Federal Rules of Civil Procedure with regard to discovery.