April 30, 2012 by Resolution Remedies
As reported on the front page of the San Francisco Chronicle on Friday, March 2, 2012, there is a new push to put an end to the death penalty in California. The motivation is not the debate about crime and punishment: it’s financial. In 2008, a state commission found that the death penalty was costing California $137 million a year for trials, appeals, and maintenance of Death Row. Eliminating the death penalty, substituting life in prison without parole, would save $126 million a year. Other studies place the spending even higher.
Few would quarrel with the fundamental right to jury in criminal cases, guaranteed by the U.S. Constitution. But what of civil cases? Ms. Jones wants a jury trial when she sues her boss for harassment. Mr. Smith wants a jury to assess the value of his back pain since he was hit by a drunk driver. Is the boss, or the drunk driver, entitled to defend the case before a jury? Is the state obligated to provide each and every citizen with the right to a trial, by jury, in any case over the small claims limit? In Marin, to conserve court resources, the small claims limit is being raised to $10,000, in part to reduce the number of cases on the trial track.
Category: Resolution RemediesTags: ADR mediation "jury" "jury trial" "court system" | Comments Off
March 26, 2012 by Resolution Remedies
BY W. BRUCE WOLD, ESQ.
After more than thirty years trying cases on the West Coast, doing my best to represent the interests of one side or the other zealously, I embarked on my next career: occupying the “middle ground” between battling litigants. Even though I had participated as an advocate in many mediations around the country, and experienced most every mediation style and technique imaginable, taking on the role of mediator required significant adaptation and learning on my part. While my legal background gave me the proverbial “leg up” as a mediator, and the excellent training I received in the mediation training classroom was quite valuable, my years of on-the-job training in litigation—combined with my experience as a pilot—allow me to see the proper place of the mediator as the “middle man” in the mediation process.
The idea to write this piece came to me while sitting in a “check your ego at the door debriefing,” immediately following a formation flight of three Beech Bonanzas. On that particular day, I had been flying #2 and, in certain of the formations, flying with the lead aircraft on one side of me and #3 on the other side. As the one in the middle, I had a clear duty to each of the other pilots to fly responsibly and to support the overall mission. The purpose of the detailed and frank debriefing was to understand how well we had worked together, what mistakes had been made, and what could be learned to prepare for the next mission. Neither the mission nor the debriefing had room for ego.
Category: Resolution RemediesTags: mediation, Resolution Remedies | Comments Off
March 14, 2011 by admin
by Gary T. Ragghianti
In the late 70′s, I was the Assistant City Attorney in Tiburon. The City became involved in a dispute with a landowner over the constitutionality of a zoning ordinance the City had adopted, under which the property owner was entitled to a density range of between one and five units on their spectacular five-acre ridge top parcel. Without filing an application to develop the property the owners brought suit against City, alleging it had “taken” their property pursuant to a facially unconstitutional zoning ordinance, and had failed to pay them just compensation, as mandated under the Federal and California constitutions.
I worked on this case with my then-partner Robert I. Conn, who was the City Attorney, through the Marin Superior Court and Court of Appeal. The California Supreme Court granted a hearing in the case. In the course of the case’s journey through the state court system, we advanced an argument that was both new and perceived by many to be heretical, as well as revolutionary.
Specifically, we asserted that the remedy for overregulation of real property by a public agency should be invalidation of the offending regulation rather than payment of money damages. When Bob Conn first raised this argument with me, I recall my initial disinclination to accept it. Asked by Bob why money damages should be the sole remedy for a regulatory taking, I responded that the Fifth Amendment to the Federal Constitution mandated it.
Category: Resolution RemediesTags: Resolution Remedies | Comments Off