Adler Insurance

Adler Insurance
Republicans are eliminating themselves from the political landscape, but shouldn’t these 34 Dems be voted out?

These 34 Democrats stood with big insurance to uphold pre existing condition.
These 34 Democrats stood with big insurance to uphold arbitrary caps on insurance coverage.
These 34 Democrats stood with big insurance to uphold dumping the insured when they get sick.
These 34 Democrats stood with big insurance to keep seniors trapped in the dough nut hole.

Adler (NJ)
Altmire
Arcuri
Barrow
Berry
Boren
Boucher
Bright
Chandler
Childers
Davis (AL)
Davis (TN)
Edwards (TX)
Herseth Sandlin
Holden
Kissell
Kratovil
Lipinski
Lynch
Marshall
Matheson
McIntyre
McMahon
Melancon
Minnick
Nye
Peterson
Ross
Shuler
Skelton
Space
Tanner
Taylor
Teague

Shouldn’t they all be voted out of office?
Say what you want. But when people get a taste of no pre exisiting condition, no caps, and kids insured to 26…… The American people are not going back to being stepped on.

They should certainly leave the Democrats – since they have integrity and intelligence! Maybe the Independents, Libertarians or Republicans will accept these Democrats with flaws. I applaud them for their courage. Only the politically “bribed” voted for what the Democrats recognized as a badly, flawed bill.

Congressman Adler Calls on Congress to Make Health Insurance More Affordable for Small Businesses

Putting Civility Back Into Litigation

PUTTING CIVILITY BACK INTO LITIGATION

Our system of civil justice is an excellent one. However, as is often the case, the system is no better than those who run it. A well-designed automobile will not run very well if shoddy parts are used.

System Abuses

In our civil justice system, regrettably, many attorneys choose to abuse the system by filing frivolous motions and objections, being uncooperative, and requiring things to be done the hard way, rather than the easy way. Most attorneys are not seeking justice, they are seeking victory. Sanctions are difficult to obtain and thus, those who adhere to these “delay and abuse” tactics can benefit and prosper. Similarly, a gruff offensive attorney (close your eyes and see if you can imagine such) invites a lack of courtesy in return, which then creates a rapid downward spiral of behavior. Often times this anger and bitterness can cause a litigator to lose sight of the task at hand.

A potential solution to the problem of having to deal with our obnoxious “hide and seek” colleagues is alternative dispute resolution (ADR) procedures. Unfortunately, unless ordered by the court, many of these “delay and abuse” individuals do not desire to participate in ADR because it is contrary to their philosophical approach to litigation. However, for those who prefer a more civil approach to civil litigation, and those who follow court orders to participate in such, ADR can be extremely beneficial for the lawyers, clients, and judges.

Mediation

There are two types of ADR: mediation and arbitration. Mediation is simply a meeting in which both parties and counsel appear before a mediator who serves as a facilitator to try to resolve the dispute. Typically, at a mediation, there is a meeting between all the parties and counsel during which a brief overview of the case is presented and where some mediators will request the parties to state the strengths and weaknesses of their case. The group then breaks into separate groups, each consisting of party and counsel. The mediator then goes back and forth between the groups with dollar figures he has extracted from the various sides. Typically, the parties agree that the negotiations are confidential and that nothing said can be used as an admission in the litigation. The advantages of such a forum are significant.

In a smaller case, it is frequently not cost effective for either side to proceed with protracted litigation. Thus, a settlement will be a “win-win” situation in which both sides benefit, as much of the costs and delays of litigation are significantly reduced. Another significant advantage is that it gives the parties (or the insurance adjustor) and their attorneys to meet. Thus, the individuals involved become people and not simply claim numbers and files. Both sides have an opportunity to size up the credibility and presentation of the parties (and counsel) and an informal exchange of some information is usually obtained. This informal discovery can be extremely beneficial to both sides in evaluating the case. It also can reduce the cost of pre-trial discovery (exchange of information). Additionally, it is harder for some attorneys (and their clients) to pull off their offensive tactics in person. Many of us who would hang up on a phone solicitor would be less reluctant to slam our front door in the solicitor’s face.

Even if the case does not settle, the monetary gap usually narrows and the mediation may have been a catalyst to a resolution down the road. Also, learning that a case cannot be settled will save time during the litigation as the parties will focus on preparing for trial and not conducting settlement negotiations.

Binding Arbitration

Another type of ADR is binding arbitration. In Missouri, in a contract setting, it is important to remember that a “consent to arbitration” provision in a contract is not binding unless it is in 10-point capital letters, and contains the following language: THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. See Section 435.460 RSMo. within the Missouri Uniformed Arbitration Act.

Again, binding arbitration can be an expeditious way to resolve a dispute. In a personal injury setting, it can be extremely beneficial on smaller cases. It also is appropriate in a complex case that a jury might struggle with understanding, or in a contract case in which “jury appeal” will not affect the amount of the judgment. Obviously, it is helpful for those who are petrified to be in front of a jury, but if one is of that bent, they probably should not be handling litigation.

Obviously, the arbitrator(s) wields tremendous power as his or her decision is binding and can only be set aside by the courts in extreme circumstances such as: 1) the award was procured by corruption, fraud, or other undue means; 2) there was evident partiality by an appointed arbitrator or corruption or misconduct which prejudiced the rights of any party; 3) the arbitrators exceeded their powers; or 4) the arbitrator refused to postpone the hearing upon sufficient cause being shown therefore, or refused to hear evidence material to the controversy. See Section 435.405 RSMo. for a listing of reasons for which an arbitration award can be vacated.

Selection or Mediator or Arbitrator

In both types of ADR, the selection of the mediator or arbitrator (a “neutral”) is critically important. It is advisable to check out the arbitrator’s background, track record, and connections with the other side. If the other side has used this individual repeatedly as an arbitrator they probably have been happy with his or her decisions and that may be cause for concern. A mediator should be someone who will carry weight with the clients and other side and will not simply be a messenger or number carrier. A retired judge or a highly respected litigator can be an excellent choice when someone involved needs some sense talked into them. Someone who is persuasive is usually more effective, in my view. Typically, the fees are shared equally but obviously this needs to be addressed at the outset and confirmed in writing.

ADR, just as the name implies, is an alternative way to resolve a dispute. In appropriate circumstances and with the appropriate parties, it can be an excellent and civil way to resolve a civil dispute and avoid some of the pitfalls of a system that is run by people.

December 18, 2008

About the Author

James F. Adler has been a Senior Partner at his law firm for 30 years and has handled 100’s of cases as a personal injury auto accident attorney in Missouri and Kansas