Publications

Although risk transfer is sometimes viewed as analogous to questions concerning a party's potential liability and exposure, the reality is that risk transfer - perhaps, more aptly described as liability transfer - is the true "money game." A successful transfer of a party's defense and indemnification at the start of a lawsu...

"Tense" can be a good thing. The 2nd Circuit just reminded us that your arbitration agreements need to be clear as to the point in time when compulsory arbitration clauses are effective. The "tense" of your verbs matters. In Allstate v. Mun, Docket No. 13-1424-cv. (decided May 6, 2014), the Court allowed Allstate to proce...

1. Prepare the client for the mediation much in the way you prepare them for trial. 2. Consider how you will manage their expectations. 3. Give them a realistic analysis of the strengths and weaknesses of their case in advance. 4. Discuss the mediation process in detail. 5. Explain the mediator's background and r...

Do give consideration in advance as to what confidential information will be revealed to the mediator in the breakout session. Do not attempt to rush the mediator into giving an evaluation of the merits of the case. Do give the mediator ample opportunity to speak to both sides. Do not become mired in arguments as to...

Resolving a dispute through Mediation on the eve of trial presents a unique challenge to the Mediator because the parties' counsel are in the "trial zone" - the zone in which settlement no longer is seen as the goal and, instead, the focus is solely on prevailing at trial. When in "the zone", both sets of counsel may have di...

When football players at Northwestern University launched a bid to unionize last year, and a regional director at the National Labor Relations Board ("NLRB") ruled that the players are employees under the control of the university, a veritable "Pandora's Box" was opened that could, ultimately, end collegiate athletics as we ...

During my fifteen years as a Judge, I have heard the testimony of hundreds of witnesses in all types of proceedings. As a trial attorney in private practice, I prepared a great number of witnesses to testify. Even with the best preparation, my father, who was a great trial lawyer, would say he would die a thousand deaths whe...

Many cases that come to mediation involve novel questions of law. Invariably, there will be a dispute as to the proper law applicable to the case and the interpretation of appellate decisions that impact upon same. It is common for parties in the context of their pre-mediation brief to cite case law with a summarization of t...

In the wake of criticism of the National Football League (NFL) and its commissioner, Roger Goodell, over the handling of domestic violence issues, there is an opportunity for the league to establish clearer, more uniform standards of player discipline. Emerging from the recent owners' meetings in New York, Commissioner Goode...

Volume is a great teacher. Nothing could have fully prepared me for the bench even though I tried many cases in private practice and spent a great deal of time in the courthouse. The sheer number of cases and the decisions that had to be made in a day dwarfed any type of previous experience. Much in the same way the sheer nu...