Fixed-cost Dispute Resolution, Los Angeles

	Q.	Who will be the hearing officer?

	A.	An experienced lawyer, with no less than 20 years' experience handling civil matters. Our opening panel will include three lawyers other than Mr. Chodos; and all of the panelists have the requisite skills, learning, and love of the law which enables them to offer convincing opinions in civil matters.

	Q.	Why isn't a retired judge more qualified than a lawyer?

	A.	Some retired judges are great; some are not so great. We want to remove the smell of bureaucracy from our program, and most judges have a large bureaucratic component to their thinking, and all too often, to their personalities. So we decided that having been a retired judge is a DISQUALIFICATION for serving as a hearing officer in our program.

	Q.	Isn't it misleading, then, to talk about renting a "judge" when you are really talking about renting a lawyer?

	A.	Anyone who is asked to hear a dispute and resolve it acts as a "judge." Of course, sitting judges cannot be "rented" at all: they are officers of the state, who cannot accept payment from the parties. Our service deploys experienced lawyers to serve as judges: we think of them as "judges without robes"!

	Q.	I understand how the fixed-length hearing removes the judges' incentives to protract the proceedings. But does it not provide the opposite incentive: for the hearing officer to come to a quick conclusion without spending the time necessary to understand the case and research the opinion?

	A.	Yes, you are right: there is that incentive. Of course, the relatively low fixed fee limits your risk. But the real point is that we keep score on our matters, and add up the number of cases where BOTH SIDES - both winner and loser - agree with our written opinions and decide to make them binding. Those cases are the ones we consider most successful. And you don't convince the loser that your opinion is right unless you have heard his case and given it due consideration.

	Q.	How can you limit the number of exhibits? Doesn't a real trial get extended as the number of exhibits introduced into evidence grows?

	A.	Yes, the mechanics of introducing exhibits can often take a lot of time all by itself. But like every sophisticated court, we encourage the parties to agree in advance on the admissibility of as many documents as possible; and where something really important turns on documents, we ask the parties to bring those particular documents to the foreground in their briefs. Our experience has been that a great deal of court time is wasted arguing about documents. But here again, there is a point to remember: if you cannot present the key documents in a short time and explain their significance to our highly experienced and sophisticated hearing officers, how are you going to cram them into the minds of your twelve jurors?

	Q.	Your rules allow no more than 25 pages of argument to be submitted by each party. How can a complicated case be presented in such a short space?

	A.	To ask the question is already to answer it. If you cannot present your arguments in a compact brief, how are you going to persuade anyone of their validity? One of the greatest benefits you will receive from going through our process is that you will force yourself to CUT TO THE CHASE and BOIL IT DOWN TO THE ESSENTIALS!

	Q.	Can you compel witnesses to testify at your hearings?

	A.	No, only the parties and the witnesses sympathetic to them are likely to testify. We do not have the subpena power. BUT we allow the introduction of testimony by way of deposition, so if you have already deposed a hostile witness in a court proceeding, that testimony can be used. Furthermore, in proper cases we can draw reasonable inferences from the refusal of a witness to testify. But the fact is: most of the cases we will hear are those where the testimony comes from the parties themselves, and those close to them.

	Q.	Are your hearings recorded?

	A.	Only if both parties want them to be, and only if the witnesses agree to testify under oath. Without the parties' mutual consent, everything that happens at these hearings is confidential, and none of it can be used in court. Our process is a kind of mediation, and is covered by the privilege of Ev. Code Sec. 1152.

	Q.	How is this really any different then from mediation?

	A.	Even though our hearings can be thought of as supplements to mediation, they are not mediations at all. Our purpose is not to persuade the parties of anything: instead, they come to persuade us of the validity of their positions. Our hearings serve as "dress rehearsals" for trial. And in some cases, the parties come to feel that the "dress rehearsal" was so convincing that no further "trial" is needed.

	Q.	How are your hearings different from arbitration?

	A.	Reasoned opinions are always written and delivered to both parties: that is not something that an arbitrator is required to do. And see the following point.

	Q.	How do you ensure that the hearings will be "one-day trials"?

	A.	We have a very simple, fixed-form schedule for our one-day hearings: 8:00-9:00 Motions in limine. Disputes over evidence. 9:00 - 9:20 Opening statement by plaintiff 9:20-9:40 Opening statement by defendant 9:40-Noon Plaintiff's case-in-chief, with cross-examination by defendant. 1:00 - 3:20 Defendant's case-in-chief, with cross-examination by plaintiff. 3:30-4:00 Plaintiff's closing 4:00-4:30 Defendant's closing 4:30-4:40 Plaintiff's rebuttal 4:40-5:00 Mechanics and case submitted.

	Q.	What papers can the parties file ahead of the hearing?

	A.	Up to 25 pages each, plus exhibits. The hearing officer will read all filings before the hearing opens, but as to any filing more than 25 pages long, only the first 25 pages will be read.

	Q.	What papers can the parties submit during the hearing?

	A.	None, unless both parties agree at the time. By the time the parties arrive at the hearing, they should already have introduced the exhibits they are relying on.

	Q.	What papers can the parties file after the hearing?

	A.	None. The hearing officer has promised to deliver a reasoned opinion within 5 business days after the hearing. There is no time to file new papers.

	Q.	What is so good about all these limitations?

	A.	They have two advantages: They limit the cost of this hearing, both from our point of view and from yours. They force the parties to focus their presentations on what is really essential to the resolution of their dispute.

	Q.	Do you think every case is a candidate for your program?

	A.	No: this kind of approach should be tried only in certain kinds of cases. Only civil cases are accepted, and the best candidates are cases where the pertinent facts are not really in dispute. It is amazing how many cases fall into this category: one of the huge problems with the courthouse is the assumption that the facts are in dispute. Sometimes they are, but very often they are not. We handle disputes over interpretation of contracts, which turn on points of law. Another category of good cases for us is "fair use" disputes in copyright cases, since those disputes turn on an intelligent reading of the claimed infringing use and the copyrighted material. We also encourage parties to submit "pieces" of their disputes to our procedures. For instance, in a partnership dissolution case, there may be threshold issues about whether a party was in fact a partner, or whether a certain activity was inside or outside the scope of the partnership affairs. That sort of issue might be decided in a standalone, short trial, and give the parties a hint about where the case is going - and thereby make it easier to settle the remaining issues.

	Q.	Why is your approach better than standard mediation?

	A.	The real virtue of the law is that it is a shared search for justice. When the "game playing" is taken away, and when parties are encouraged to participate in the search for justice, even the losing party will feel satisfied. We think that this sort of satisfaction is the goal that legal procedures ought to aim for. Standard mediation is too concerned, we think, with people's feelings, and with mere practicalities. We try to keep our eye on the ball: the honest, earnest, straightforward pursuit of justice.

	Q.	What are the essential features of this service that make it useful?

	A.	There are five: 1. One-day trial. Although a lot of work has to be done in advance, the effort of compressing the case into a one-day trial is enormously beneficial. 2. Fixed cost. Related to the one-day trial: $5,000 per side -- period. 3. Modular Dispute Resolution. The dispute can be broken down into pieces, and each piece can be tried separately. Courts have trouble doing this. 4. Binding/non-binding. The process can be made binding or non-binding; and if it is non-binding, even one party can use it alone, as a "dress rehearsal" for the trial. 5. Open timing. The process can be invoked at any point along the litigation timeline: before filing, just after filing, after preliminary discovery has been completed, right before trial - all of these options are practical, because of the fixed-length, fixed-cost features of the service.