It's coming close to the end of the year. Many websites and news outlets use the end of the year to highlight those news stories and headlines that made people talk or, alternatively, that people may have missed along the way.
That second issue is what this blog post is about. I am taking the opportunity today to highlight several articles from the Forum's e-newsletter Under Construction that fall under the rubric of dispute resolution, litigation, and advocacy -- in other words, those articles that members of Division 1 should read.
March 2014 Edition
The March 2014 Edition of Under Construction featured an article that arose out of a blogpost here at the Dispute Resolver. The two Anthonys on our blog panel -- Anthony Osborn and Anthony Lehman -- collaborated to give tips on drafting lawsuits to trigger insurance coverage. While not meaning to blow our own horns too much, this article provides some useful information to the lawyer trying to find some money to cover a construction defect for an owner or to invoke contribution from subcontractors for a contractor client.
A second article of note from March 2014 came from Division 1 member Jason W. Hill of Shutts & Bowen LLP in Orlando. Entitled, "Stays Pending Arbitration of Claims Made Either By or Against Non-Parties to Arbitration Agreement," Jason's article covers a situation which arises frequently: when a party to a contract with an arbitration clause attempts to avoid arbitration either by suing in the name of a non-signatory to the agreement or by suing non-signatories to the agreement. Jason's well-written article covers mandatory stays, discretionary stays, and whether parties can appeal the court's decision on such a motion.
The final article I want to highlight is not strictly related to litigation/ADR, but it does relate to an issue that all of us deal with regularly: New client and new case intake. Peter C. Halls of Faegre Baker Daniels LLP in Minneapolis and Erik P. Raines of Hill Ward Henderson in Tampa provided their checklist of issues to note when reviewing how to process and pursue potential claims on behalf of a client. The checklist includes noting dispute resolution procedures, whether mediation is required or should be used, what notice might be required, whether arbitration is involved, whether any statutory requirements need to be satisfied prior to filing suit, whether all parties are involved in the case, and making sure that client concerns and expectations are addressed. It's a fascinating look at how Peter and Erik deal with these issues.
September 2014 Edition
In the September edition, yet another Under Construction article that started as a Dispute Resolver blogpost was featured in discussing the AAA's Supplementary Rules for Fixed Time and Cost Construction Arbitration. Now I'm bragging, because I was the one who wrote this article, but I have had other people tell me it is a good article.
An article featuring an interview with the Honorable Nancy Holtz, Division 1 member and frequent blog contributor, also appeared in September. Judge Holtz discussed the "Judge's Toolbox" for dealing with construction cases in court. In that interview with Under Construction editor Jayne Czik, Judge Holtz provided important advice as to how we, as litigators, are viewed by the judges presiding over the cases we are trying. If you have not read this interview, do it now.
September featured two more articles that touched on issues of ADR/litigation about which we as advocates should be aware. First, Suzanne McSorley of Stevens & Lee in Princeton, New Jersey, wrote about the importance of coming to mediations prepared. As she pointed out from her perspective of nearly twenty years serving as a mediator, the point of the mediation is to come to negotiate and not to convince a mediator that your client is "right."
Finally, Sanjay Kurian of Becker & Poliakoff in Fort Myers/Naples, Florida, wrote an intriguing article discussing electronically stored information. Yes, everyone in litigation has ESI fatigue and has had it for at least the last decade, but Sanjay's article looks at how contract clauses can be fashioned up front in the construction process to determine what ESI will be retained and considered as part of the project documents, which custodians will be considered as key personnel, what search terms would be used for searching through electronic information, and who will bear the costs for searching/storing information. From my perspective, these types of agreements make a lot of sense and require some finesse in how they are drafted; it would be a good idea for the transactional lawyers to work with their litigation colleagues to make sure what is drafted makes sense in a litigation context.
As the chair for the Division 1 publications subcommittee and on behalf of everyone on the Division 1 Steering Committee, I hope that everyone has a safe and happy holiday season. Thank you for reading the blog this year.