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Litigation & Arbitration

Nov. 8, 2017

Hon. John F. Herlihy (Ret.)


Silicon Valley

Business/Commercial, Class Actions, Construction, Employment, Family Law, Insurance, Intellectual Property, Personal Injury/Tort, Professional Liability, Real Property

Hon. John Herlihy (Ret.), a full-time ADR professional at JAMS and former Supervising Judge of the Civil Division of Santa Clara County Superior Court, has extensive experience in dispute resolution. He has case managed, settled and tried thousands of civil cases including some of the county's most complex civil litigation during his almost 30-year judicial career, of which more than half was spent settling and hearing civil cases.

Judge Herlihy is well regarded by counsel as a very knowledgeable, thorough and fair jurist with a strong command of the facts and issues, who takes time to closely consider the issues in a case. He understands that the high cost of traditional litigation in terms of money, time and emotion necessitates effective ADR solutions.

As one attorney put it, "Judge Herlihy has a touch and intellect that are very effective." Another attorney stated, "Judge Herlihy talked everyone into staying, kept at it and against all odds, got the settlement done." One attorney summed up his ability, "Judge Herlihy has a great ability to work with people and size them up and recognize the strengths and weaknesses of both parties."

Whether you need a mediator, arbitrator, special master, general or special referee, neutral evaluator or judge for a mock trial, Judge Herlihy has done it all.

Just a few of the many areas Judge Herlihy has expertise include:
• Business/Commercial
• Employment
• Personal Injury/Torts
• Professional Liability
• Real Property
• Class Actions
• Insurance
• Family Law
• Intellectual Property
• Construction Matters

Q&A with Hon. John Herlihy (Ret.)

Q: What is the most effective tool an attorney can bring to a mediation? A powerful mediation brief? The client? Something else?
-- Paul Kiesel, Kiesel Law LLP

A: The most effective tool for an attorney to bring to a mediation is a different skill set than the attorney would bring to a hearing or trial. The attorney is still the advocate for the client. However, mediation is an ADR process with settlement as the goal. The attorney should take a critical look at the strength and weakness of the client's case, as well as the other parties' cases. In addition, the attorney should understand the client's best alternative to no agreement. What happens if the case does not settle? What is truly in the best interest of the client? Are there reasons why the client should settle the case even though the facts and/or the law seem favorable to the client? Is the client prepared to invest the time, money and emotions, if the case does not settle? Wear your settlement hat, not your trial suit!

Q. Arbitration was long thought to be a more efficient and cost effective means of resolving disputes. However, arbitrations increasingly resemble civil litigation in court, with extensive discovery, discovery motions, pretrial motions in limine, etc. In some particularly complex cases, that may be appropriate. Do you agree, and what can be done to return to a more streamlined approach to arbitration?
-- John Hueston, Hueston Hennigan LLP

A: I do agree that this has become a problem. JAMS Rules allow for very limited discovery in arbitrations. Most attorneys agree to expand discovery because it is believed to be necessary given the complexity of the arbitration. The best way to avoid "arbigation," is to limit discovery. An attorney should insist that the arbitration rules will be strictly applied and the discovery process will not become extensive and expensive. However, arbitration is the ADR process chosen by the parties. They can tailor procedures to fit their needs. In doing so, the risk is that the process will not be streamlined but rather protracted. Prehearing motions in limine are generally unnecessary. If you want to highlight an evidentiary issue, write it in a prehearing brief. This will give the arbitrator an opportunity to prepare for this important issue.

Q: When do you begin the process of a successful mediation in a complex matter? Do you contact the parties in advance after receipt of the mediation briefs to gather intelligence, collect thoughts, answer questions, etc.?
-- David Willingham, Boies Schiller Flexner LLP

A: I like to read the briefs first. Then I do whatever legal research I feel I need to do in advance of pre-mediation calls. I always talk with counsel separately and without the clients on the call. This is the time for the attorneys to be as open as they will ever be. This gives me the opportunity to explore issues that often are not put in a mediation brief, for example: the personal history of the parties; the issues that have arisen between counsel; the real impediments to resolution. Oftentimes, the law and the facts are not the problem. Frequently, the personal issues of the parties are the roadblock to settlement. Understanding those issues before the mediation session is extremely helpful. In fact, trying to learn these issues during a mediation can be very difficult. I can be much more effective as a mediator if I know the backstory.


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