The author—an experienced teacher, social scientist, litigator, and mediator at Pacific ADR—discusses one of the essential skills for attorneys at any stage in their practice:  litigation valuation. 

On the last day of May 2023, I had the great pleasure of sitting through an entire merits oral argument calendar in Division One. Why was the experience so gratifying? In part because, as Judge Mann announced in calling the calendar (at 9:30 a.m. sharp!), it was the first time in over three years the Court had heard multiple cases on an oral argument calendar. Judge Mann noted that the last time he had presided over a calendar, in Spring 2020, it was to announce that “for the duration,” arguments would be conducted in a manner that, at that time, had yet to be determined. Of course, “the duration” lasted far longer than we ever imagined, but Division One’s ingenuity in keeping the courts open was up to the challenge.

Mock trials have surged in recent years as attorneys struggle to comprehend rapidly changing jury pools around the country. Political polarization, the pandemic, inflation, and the emergence of the millennial juror are just a few of the things leading to the rising uncertainties that drive jury research. The reasons for conducting mock trials vary from client to client. Some do it to see if they will “win or lose.” Others want to gauge damage exposure ahead of mediation. Still others use them to manage client expectations or help insurers see the painful reality of the case. Regardless of the reason, mock trials provide an incredible strategy development tool that can fundamentally change how the case is tried.

Recent recipient of KCBA’s Outstanding New Lawyer Award draws attention to Medicaid supplementation—an issue of which every practitioner ought to be aware.

Office space postings.

I recently gave a lecture to a large number of young lawyers talking about the ABCs of mediation; my three-legged stool: know your case, prepare your client, and be patient. I was very happy with how the lecture went. A few days later when I received the results of the survey completed by the attendees, I was even more pleased to see a high level of satisfaction with my presentation. But there was one comment that really caught my eye. A young lawyer was critical that I had not explained the basics of how to prepare for and participate in a mediation. This caused me to pause and wonder whether my so called “ABCs” were really not the XYZs, or at least somewhere in the middle of the alphabet. I asked myself whether there was something more fundamental I could offer to that lawyer and others, who like all young litigators, are faced with their first mediation. After some thought, I discovered there is much to say. There is in fact more to say than can be covered by one article. So, I will break this into at least two parts.

The other day when I was searching the KCLL catalog for something totally unrelated, the title Acting Skill for Lawyers popped up. I envisioned advice on how to chew the scenery with “Law and Order” level aplomb, did a big eyeroll, returned to my research, and moved on. Later in the week while giving a presentation on resources available for remote access through our Lexis Digital eBook subscription, I remarked that resources ranged from the full run of gold standard treatises like Corbin on Contracts to lots of “fun” titles such as . . . (naming the first title that popped into my head) Acting Skills for Lawyers. Dang it. That title had infiltrated my psyche.

In law school, I often heard that attorneys were risk-averse and cautious, careful to stick to the tried and true. This might have less to do with attorneys and more to do with human outlook in general. However, in sticking with this month’s theme, let’s challenge this default. Many of us might not have the bandwidth to change up the routine, reorganize checklists, and opt for new software or practice management systems, but it is not a bad idea to shake things up a bit.

Song of Myself 

By Walt Whitman

The following are highlights from the KCBA Board of Trustees meeting held on May 17, convened by KCBA President Tahmina Watson.