Friday, May 18, 2018

ADR's final frontier: Appellate Mediation

Image result for let's make a dealToday's DJ offers The last frontier of ADR: appellate mediation, by 1/2's retired Justice Nace Ruvolo, who's now with JAMS. He makes the following points:


  • The latest Court Statistics Report (2017) published by the California Judicial Council reveals what many laboring through the intermediate state appellate process already experience: The median time for appeals from notice of appeal to a filed opinion is 842 days with a range from 622 to more than 1,200 days. Ironically, like the trial delays of the 1980s and 1990s that drove litigants and lawyers to erect alternative dispute resolution processes for lower court cases, so too appellate delay is contributing to the momentum behind appellate mediation's growth.
  • Compounding the impact of appellate delay is the unique reality that an appellant who appeals from an adverse monetary judgment will have to pay 10 percent annualized post-judgment interest if the judgment is affirmed. Thus, the time value of the judgment itself becomes relevant in comparing the post-judgment interest rate to the rate of investment return available during the pendency of the appeal, particularly when the process will not be completed for two to four years.
  • As significant to the success of appellate mediation as any of the above factors is the relatively high reversal rates for civil appeals generally. For example, the most recent Judicial Council annual report reveals reversal rates for civil appeals in 2013, 2014, and 2015 at 30 percent with another 10 percent of judgments modified. These reversal rates are consistent with my own experience at the 1st District Court of Appeal over more than two decades.
  • Similar to the statistical conclusions reached in the 1st District, the 3rd discovered that, in descending order, the settlement rates were highest for appeals from court trial verdicts, followed by jury trial judgments, and then motions for summary judgment. The lowest rate was in appeals from judgments entered after demurrer.
  • Examining settlement rates by area of substantive law involved, both courts have found that probate and family law appeals, which almost always involve the practicality of "wasting assets," and which often arrive at the appellate level with the parties emotionally exhausted, enjoy the highest settlement rates.
  • Speaking of retired appellate judges, what's Judge Posner up to? Well, see: Posner brief accuses judge of laziness for copy-and-paste order