• July 24, 2012

L’esprit de l’escalier,” or staircase wit, is a French expression for the witty comeback that we sometimes think of when it is too late.  When sitting home after the party or when driving home after the deposition, we might suddenly think of a clever tactic or retort that we really could have used hours before.

To some extent, this condition is inherent in human nature and communication.  We often act far more quickly than we can carefully formulate words to speak.

This limitation of human reasoning and communication highlights the critical importance of trial lawyers’ preparation and the critical importance of experience and repetition in the development of expertise in complicated time-critical activities generally.  And one scenario where this issue comes up for trial lawyers and can have significant adverse consequences is in mediation.  

Civil litigation is often a marathon and rarely a sprint.  It is rare for cases to resolve in weeks or even months.  It is common for cases to go for many months and sometimes several years.

But sometimes complicated multi-party protracted battles are wrapped up in the intensive flurry of a single day’s mediation.  Trial lawyers need to stay on their toes.  Mediators may push all sides hard to find common ground.  The process can go for hours and it can be exhausting.  Lawyers must make sure that they keep in mind ALL of the particular terms their clients want to be part of a settlement.  The main focus of many mediations is on a dollar amount that everyone can live with but other terms may be critical to one’s client and should not be taken for granted.

Here are a few common clauses that sometimes do not get fully negotiated and can, after an agreement on financial terms, cause problems if left unresolved:  an agreement to keep the terms confidential, a non-disparagement clause, a commitment as to timing (“we said we would pay you $X but we did not say when…”).

The Escamilla Zuniga v. SMS and Gonzalez sexual harassment employment case has been going for years.  After a mediation earlier this month, it seems to be extremely close to settlement.  To hear Gonzalez’s lawyers tell it, however, it seems that the plaintiff, after a complete agreement was negotiated, only later thought to add some additional terms that she wanted to include in the settlement.

It is possible that plaintiff’s counsel took for granted that defendant would accede to a “no contact” agreement with someone who accused him of hideous and despicable wrong-doing.  Similarly, maybe counsel took a “non-disparagement clause” as a “gimme,” a “it goes without saying” kind of thing.  Ideally, however, this is the kind of thing best handled at a mediation and it can be hard and costly to handle later.

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