Tuesday, March 03, 2009

I overreacted: Judge Davis's Settlement Conference Order May Be a Standard Form

One of my young readers, "Michael", who is a law student, posted a comment yesterday suggesting that the order Judge Davis issued might actually be a standard form.

I reacted vituperatively to Michael, saying that based on my 35 years of litigation experience, it was not a standard form.

As it turns out Michael may have been right, and I may have been wrong; it appears to be a standard form commonly used in Minnesota's federal court for settlement conferences.

None of my 35 years of litigation experience have been in Minnesota.

I apologize to Michael and all of my other readers, and I thank Michael and those other readers, here and on Slashdot, who corrected me.

Moral of that story: don't hesitate to question 'authority even when the 'authority' has 35 years of experience on you.

Meanwhile, as to the substance of the order, standard form or not, the record companies will have to produce 'officers' or 'managing agents' with decisionmaking 'power'. That still means Mr. Oppenheim cannot call the shots on this one.

3/3/09 12:50 PM UPDATE
The question of whether it's a 'standard form' is not necessarily so clear. I have just heard from a few veteran Minnesota federal litigators who say they have never seen such an order in their experience.

3/3/09 3:17 PM UPDATE
It's now starting to appear that, although it is a form, it is a relatively new development that judges are starting to use it.

Commentary & discussion:


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Jadeic said...

Shame - and all along I thought Oppenheim was a powerful decision-maker...

Shame also that he cannot show your level of humility Ray - it does you great credit.


Michael said...

As the "Michael" mentioned in this post, I'd like to point out that I just said it looked like a form notice and that Sam was the one who said that it actually was a form notice.

I'm a law student in North Carolina. Sam is a lawyer in Minnesota.

raybeckerman said...

Many many thanks to Michael for first pointing this out to me, and to Sam who not only pointed it out to me but offline emailed me several copies of orders from other cases.

Thanks guys.

At least when I make a mistake I have my friends to help me get it right!

Scott said...

Regardless, I would love to be a fly on the wall at that conference!

I'm wondering if it would be of benefit if courts conducted such closed-door conferences earlier in the cycle -- perhaps even before litigation. It might make the whole process more economical.

Anonymous said...


Thanks for practicing what you preach and being honest enough to admit when you make a mistake.

It seems that is a quality sorely lacking in our judicial system when the exceptions (such as you and Judge Davis) are so noteworthy.


Alter_Fritz said...

Scott, the problem is with those lobby organisations that are actually doing the suits that they are old and lazy guys that simpy don't want to settle the claims early and cheaply since they simply live off of the money that tehy get from the labels.
and they must at least pretend that they offer the lables something in return or those shareholders would rebell once they would become aware how useless those lobby organisations like IFPI or RIAA actually are.
Take for example the IFPI:
The boss there is a guy that -while being a formal lawyer since the mid/late 70s- has not worked as lawyer for the last 12 years, known not really what he talks about and has a wife that don't allows him to mess with her car!
This guy is totally dependent on the money that the gullible shareholders give him. So those in charge of this scorced earth tactics have no reason to stop these suits in an early stage when they would only get a small amount from actual infringers.

hear the testimony of the british IFPI boss Kennedy in Sweden last week.

raybeckerman said...

3/3/10 12:50 PM UPDATE
The question of whether it's a 'standard form' is not necessarily so clear. I have just heard from a few veteran Minnesota federal litigators who say they have never seen such an order in their experience.

Anonymous said...

I'm not from Minnesota. But the first part of the order strikes me as perfectly normal. If anything is unusual, it may the the second part that says:

Trial counsel shall meet with one another on or before March 16, 2009, to seek to
achieve an agreement to resolve this dispute. If complete agreement is not reached, each
attorney shall deliver to chambers on or before March 23, 2009 by noon, a letter which
shall include: (1) the parties’ respective settlement positions before the meeting; (2) the
parties’ respective positions following the meeting; (3) a concise analysis of each remaining
liability issue, with citation to relevant authority; (4) a reasoned, itemized computation of
each element of the alleged damages, with a concise summary of the testimony of each
witness who will testify in support of the damage computations; and (5) a reasoned analysis
justifying their client’s last stated settlement position as well as any additional information
believed to be helpful to the process of reaching agreement. This letter is for the Court’s
use only and should not be served on opposing counsel.

Now, the obvious question is that if Judge Davis gets to see all the confidential stuff and even potentially dirty laundry that may come his way, some of which won't be visible by both sides, can he continue on to try the case if it gets that far? Seems me that if either side doesn't want a recusal motion to get Judge Davis off the case, it should try to get another judge or magistrate do the mediation.

Anonymous said...

In response to the last comment, it is common for judges to become involved in settlement discussions, but only in jury trials, not in bench trials. The theory is that since the jury will decide the facts, anything the judge learns during those discussions will not affect the outcome if the case goes to trial. Judge Davis's willingness to be involved makes settlement far more likely, because it will be harder to resist the pressures he can exert. This is good for the parties, but not for those of us who hope to see the jury come down with a defendant's verdict and whopping attorney's fees....

Anonymous said...

OK, let's start the pool for the settlement. My vote is in for 9x damages, about $200 or so.

2L law student

raybeckerman said...

Highly unlikely that we will ever know.