The Best Time to Plant A Tree: Litigation Prevention and the Contract
by Andrew Flake
You may have heard the proverb along that the best time to plant a tree "is 20 years ago." It makes us pause and consider that in so many instances, we're taking small actions today with benefits...
Changing the House Odds: Certainty and the Mediation Process
by Andrew Flake
I was in Las Vegas last week, at Caesar's Palace, for a meeting of the ABA's Dispute Resolution section, an annual gathering of mediators, arbitrators, and other dispute-resolution professionals to compare notes on best practices and to take...
Alohomora! Unlocking the Secrets of Successful Mediation
by Andrew Flake
I've enjoyed the Harry Potter books and then movies as they've come out over the years. They're filled with clever details and creative touches, like portraits that move and interact with the viewers (I suspect there...
And Enjoy Your New Yacht: Staying True to Course, Eleventh Circuit Reaffirms Limits of “Exceeding Powers” Arbitration Award Vacatur
by Andrew Flake
For a family vacation last week, we spent time in the Caribbean, with its sweeping vistas of sky and ocean, and ships large and small catching trade winds in their sails. Naturally, when I came across a...
Is Arbitration “Just Like” Litigation? Some Challenges to Conventional Wisdom
by Andrew Flake
I will occasionally hear, including from some very seasoned litigators and trial lawyers, that arbitration is “just like” litigation. Is that really true? I suppose, In the sense that they are both proceedings that...
Stops along the Way: When the Mediation Discussion Makes Sense
by Andrew Flake
More than ever, with case dockets overloaded, our trial judges welcome counsel's willingness to mediate. Indeed, much more frequently, I see them ordering parties to mediate, and doing so earlier in the litigation process, as part...
Abogados and Avocados: Section 1782 Nets Early Access to Corporate Records in Mexican Litigation
by Andrew Flake
Reminding us of why 28 U.S.C. Section 1782 matters in cross-border litigation, the Eleventh Circuit in a just-published decision affirmed the validity of subpoenas directed at a U.S. company for records, not of the U.S. company, but of...
A Utility Player at Trial: The Humble Inference
by Andrew Flake
This week, we hold up for praise...the inference. Unassuming and hardworking, inferences reward more careful attention than we give them. The careful reader will recall, for example, that last week's Eleventh Circuit case turned on an inference --...
11th Circuit Uses Trademark Case to Instruct on Summary Judgment Practice
by Andrew Flake
In a trademark case decided just this month, FCOA, LLC v. Foremost Title & Escrow Services LLC, the Eleventh Circuit considered when a case should be decided without a trial, looking at the special case in which...
Chat GPT and Litigation Technology, Reprised
by Andrew Flake
When I considered ChatGPT in last week's post, musing about how disruptive this next generation of AI might be for the world of litigation and dispute resolution, I may have understated the...