Moving the Conversation Forward: Early Mediation and EDR
by Andrew Flake
We take for granted that mediation is an available option for our cases. Mediation, at least the concept of a trained neutral retained to work with the parties to bridge differences and resolve disputes outside of litigation, is...
The Hourglass and the Ocean: Making Time for Resolution
by Andrew Flake
In the litigation practice, we deal in time. Schedules, deadlines, fees and invoicing -- they are all ways to divide and parcel out a scarce resource. I have an hourglass in my office I received as a...
Cards, Cookies, and the Supreme Court’s Coinbase v. Bielski Opinion: Mandatory Stay Now Required on Appeal of Denied Motion to Compel
by Andrew Flake
Summer is beach season, and when my family travels, we'll usually bring a few decks of cards with us. When my children were younger, that meant we played a lot of "War." You know the game --...
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...
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...
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...