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Are Price Hikes Allowed When There Is a State of Emergency?

The short answer is no. When the President of the United States declares a state of national emergency, Penal Code Section 396 prohibits raising the price of many consumer goods and services by more than 10% after an emergency has been declared. This applies not only to rents but also to goods and services. Penal Code Section 396 applies for 30 days after an emergency and 180 days for reconstruction services and emergency cleanup services. This period can be extended beyond these time frames by the state legislature and local officials. The statute applies to protect the pricing of the following major necessities: rental housing, hotels/motels, food and drink, emergency supplies such as water, flashlights, radios, batteries, candles, blankets, soaps, diapers temporary shelters, tape, toiletries, plywood, nails, hammers and medical supplies, including but not limited to medications. The law applies to neighbor counties as well and applies to all providers of the goods or services unless they can prove that the price increase is due to increased labor or material prices. WHAT SHOULD I DO IF MY LANDLORD INCREASED MY RENT ABOVE 10% AFTER THE NORTHERN CALIFORNIA FIRES? If your landlord increased your rent above 10% in the 30 days after the Northern California Fires were declared a National Emergency (October 16, 2017), then call the offices of Kornblum, Cochran, Erickson & Harbison, LLP. Violation of the price gouging statue are subject to civil enforcement actions including civil penalties of up to $5,000 per violation, injunctive relief and mandatory restitution. In addition to these penalties, if there is a pattern and practice of a particular landlord increasing rents after the emergency, consumers are protected by the Business and Professions Code (Section 17200 et. seq.) as well.

Reference : https://kcehlawsr.com/2019/04/08/are-price-hikes-allowed-when-there-is-a-state-of-emergency/

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Injuries can change your life. Your personal injury attorney needs to understand that and help you through the process to obtain the best trial results or settlement so that you can move forward with your life.

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THE MODERN APPROACH TO RESOLVING DISPUTES – THE CASE FOR MEDIATION

https://kcehlawsr.com/2019/04/08/the-case-for-mediation/The odds of a plaintiff’s lawyer winning in civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a case at trial. Twelve times better. So why does anyone do it? They don’t. They settle. Out of the 780,000, only 12,000 or 1.5 percent ever reach a verdict. The whole idea of lawsuits is to settle, to compel the other side to settle. And you do that by spending more money than you should, which forces them to spend more money than they should, and whoever comes to their senses first loses. Trials are a corruption of the entire process and only fools who have something to prove end up ensnared in them. Now when I say prove, I don’t mean about the case. I mean about themselves.” Lawyer Jan Schlictman, played by John Travolta, in the movie “A Civil Action.”

Anyone who has been involved in a lawsuit as a dispute resolution mechanism knows what a laborious and often mysterious process it can be. But the process is changing. The public is demanding a use rfriendly system that encourages litigants to enter into early discussions about resolution of their dispute and avoid the time, expense and emotional drain of protracted litigation.

It is incumbent upon us as client representatives to promote mediation as a desired alternative to trial, i.e. mediation instead of trial. We need to educate our clients about how this process works and show that there are advantages in this approach to dispute resolution.

The approach to handling a client’s cause and managing litigation has changed. Efforts are in process to develop a more cooperative approach to litigation, particularly during discovery. The  Sedona Conference Cooperation Proclamation represents “a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action.”

The public has become intolerant of the notion of the trial lawyer as a “warrior” or “combatant.” Lawyers who work in litigation as problem solvers who can penetrate the process and assist in resolving a dispute, not perpetuating it , are what the public wants.

A settlement is the best economic day for a client, considering the present value of money, and the cost of taking a case into the pretrial and trial states (and possibly through appeal); the client has the use of funds now rather than the hope of some recovery later. The costs of litigation often surprise clients, particularly if expert testimony from physicians or technical experts is needed. The fees for these experts are quite high, usually involving several hundred dollars per hour. Considering the amount of time that experts need to prepare, testify at deposition and then appear in court, several thousands of dollars can be incurred quickly by just this aspect of the case.

In my view, settlement is the ultimate victory. It takes the decision making away from a third-party – a judge or jury – and puts it in the hands of the parties. Settlement results only from consent, so a case is settled when the parties have retained control over the outcome and have carved out a result for themselves. It does not happen unless there is agreement.

Studies have shown that the parties to a dispute risk more by going to trial if they walk away from a reasonable opportunity to settle. In of hundreds of cases in which negotiations have been conducted but the parties have not settled the results reveal a party who rejected settlement often does worse at trial.

Mediation has resolution of a dispute as its objective. The parties in a mediation know they have come to resolve their differences. The intermediary or neutral – the mediator – has the sole job of accomplishing that goal. It is a dedicated forum for closure. Over the last several years, mediation has become the more popular means of resolving disputes. Mediation is available to litigants to achieve settlement. It is often overlooked by lawyers in the beginning stages of litigation, when mediation can lead to an early— and appropriate— settlement. This is a big mistake, as it is at this early stage of litigation that the “best deal” can be achieved before the expense of protracted litigation.

Private mediation is a “supervised negotiation” away from the courthouse, with a trained and experienced mediator who has the skills of getting parties to talk and exchange views in an attempt to resolve their differences. This is in contrast to an arbitration in which the arbitrator actually decides the case. Our clients often do not understand the difference and it is our job to educate them on the mediation alternative to trial.

For example, the client must understand that: • In mediation, the mediator guides the parties through the negotiation process so that any resolution comes because the parties agree. • The mediator is not a decision maker, but a facilitator. • The mediator is chosen by agreement only; a party cannot be forced to accept a mediator of a dispute. • Mediators work in all aspects of litigation: complex civil cases, personal injury, professional negligence, complex insurance disputes and family law matters, particularly divorces and custody matters. • A mediation is voluntary and is not binding. A settlement is reached only if the parties agree. • A mediation can last from a few hours to several days (not necessarily in succession). Often the parties exchange “briefs” on their position before the mediation. • Most important to note is that a mediation is confidential. By law, what takes place during a mediation cannot be used in the lawsuit as evidence. A trial court or jury does not hear about anything that was discussed during the mediation, nor is the subject of the parties’ respective positions at a mediation a proper subject of testimony at trial.

My experience is that the mediation process works well if certain conditions are met. First, the parties must be prepared to mediate. They must know their case well and have discussed their position with their lawyer and set some realistic goals for settlement discussions. Second, the parties must go to the mediation with a good faith desire to resolve the case. Third, a mediator must be chosen who is the right person for the case – someone whose approach to mediation fits the type of case and the parties involved. For example, if the case is volatile, then someone with a low-key style, using diplomacy more than persuasion, may be the right choice. On the other hand, if the parties are at odds, it may take someone with stature (such as a retired judge of some preeminence) to bring the parties together. And fourth, the mediator must be willing to work, to roll up the sleeves and stay the course until all settlement alternatives are explored. The basic rule is to keep the parties talking. So long as the parties are willing to communicate, there is a chance for a negotiated resolution.

As time goes by, our judicial system will rely more and more on courts and counsel directing litigants to a mediation alternative to litigation. The earlier the better.

Reference-https://kcehlawsr.com/2019/04/08/the-case-for-mediation/

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The First Shot Over the Bow

“Or what king, going out to wage war against another kind, will not sit down first and consider whether he is able with ten thousand to oppose the one who comes against him with twenty thousand? If he cannot, then, while the other is still far away, he sends a delegation and asks for the terms of peace.” Luke 14:25-33

Assessing when and how to approach your adversary about mediating a claim presents a challenge to any of us representing a client in litigation. Even more challenging, I find, is determining what the initial demand should be. As a lawyer frequently representing the plaintiff in litigation, I feel the responsibility to not only provide the opposition with a clear statement of my client’s case but also one that justifies considering settlement. You have to start someplace, and it is customary for me – as is usually the case – for the plaintiff to make the first bid – the initial demand for settlement. I also customarily submit that number in an initial demand package, or if negotiations are focused on a mediation, in the mediation statement which I submit at least two weeks – and sometimes earlier – before the mediation takes place.

The question is what should that number be?

Let’s talk strategy and let’s also talk about how the client views the numbers. First of all, I certainly avoid giving the client a bottom line number before the mediation or even at the mediation — or a number which I recommend be the “bottom line” for settlement. Negotiations can change the view about a case. That certainly is true about a mediation. Much can be learned during the day about the case which can change its value.

My San Francisco Bar colleague, Michael Carbone, a full time mediator who writes regularly on the topic of mediation, says this about concocting settlement demands and strategies: “Clients are often fixated on what the bottom line should be. This approach is understandable, but should nevertheless be discouraged. A demand number, a target (or ‘wish’) number, and a walkaway number can all be discussed with clients, but with the caveat that one or more of these numbers may need to change during the course of the mediation.” (M. Carbone, “Resolving It,” Vo.l 1, No. 10, October 2010.)

So you have to remain flexible regarding the numbers during the mediation.

But back to the initial demand. If it is too high, it invites resistance to negotiations by the opposition. If it is too low, then, of course, you are essentially bargaining below where you should be to drive the case value to an acceptable settlement point. The initial demand has to leave room for negotiation. We all know it is to get the process started, and is not the number that is expected to be the final settlement number. Similarly, the defense is not expected to put its “last, best and final” number on the table in its first offer.

Here are some thoughts on how to structure that first shot.

• What are the economics of the case? Have you presented a strong case and support for the damages to be claimed at trial? Are there soft spots? • How does the opposition negotiate? Are they hardnosed or cooperative? Will they listen to the mediator? Is every first demand from a plaintiff considered unreasonable, or are they likely to respond to an invitation to bargain? • Does your case have aggravated liability facts which adds potential to the outcome? • Do you need lots of negotiating room? • Is there an expectation that the plaintiff will show considerable movement during the negotiations? • Who is the mediator and what his the approach likely to be taken by the neutral? No matter what the initial demand and offer, will the mediator work to get the parties into the “field of play” (aka: the reasonable negotiating range)?

In determining that first demand, first look at the hard economic damages which are likely to be viewed as clearly related to the wrongdoing. Second, if there are soft numbers in addition, which may be questionable or have less evidentiary support, they still should be cranked into the demand to provide negotiating room. Third, in a personal injury case, the claims for future medical expenses, and also impairment to earning capacity should be quantified and supported. Fourth, you have to obviously evaluate the potential for general damages, past and future..

Often I have jury verdicts research done to try to find comparable cases with verdicts that can serve as a basis for evaluation. Once I pencil out these numbers, I then place a value on the case using a range of a low result, mid result and very good result. After that I decide what additional sum I need to add to this number to negotiate given the factors outlined above. Maybe I need to add 30-50% to give me negotiating room, possibly even more if I think the other side is going to expect more give than take on the plaintiff’s side.

I also need to dispel the notion that the settlement number is mid point between the initial demand and $0, which sometimes suspect is the perception of the defense. That is rarely the situation from my perspective.

The point is that the first demand must have a rational basis in light of the potential damages claims, so outlining those claims first is critical. They have to appear solid, and not unreasonable or if potentially unreasonable, perhaps just above the line of reasonableness.

The defense will likely advise the mediator that the initial demand as way too high in any event (of course it is high, but it is designed to start the bargaining process), so giving yourself some room to come down without compromising your ability to negotiate is important. Remember, you can always go down, but not up! So, if you going to err, be it an err that is high, not low!

Until next time, GOOD MEDIATING. . . .

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Call Now on (707) 544-9006 for Best Personal Injury Attorney if you have injured in an accident.  for more information visit on kcehlawsr.com

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