Mediation and Arbitration
Judge Duffey prepares for mediation using a tested preparation process. Parties first submit to him key documents in the case, such as agreements underlying the dispute, pleadings, briefs, and court orders. Next, he requires confidential mediation statements specifying the information he needs to understand the case and the status of the dispute. Armed with this information and his understanding of the dispute he conducts thorough confidential telephone conferences with each party before the mediation session. The mediation session is tailored to the dispute in each case to put into place the most effective way to promote a settlement dialogue. Judge Duffey is tenacious and if the parties agree he continues the mediation process even if a settlement is not reached at the session. Over 40% of his successful mediations are concluded with a resolution in the days following the session.
Judge Duffey brings the same discipline to the arbitration process, whether he serves as a single arbitrator or on a panel. He structures the preparation process, requiring the parties to provide information to understand the dispute. He conducts arbitration hearings efficiently and cost-effectively but without constraining the parties’ opportunity to present their case.
The watchwords for Judge Duffey’s approach to these ADR processes are fairness and efficiency but founded on trust in Judge Duffey’s administration of the ADR process and his commitment to fairness in it.
Litigation Strategy and Evaluation
At the beginning of any case claims are alleged and defenses asserted. Then discovery is conducted, motions to dismiss may be filed, procedural disputes resolved. Dispositive motions then ordinarily are filed and, if unsuccessful, a pretrial order is prepared and a trial date set. Each of these stages and events may, and likely do, impact the case. Lawyers and their clients are required to constantly evaluate their litigation positions as a case progresses. New or different strategies may need to be considered, new investigations conducted, new witnesses identified or experts retained. If dispositive motions are filed litigation counsel must decide what to say in their submissions based on what arguments are likely to convince a judge. If a trial is required, a decision must be made on how to decide what witnesses to present, on what evidence to focus and what will persuade the trier of fact. Litigator experience varies. Some are seasoned advocates, others have limited litigation experience. Few lawyers, however, have experience evaluating the work product of lawyers and few have real access to the thought process of judges and juries deciding specific issues in a case, or the case as a whole. Only judges have that experience and it offers a unique lens through which to look at trial evidence and arguments to decide the best approach to trial presentations to factfinders.
Judge Duffey has consulted with lawyers and their clients to share his insights and perspective about the claims, defenses and facts in cases. He does not replace the judgment of trial counsel, he enhances it because he is able to evaluate how a motion will be received by a court and how a jury may view the issues and evidence in the case. He does not offer a substitute for the judgment of trial counsel. He adds value to it. He does that in several different roles:
By delving into the claims and facts in a case, Judge Duffey can provide his opinion on what claims to assert, what facts to allege, how to argue a motion, what kind of expert to select, what witnesses to present, how to interact with the government in an investigation, all informed by his experience in public service, his personal trial experience, what he has seen over the years sitting on the bench and spending hours with jurors after trial. He does not serve as trial counsel in the case. His work is behind the scenes.
Lawyers sometimes need an independent outside source to review their work, their evaluation of the case, and the opinions and strategies they plan to communicate to their clients. This is not because they lack confidence in their conclusions, but because they want to provide superior service to a client and know an experienced, seasoned judge has a unique litigation and trial perspective can make sure they have not missed or misinterpreted the law or the facts in a case.
Judicial Moot Courts
A party and their lawyer may want to test their presentations, advocacy, or interpretation of cases by presenting to a former judge or judges abbreviated fact presentations and arguments in a moot hearing format. This process allows the party to get input about how to structure or argue a point, how a judge will receive an argument, or whether a judge or jury will interpret the facts the same way as the parties. Or, a party or its litigation counsel may want judges to view the testimony of a witness for their opinion of its credibility or how a jury might evaluate it.
Discovery dispute resolution
Parties sometimes simply cannot agree on what is or is not discoverable. Asking a former judge to perform this function is an expedient, and cost efficient way to avoid the delay caused by filing discovery dispute motions. In short, judges are pleased to help lawyers and their clients evaluate or hone their cases. How that is done can take many forms, not just those described above. It is work for which Judge Duffey is uniquely suited and qualified.
Judge Duffey has a deep interest in the culture of the legal profession and professionalism in practice. He has published two books on these subjects, The Significant Lawyer: The Pursuit of Purpose and Professionalism (2022) and A Life in the Law: Advice for Young Lawyers (2009). He is a frequent presenter on these topics at law firms, for corporate legal departments, bar associations, and at legal conferences. Bar associations qualify his presentations for CLE credit and The Significant Lawyer is the course document for his courses. He does not charge a speaking fee but does charge for out-of-pocket travel expenses.