As a part of the 97% Series of Interviews, I loved this one: Read on about Karina Sterman’s classic move towards a sophisticated business dispute: can you say “lunch”?
The most recent statistics available indicate that 97% of cases that are filed in Superior Court never get to trial. How do they get resolved? This column explores the unique and intuitive ways in which a dozen prominent women litigators have made that happen. The reader may judge for him/herself whether the gender of the handling attorney in any way contributed to the outcome, but my hypothesis is that with so many prominent women in litigation in 2012, there’s a different, perhaps more pragmatic and some may say even “gracious” way of waging war today.
Here you will find some of the most fascinating “war stories” uniquely told by select women who have demonstrated both bravery and sensitivity in addressing their clients’ needs and desires.
MEET KARINA STERMAN, PARTNER, ERVIN COHEN & JESSUP LLP:
Jan: Karina, how long have you been practicing litigation in Los Angeles?
Karina: Since 1997. I started my career in Securities Litigation, but joined Ervin Cohen as an associate in 2000.
Jan: What was the most notable case in which you were able to avoid a trial and still get a great result for your client?
Karina: The most notable is usually the most current. I was the lead counsel on a complicated Intellectual Property case recently, which involved about eight defendants. We were all ordered to a “mandatory mediation” in the beginning of the case but that simply led to a cycle of posturing and each side assuring the other that it was going to prevail. The case had millions of dollars at stake and we left that 1/2-day session further apart in terms of settlement and even more eager to go to trial and win!
Jan: What was the strategy you took to get the matter settled?
Karina: After the initial mediation session, the litigation got really heated. There were numerous depositions, volumes of written documents exchanged, third party subpoenas, the works! At a pivotal moment in all of this, my client realized he just wanted to go back to running his business and finally said to me: “Settle this.” That’s what I was waiting to hear. I immediately called the opposing counsel and told him his clients could either deal with a forthcoming motion for summary judgment or consider coming back to settlement discussions. He informed me then that, unbeknownst to me, our clients had been attempting to discuss settlement throughout the litigation process but had only managed to further polarize each other and completely eradicate any trust between them as a result of increasingly mounting acrimony and bravado. When I heard this, I knew I had to try something different. Before we could even begin to have settlement discussions, we needed to rebuild trust and communication. So, I decided we should all meet in a neutral place and on a purely social basis. I knew these guys had worked together for 11 years. They knew one another’s families and certainly could have a conversation about something other than the lawsuit. So I invited the other side to lunch.
Jan: How did you come up with the idea?
Karina: I try to think creatively and remember that every lawsuit is not just about the dispute but often also about perspectives and emotions. I feel strongly that people in dispute, whether they are my clients or are suing my clients, deserve to have dignity brought back into the process. If you treat people with dignity, and allow them to keep their pride intact, even if you disagree, you are more likely to reach a resolution. I also know that most cases end up settling, so I felt strongly that we needed to preserve that bridge and if the clients had already damaged it, we needed to restore some trust before we could resume any discussion of settling the case.
Jan: Why was it so effective?
Karina: As part of my invitation to lunch, I let the other side pick the location and I assured everyone that I was buying! I also created a set of written “ground rules” that both sides had to agree to as a condition to this lunch. I got input on those from opposing counsel and then we circulated them to our clients and received their commitment to stick with those rules. For example, the rules indicated that there be no posturing, no talking about the merits of the case, no threats. I was told that the only reason the opposing party agreed to attend is that I was going to be there; I learned that they felt I was the only “civilized” attorney at the table.
Jan: What was the turning point that allowed the case to settle and avoid a trial?
Karina: My client thought the lunch was nice but was cynical by this point in the case and they didn’t think it would lead to any progress. I completely disagreed. Thankfully, very soon after the lunch, I received a gracious thank you note from opposing counsel and then an actual settlement demand. Though we were still far apart, this allowed us to begin negotiations and maintain a constructive dialogue. We reached a settlement within the next two weeks. Before that lunch, this was not in the realm of possibility.
Jan: Did you or your clients have any regrets?
Karina: Absolutely not. Although, I do love to try cases—so there is always a little personal disappointment when another case clears off my desk. But that’s the way it should be.
Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?
Karina: Yes! There is always an “aha” moment in a litigation. (Karina gives me a mischievous wink and reminds me that the details are confidential as the case is still on going with the other defendants).
Jan: Do you think that being a woman made a difference to how this case was handled?
Karina: I don’t know, but several people involved in the case, both on our side and on the opposing side, pointed out that I was the only woman in the litigation and that it helped. I’d like to think that it had something to do with the success at the end of the day.
January 9, 2009 There is little question but that negotiation is a sensible and rational approach to managing conflict. At the same time, the agreements often forged by necessity, frequently...By Robert Benjamin