Re: NAF Conflicts of Interests

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On 10/25/07, Gary Ricin wrote:
> That's interesting. I knew that some states gave judges the
> option or requiring pre-trial ADR, but I didn't realize that
> some states required it as a matter of course.

Here is the Arbitration Rule with commentary: (It is a court rule
and not a statute)

Rule 25. THE PREVAILING PARTY IN THE TRIAL DE NOVO; COSTS.
(A) The "Prevailing Party" in a trial de novo is the party
who (1) appealed and improved upon the arbitration award by 30%
or more, or (2) did not appeal and the appealing party failed to
improve upon the arbitration award by 30% or more. For the
purpose of this rule, "improve" or "improved" means to increase
the award for a plaintiff or to decrease the award for the
defendant.
(B) The "Prevailing Party" under these rules, as defined
above, is deemed the prevailing party under any statute or rule
of court. As such, the prevailing party is entitled to costs of
trial and all other remedies as provided by law, unless the Court
otherwise directs.

COMMENTARY:
The July 1, 1999 amendment makes clear that the allowance
of costs to the prevailing party is not mandatory. The amendment
is intended to vest the trial court with discretion in awarding
taxable costs to avoid inequitable results. In weighing the
equities, the trial court may consider factors such as the nature
of the case, the conduct of the parties throughout the
litigation, including arbitration proceedings, the amount and
timing of settlement offers made by the parties, the amount of
the judgment, and other relevant factors.

For example, when a defendant appeals an Arbitration Award
and the plaintiff obtains a judgment which is 30% less than the
award, based on the circumstances and equities of the case, the
court may award taxable costs to the plaintiff although the
defendant would be considered the "prevailing party" under
Section (A).

As another example, when a plaintiff appeals a "zero"
Arbitration Award and obtains a "nominal" or "insignificant"
judgment, based on the circumstances and equities of the case,
the court may award taxable costs to the defendant although the
plaintiff would be considered the "prevailing party" under
Section (A). Whether a judgment is "nominal" or "insignificant"
is left to the sound discretion of the court.