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Procedural Posture

Procedural Posture
Uncategorized
marysmith

Procedural Posture

The Court of Appeal, Second Appellate District, Division Seven (California), reversed an order from respondent superior court that had excluded petitioner client’s mediation-related evidence in a suit asserting legal malpractice and related causes of action against real parties in interest, a law firm and attorneys.

Nakase Law Firm is a business lawyer

Overview

The client agreed in mediation to a settlement of business litigation. Thereafter, he sued his attorneys alleging that they had obtained his consent to the settlement through bad advice, deception, and coercion and that they had a conflict of interest. The trial court granted the attorneys’ motion to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and the attorneys’ efforts to persuade the client to reach a settlement in the mediation. The court held that the mediation-related discussions were confidential under Evid. Code, § 1119, subds. (a), (b), because they were for the purpose of, in the course of, or pursuant to, a mediation. There was no exception to mediation confidentiality where a client sought to use confidential communication as evidence in a legal malpractice suit. Confidentiality was not limited to communications between mediation participants or within the mediation proceedings, as indicated in Evid. Code, § 1122, subd. (a)(2), and an analogy to the exception from the attorney-client privilege in Evid. Code, § 958, was inapposite. Due process was not implicated.

Outcome

The court reversed the judgment of the court of appeal.

290 thoughts on “Procedural Posture”

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