Erin Brokovich

PROBLEM-SOLVING ADVOCACY IN MEDIATIONS: A MODEL OF CLIENT REPRESENTATION

10 Harvard Negotiation Law Review 103 (2005)

Harold Abramson [FNd1]

The Problem: Adversarial Advocacy

…

      The sort of advocacy caricatured in the negotiation session of the movie Erin Brockovich [FN19] has not been uncommon in mediations. Let me describe the sharp exchange of settlement offers in that negotiation. During the rest of this article, this dispute [FN20] will be used as a basis for demonstrating the elements of a formula suitable for representing clients in a problem-solving process.

      Here is the scene and the transcript:

       The judge just dismissed each of the eighty-four motions to strike filed by the defendant and upheld the plaintiffs' causes of action in a lawsuit brought by the residents of Hinkley, who claimed that the defendant Pacific Gas and Electric [PG&E] had polluted their groundwater. The judge directed the defendant's attorneys to “tell your clients they're going to trial.” As a result, the attorneys for both sides agreed to meet at the law office of the plaintiffs' attorney to discuss settling the lawsuit.

      Scene: The Waiting Room.

      Ed Masry, the attorney Erin Brockovich works for, glances at the defendants' attorneys who “ooze importance” and whispers to Ms. Brockovich, “The games are about to begin.” Mr. Masry recruits and dresses up two of his secretaries to look like attorneys.

      Next Scene: The Conference Room.

      The four of them, including Ms. Brockovich, walk into the conference room and sit down.  Across the table, two attorneys representing the defendant are already seated.

      The lead attorney for defendant Pacific Gas and Electric talks first and presents an opening offer:

      SANCHEZ (PG&E lead attorney): . . . Let's be honest here.  Twenty million dollars is more money than these people have ever dreamed of.

      ERIN: Oh, see, now that pisses me off.  First of all -...