PHIL SPECTOR WRONGFUL DEATH CIVIL TRIAL GOES TO MEDIATION

Legal News Analysis

By Blogonaut

Several readers have emailed us asking for our views on news reports that the parties have agreed to mediate the civil wrongful death action filed by Lana Clarkson’s heirs in 2005.

According to news accounts both sides in the civil suit—which seeks money damages on behalf of Lana Clarkson’s heirs on the theory that the music producer caused her death—have agreed to mediate the dispute.

Mediation is a nonbinding form of informal dispute resolution where the parties agree to appear in front of a neutral party (who is either an attorney or a retired judge) who essentially guides formal discussions among the parties and attempts to help the parties reach a settlement agreement of the dispute. It is a nonbinding process, because the matter will not settle unless a mutual agreement is reached on the terms of a settlement that both sides signoff on.

So what are the advantages to the plaintiffs and to Phil Spector in mediating?

1. The litigation is bound to be expensive.

Although a Los Angeles County jury found the music producer guilty of the malice murder of Lana Clarkson last year, that conviction cannot be used or even mentioned in any civil trial unless and until it is affirmed on appeal, and it is looking more and more like the conviction is substantially likely to be reversed.

In addition, according to news reports, if the civil case has not settled by next October, the court will be setting a trial date—meaning that it is unlikely that the appeal will be resolved before the case gets to trial in any event.

Therefore, the same very expensive expert testimony that was presented during the criminal trial would have to be presented during the civil trial on the issue of suicide vs homicide.

2. The result of any civil trial is uncertain for both sides.

The prior alleged “victim” testimony presented to the jury in the criminal case might not be admissible in the civil trial—and without it who knows what the verdict on liability will be?

In addition, wrongful death damages consist of two components: The lost earning potential of the decedent and monetary compensation for the lost care comfort and companionship of the lost loved one to her heirs. The first component in this case is negligible and the second very hard to value. Typically, wrongful death awards without a substantial lost earnings potential are in the hundreds of thousands of dollars and not millions.

But how about punitive damages? While punitive damages are possible, unlike the OJ wrongful death case where you had two victims with their throats cut (in other words an undeniably cold-blooded, intentional and premeditated act) the basis for punitive damages in the civil case here is far from certain.

In addition, since OJ the United States Supreme Court has held that in most cases, a ratio of punitive damages to compensatory damages greater than 1:1 will be overturned as unconstitutional. Therefore, with compensatory damages expected in the hundreds of thousands—and not millions—of dollars, there is little likelihood of a ten million or twenty million award of punitive damages in this case. But unlikely does not mean impossible, and there is great uncertainty for Phil Spector in taking the civil case to trial as well.

General damages, such as for lost care, comfort, and companionship, are largely up to the jury to fill in the blank on the jury form with little guidance from the court, and will rarely be overturned on appeal unless clearly excessive.

3. Unless the case settles, it could take years for Donna Clarkson to see any money.

While the case is expected to go to verdict sometime in 2011, even if the jury awards substantial compensatory and punitive damages to Donna Clarkson, that does not mean Phil Spector has to write her a check.

Assuming that Phil Spector has the financial ability to post a bond in the amount of 1.5 times the judgment, the judgment will be stayed during an appeal process that could last anywhere from a minimum of two years (until 2014) or, if the case goes all of the way to the United States Supreme Court on the issue of punitive damages, many years.

Remember, some of the victims of the Exon Valdez oil spill are just getting their last payment and a full 1/3 of the Exon Valdez plaintiffs died before receiving ten cents of their award—because the case was tied up in the appellate courts for years.

Therefore, it makes a lot of sense for both sides of this civil case to not only mediate their differences, but to work hard at a mutually agreeable settlement.

That does not mean a settlement that will make both sides happy; there is no such thing. Any settlement, by definition, requires true compromise on both sides.

So, dear readers, you now know what we think of the reported mediation in the Phil Spector wrongful death case, what do you think?

All comments (with one notable exception) are welcome.