Outside Counsel

I'm late in getting to it, but back in June The New York Court of Appeals held, in Reynolds v. Amchem Products(pdf file) that when a High-Low agreement is made between the plaintiff and a party who remains in the action, the defendants who are not a party to the agreement must be advised of both the agreement and its terms. I've been on the wrong end of this sort of thing, and I don't think the decision goes far enough, frankly. The opinion, by Judge Pigott, applies only in circumstances when the agreeing defendant remains a party, not to circumstances where the agreeing party is carved out of the action by way of an agreement to arbitrate, or some similar arrangement.

I am coming to think that, on the civil side at least, there are a lot of exclusionary rules that should be rethought. Insurance, for example. Time was, if you were picking a jury and the word was even mentioned-- outside of the Judiciary Law permitted question about a prospective juror or family member being employed by or a shareholder in any company that issues casualty insurance-- was grounds for a mistrial. People got mistrials if insurance was inadvertently mentioned during the proof. Things have loosened up somewhat, but not to the extent that they should-- juries believe that there is insurance out there, and, I would submit, act accordingly. Why not inform them instead? If nothing else, it would allow a jury to act according to what exists or doesn't exist, rather than on assumptions that remain unexpressed. It probably makes a lot of sense to relax the hearsay rules, too. People are sophisticated enough to parse this sort of thing out, I think. Arbitrators are, so why wouldn't lay people be?