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The Florida Bar Journal
February, 2018 Volume 92, No. 2
Books

Page 63


Scalia Speaks: Reflections on Law, Faith, and Life Well Lived
Edited by Christopher J. Scalia and Edward Whelan
Reviewed by Mark Miller
When we remember Justice Antonin Scalia — or most any Supreme Court justice, living or dead — what we recall usually revolves around what the justice wrote in an important majority opinion or memorable dissent. Christopher J. Scalia, Scalia’s eighth of nine children, and Edward Whelan, attorney and former Scalia law clerk, expand our understanding of Justice Scalia beyond the law reports by giving us Scalia Speaks: Reflections on Law, Faith, and Life Well Lived. The work, a collection of the late justice’s memorable speeches, provides a thoughtful glimpse into what Scalia believed made a life well-lived.

The editors organize the speeches into six sections: the American people and ethnicity; living and learning; faith; law; virtue and the public good; and heroes and friends. Too many themes run through the speeches to list them all here, but his belief that friendship should cross party lines comes up again and again. To make that point, Scalia shares an anecdote about President William Howard Taft, who also served as chief justice of the Supreme Court. Taft, who Scalia held in high regard, always greeted his opponents, like labor leader Samuel Gompers, with a broad smile and warm handshake. Scalia notes “[h]ow much better that is than calling [one’s political opponent]…a reptilian bastard.” Scalia’s close relationship with Justice Ruth Bader Ginsburg (who graciously penned the foreword for this work) demonstrates that Scalia did not just pay lip service to this idea. As he put it: “I attack ideas. I don’t attack people.”

In his introduction to the collection, Christopher shares one of his father’s favorite ways of describing the “living Constitution” approach to judging. Justice Scalia, of course, rejected that interpretive method in favor of “originalism” or “textualism.” Scalia would recall an old commercial for Prego sauce and analogize it to the constitutional interpretation method he found abhorrent. It went like this:

The husband in this ad asks his wife, “Are you gonna use this store-bought sauce? Aren’t you gonna make it yourself? Does it have oregano in it?”

“It’s in there!”

“Yeah, but does it have pepper?”

“It’s in there!”

“Does it have olive oil?”

“It’s in there!”

“What about basil?”

“It’s in there!”

We got that kind of a Constitution now. You want a right to an abortion? It’s in there! You want a right to die? It’s in there. Whatever is good and true and beautiful, it’s in there! Never mind the text, it’s irrelevant.

That Prego commercial applies well to this collection. Are you a lawyer or judge hoping for insight into Scalia’s approach to interpretation of the law? It’s in there! Are you a public figure called upon to give speeches and wanting to see how it’s done right? It’s in there! Or are you a reader looking for the reflections of a fellow American on character, integrity, and what it means to be alive, all told with wit and an uncommon understanding of the human condition?

It’s in there.

Scalia Speaks: Reflections on Law, Faith, and Life Well Lived is published by Crown Forum and is available at Amazon and wherever books are sold.


Mark Miller, a board-certified appellate specialist, is a senior attorney with Pacific Legal Foundation and manages PLF’s office in Palm Beach Gardens.



Financial Services Mediation
By Layn R. Phillips, Pierre M. Gentin, Jill R. Sperber, and Lindsay R. Goldstein
Reviewed by Carl H. Perdue
More sophisticated and specialized than other references, Practising Law Institute’s Financial Services Mediation Answer Book (2017 edition), in question and answer format, comprehensively guides litigators (both plaintiff and defense) and mediators alike through elements of high-stakes commercial mediation.

The Answer Book includes procedural matters like “laying the (strategic) groundwork,” effective preparation, document submissions, and presentations, mediator selection, mediation advocacy, and steps toward “closing the deal.” Additionally, focus chapters on mediation issues relating to auditors, insurance and mediation, and recurring legal issues in the mediation of financial institution disputes provide a wealth of timely information on these subjects.

Thoughtful and critical attention is given to procedural and substantive issues related to class actions, multi-party and multi-district litigation, institutional and individual parties, and loss causation and damages issues, confidentiality rules, and disclosure of insurance policies and coverage issues. These and other technical subjects are very deftly handled and explored by sophisticated professionals. A 49-page appendix provides practical guidance from 12 leading mediators; all with substantial experience handling multimillion dollar financial services and other high-value commercial disputes.

Trial counsel may disagree, but many are ill-suited for mediation. Some litigators often view the process as no different than informal negotiations or only as another form of discovery. Others, just another hurdle before the real contest — a jury or bench trial.

As the editors point out, missteps on the plaintiff’s side abound: “(a) starting with too high a demand; (b) arguing the case in a way that potentially excludes insurance coverage; and (c) allowing internal conflicts among different plaintiff firms to dominate negotiations.” On the defense side: “(a) failing to analyze the litigation exposure and costs along with the cost to the business’ or individuals’ integrity; (b) aggressive motion practice predictions; and insufficient candor with the insurance carriers and/or individual defendants.”

The mediation process requires trial counsel to balance zealous advocacy with realism; a realism conducive to creative business problem-solving. We are told that “the most successful counsel are those who are prepared, flexible, open-minded, non-defensive, and patient” and that “the biggest mistake…common to both sides [is] to come to the mediation without a plan other than to accept the other’s capitulation.” Successful commercial and financial mediation may be best characterized as a principles-based rather than a rules-based process, requiring a skill-set more appropriate to what is a nuanced negotiation environment.

Whether in the financial services or commercial context, the editors succinctly point out that mediation “should be recognized by principals and counsel alike as a critical opportunity both to evaluate litigant’s claims and defenses and to craft a creative and tailored result that is often superior to a fully litigated outcome. Unlike informal settlement negotiations among parties and/or counsel, a formal mediation with a skilled [n]eutral offers a confidential, structured environment to discuss [comprehensively and in depth] factual, legal, timing[,] and emotional factors, and to explore a range of business resolutions without jeopardizing litigation strategies.”

An excellent professional and comprehensive resource for finance counsel, parties, and mediators alike, PLI’s Financial Services Mediation Answer Book is a solid, thought-provoking, and valuable resource for all practitioners engaged in negotiating and resolving high-value, complex commercial disputes.

Carl H. Perdue is a member of The Florida Bar.

[Revised: 01-25-2018]