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Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Price v. Clark, 147 P.3d 1096 (Kan. Ct. App. 2006).

This case addresses the following issue:

Is it reversible error to allow a defendant to use information originally learned in a bad-faith mediation?

This case asks an interesting question which the courts may have to revisit one day because of the numerous briefing errors made by the appealing party. Id. at 1096. The court, so far as it reached the merits of the argument, agreed with the trial court that sanctions for bad-faith mediation were the only remedy available to punish a defendant; the court would not bar evidence that was legitimately obtained, even though the existence of this evidence was discovered via participation in a bad-faith mediation. Id. Thus, use of such evidence did not warrant a new trial for the Plaintiffs. Id.

The facts of this case are difficult to ascertain from the very short and limited opinion. The matter arises from severe property damaged caused by a motor vehicle accident. Id. A friend of the Plaintiffs’ daughter was driving a vehicle owned by the Plaintiffs. Id. The vehicle was struck by Defendant while it was attempting to make a left-hand turn at an intersection. Id. Conflicting reports emerged as to whether the Defendant had a green light or not, which was ultimately the crux of this case. Id.

Prior to trial, the two sides attempted mediation twice. Each time, the defendant refused to negotiate in good-faith. At the first mediation, no adjuster or other authority with the ability to accept or make an offer of settlement attended on behalf of the Defendant, nor were they available via phone. The trial court ordered a second mediation and ordered that an adjuster appear in person. Defendant complied by having an adjuster—and only an adjuster, no attorney—attend the mediation. The adjuster was open about her lack of authority to settle the case for any amount. This lead to additional sanctions by the trial court. Ultimately, the Defendant had to pay the costs of each mediation and attorney’s fees for Plaintiffs’ counsel.

However, at the mediation, the Defendant learned about additional pieces of evidence the Plaintiffs had in their possession. Id. This lead to the Defendant seeking out this evidence through legitimate discovery means. Id. The Defendant ultimate came to possess this evidence and was allowed to use the evidence over a Motion in Limine filed by the Plaintiffs. Id. Plaintiffs ultimately lost at trial, and requested a new trial based in part on the use of this evidence. Id. The trial court denied the motion and the Plaintiffs appealed pro se—without an attorney. Id.

The court began by noting that the briefs filed by the Plaintiffs were improper and failed to comply with several rules of appellate procedure. Id. Despite this, the court attempted to ascertain the Plaintiffs’ arguments, as best it could. Id. The court did not find that the use of the evidence, obtained using legitimate, fair discovery processes, warranted reversal of the jury’s verdict. Id. The court agreed with the decision of the trial court, which noted: “[Plaintiffs] also ask the Court to sanction defendant’s counsel for not complying with Court orders [to mediate]. The Court, in fact, has already sanctioned defendant in this case for not making a good-faith effort at Court-mandated negotiations and ordered the defendant to pay for outside mediation.” The Court of Appeals agreed, noting the sanctions but finding “this is not sufficient to require a new trial to be granted.” Id.

Perhaps a brief that complied with all applicable rules, including specifically citing to which evidence was challenged and explaining why the ruling was wrong, could have produced a different result; but for now, this case serves as a reminder to parties that good-faith is required in negotiations and following the rules of appellate procedure is a must.

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