By Paul M. Mahoney
Posted: 08/04/2011 06:23:06 PM PDT

I live in Los Angeles County and am not involved as a participant in any way in the Colonies litigation.

This is in response to your editorial “Appalling portrait of leadership,” July 27. Usually, the newspaper maintains high journalistic integrity, but that editorial did not measure up. It is almost as if the newspaper, with that editorial and prior expos type articles about the Colonies settlement, is attempting to convict the defendants before there has been a trial.

You continuously refuse to acknowledge that the plaintiffs’ demand to settle was $300 million and just assume the $102 million settlement was a wasteful gift of public funds. Had no settlement been reached and had a jury awarded $200 million, would you have written the same editorial criticizing the San Bernardino County supervisors for not attempting to settle the case for less than the jury awarded?

There is an interesting legal issue that I have not seen discussed in your articles but that bears on the case. Under California law, what goes on in a mediation is confidential. This case, as I understand it, was mediated by a retired California Supreme Court justice. That justice was a person of high integrity and, to my knowledge, there has never been any hint that he thought the “fix was in.” On the other hand, because of confidentiality of mediations, the current state of the law may very well prohibit him from testifying at the criminal trial as to his perception of the settlement process.

Most of the litigation in this area deals with trying to compel waivers of the mediation privilege in a civil context. However, now where a person’s freedom is at stake, you can be sure that the prosecution will argue that the mediation privilege prohibits the mediator from testifying as to the good faith nature of the mediation process even if such evidence could support the claim that no criminal conduct occurred.

Assertions that the mediator was forced on the county are wrong. Under California law, a person cannot be forced to accept a particular mediator. Also, a mediator cannot force a party to do anything.

Also, the allegation that the high-priced downtown Los Angeles law firms walked away from the case because of a disagreement with the settlement amount is speculative. Those firms stood to benefit substantially had a settlement not been reached and the case had gone to trial. I would urge you to publish an article as to how much Jones Day and Munger Tolles charged the county on these cases prior to their withdrawing. They had an economic conflict of interest and their withdrawal shows nothing other than they were not going to collect any more fees. Those firms had been unsuccessful prior to the settlement and could not guarantee that if there was no settlement, the result in front of a jury could have been less than the settlement.

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