Practice Areas & Industries: Beirne, Maynard & Parsons, L.L.P.

Practice/Industry Group Overview

Our law firm is one of the largest litigation-only law firms in the United States. Each of our lawyers specializes in the various arts of advocacy and regularly practice throughout the state and federal courts, administrative agencies, and private tribunals. Our lawyers are specially trained in the unique procedural, evidentiary, and other tribunal rules controlling the parties litigating within these forums.

Increasingly, our lawyers are being retained to litigate a wide range of disputes in forums other than the courtroom. This trend is largely influenced by contractual agreements whereby parties have committed to an alternative forum, but is also influenced by the desire to maximize cost and time efficiencies as well as to pursue more predictable results. We have found that these objectives are obtainable, especially if the alternative approach is carefully selected to meet the needs of the dispute in question, and the attorneys carefully plan and execute the case workup and presentation. Regardless of the forum, however, the lawyers' inexperience or failure to adequately prepare the case or the client will result in excessive expenditures of time and money, and unacceptable results on the merits. ADR is not a cure all; it is another tool for the savvy litigator to use, depending upon his level of experience and sophistication. Our attorneys have extensive experience in all forms of ADR.

In recognition of this fact, our lawyers are frequently asked to provide pre-dispute advice that not only addresses the merits of the case, but carefully scrutinizes the options available for dispute resolution, amicable or otherwise. Our pre-dispute assessment anticipates commitments of time, money, and other resources needed under each available option, other non-monetary costs (e.g., goodwill, public relations, managerial distraction, etc.), the range and relative likelihood of possible results, and the potential response of other parties, including but not always limited to the anticipated opponent. Our experience has shown that the best option is sometimes to take no action, i.e., some battles are better left un-fought. In the event we are retained to pursue the dispute, however, our clients enter the battle with eyes wide open, ready to recognize and seize opportunities when they arise. In emphasizing a broad-based review and analysis at such an early stage, we dramatically increase the efficiency and effectiveness of our case preparation and presentation, and are better able to focus on achieving a pre-trial resolution to the client's advantage.

Our lawyers regularly participate in numerous forms of ADR. We have found that each form has unique advantages and disadvantages, and particular handling and preparation requirements. Woe to the advocate who enters any one forum believing he can handle his case as he would in any other forum. The age of the generalist is gone; tailored and specialized handling is required to ensure the best results in today's litigation environment. Some of the alternative approaches used by our lawyers are listed below:

Arbitration

This is a general term describing an alternative resolution process that comes in many similar but functionally different forms. A sampling of these forms includes the following:

• Baseball Arbitration: In this form of arbitration, the plaintiff and the defendant each separately submit a "final offer" to the arbitrator. The arbitrator chooses between the offer or the demand presented based upon the arguments heard. It is called "baseball arbitration" because it was long used to resolve disputes between baseball players and teams.
• Bracketed or High-Low Arbitration: An arbitration proceeding whereby the parties agree to "bracket," or limit the possible range of damage awards. The plaintiff agrees to accept not less and the defendant agrees to pay not more than agreed-upon sums. If the arbitrator's demand award falls within the agreed-upon sums, the arbitrator's decision is binding. If the arbitrator's decision is higher than the ceiling or lower than the floor agreed to by the parties, damages are limited or increased respectively in accordance with the agreed-upon bracket.
• Med-Arb Combination/Sequence: The parties agree to mediate their dispute and, if unable to settle, they participate in binding arbitration using the same neutral.
• Single or Multi-Panel Arbitration: Most multi-arbitrator panels consist of three arbitrators. While all three can be "neutral," the parties often agree to allow one party arbitrator for each party, plus one neutral who serves as the chief arbitrator.

Arbitration forums in which our attorneys have appeared include the American Arbitration Association (AAA), International Chamber of Commerce (ICC), and the CPR Institute, as well as specialized venues such as the Society of Marine Arbitrators (including proceedings in London, New York, and Houston), the Municipal Securities Rule-making Board (MSRB), and a tribunal of the World Bank. We have particular strength in international arbitration, which is often the best dispute resolution method for cross-border controversies.

Mediation

This term is over-used and under-appreciated. While there are regional differences in the application and understanding of "mediation," it is generally accepted as a voluntary non-binding process wherein a neutral mediator seeks to facilitate an amicable resolution. More varied and, depending upon the dispute and relationship between the parties, appropriate variations are available, such as the Med-Arb process discussed earlier, Evaluative Mediation, Expert Mediation, and others. The advocate must be aware of and comfortable with each of these options to adequately advise the client of the approach most appropriate to the particular dispute and parties.

• Discovery Master: This neutral third party assists with disputes that are legally or administratively complex. The Discovery Master or Special Master (another term) assists in designing case settlement options and may mediate specific issues in a case or group of cases. Masters may be court-appointed or selected by the parties.
• Mini-Trial: A highly structured, formalized, and evaluative mediation process in which the parties cede a great deal of procedural control in order to reframe the dispute from the context of litigation to the context of a business problem. It requires the participation of non-legal party representatives with settlement authority who sit as a panel with the neutral.
• Neutral Evaluation: A non-binding process in which the parties to a dispute retain a neutral to provide an evaluation based solely on the merits of the case.
• Neutral Fact-Finding: Used to help resolve a disputed technical issue, this may be a stand-alone, non-binding process, or it can be part of a larger, non-binding process.
• Private Judge: A private trial conducted by a former judge and is most similar to a conventional trial in that judgment may be appealed for errors of law or as against the weight of the evidence.
• Summary Jury Trial: A highly structured, formalized, and evaluative mediative process in which a private "jury" is assembled to hear the case. The jury decision is non-binding, and mediation proceedings typically follow.

Many of these approaches can be and often are combined, and new approaches designed which borrow elements from existing procedures. Each approach presents the advocate and his client with procedural, evidentiary, control, timing, and cost advantages and disadvantages. Each also provides its own options for controlling risks and predicting outcomes. Accordingly, it is imperative that the law firm be aware of each option and have the institutional experience to take advantage of the procedure chosen.

Representative Cases Handled in Alternative Dispute Resolution

Much of our ADR work has been for international energy clients, but the following examples also highlight our experience in proceedings affecting a number of other industries. Sample significant cases recently resolved through ADR include the following:

• Represented a broker and broker-dealer in NASD arbitration against loss claims brought by a group of high net worth businessmen and their related companies.
• We defended an oil and gas client in a dispute involving a failed purchase of offshore gas leases and infrastructure. The seller sued our client for gross negligence and fraudulent misrepresentations, seeking damages and fees. We countered with the argument that the seller breached its duty of good faith in the purchase and sale agreement, and also failed to satisfy conditions precedent. We also contested the methodology and other assumptions contained within the seller's damages model. Construction of both Texas and Louisiana law was at issue in the lengthy arbitration hearing and deliberation.
• We represented a major oil & gas company in a dispute involving an offshore gas gathering system formed by three major oil and gas companies. A separate corporation was formed by the three companies for the purpose of transporting offshore gas production to shore-based processing facilities. Our client, one of the three partnering companies to the system, claimed damages to the gas gathering entity resulting from a third party's wrongful release of offshore leases which had been dedicated to the gathering system. The wrongful release resulted in significant monetary damages resulting from the loss of paying volumes which would have otherwise been transported through the gathering system. Our firm was retained to represent the interest of the gas gathering corporation to bring claims against the third party. We initiated action in federal court seeking to compel arbitration on arbitrable claims while pursuing trial court litigation on additional claims.
• We represented an electric power cooperative serving one million Texas customers before an American Arbitration Association (AAA) panel in Dallas in connection with its claims relating to breach of a long-term power purchase agreement.
• We represented a biotechnology company litigating against two major pharmaceutical companies over a new line of multi-billion dollar drugs. Two arbitrations were required, in Washington, D.C. and San Francisco. The issue was whether the biotechnology company had the right to develop the drugs itself, or if a consortium of all three companies shared the right. A second issue was the compensation due the biotechnology company if it did not have the right to develop the drugs itself. The arbitrations were held under the American Arbitration Association, International Center for Dispute Resolution.
• We served as lead counsel representing the Republic of Estonia and the Central Bank of Estonia before an arbitration tribunal of the World Bank. The tribunal was composed of judges from Israel, the Netherlands, and Canada, and conducted proceedings in Zurich, London, and Washington, D.C.
• We represented an energy industry equipment manufacturer in arbitration before the International Chamber of Commerce in Paris, France. Parallel litigation took place in the state court in Houston. The case involved claims and counterclaims based on two construction and pre-assembly contracts governed by the International Chamber of Commerce.
• We have handled numerous NASD arbitrations on behalf of securities firms in claims alleging unsuitability, misrepresentation, failure to supervise, and breach of fiduciary duty. Further information is guarded by client confidentiality.
• We represented a national brokerage firm in a Title VII discrimination case before a panel of three NASD arbitrators, involving a former stock broker who claimed he was terminated because of race.
• We have represented various international oil and gas companies in a number of ICC arbitrations overseas on subjects as diverse as letters of credit, buying and selling product, and supply and distribution agreements.
• We represent a party seeking damages in a dispute involving the sale of an electrical power plant. This dispute involved dual track litigation in trial court and before an arbitration panel. The two litigation teams structured the proceedings to complement the discovery, motion practice, and presentation in both actions, emphasizing and prioritizing development to optimize efficiency and effectiveness for the client.
• We represented a major oil and gas company in a dispute involving the calculation of royalties for various production streams, proper application of division orders and accounting for a plant split associated with a unit cryogenic processing facility. The dispute originated in trial court and involved highly complex factual and legal issues primarily revolving around the method of accounting, legal entitlement to the various production streams pursuant to the then-controlling division orders, and application of plant expenses to royalty revenues. The case was made more complex due to the volume of documents which numbered in the hundreds of thousands, and the disputed period of time involving decades of production. Our lawyers were able to identify certain legal and factual issues which were holding up total case resolution, and the parties voluntarily agreed to submit these more complex issues to an arbitration panel composed of subject matter experts. A condensed schedule was adopted to minimize costs.
• We represented a oil and gas service company in a dispute arising out of a down-hole failure which occurred during an oil well stimulation procedure. The well owner plaintiff claimed damages resulting from the alleged loss of the well and associated damages contained within their damages model. The case was originally filed in trial court but our lawyers compelled arbitration before a panel composed of three former state and federal trial and appellate judges