SAN FRANCISCO DAILY JOURNAL FRIDAY, JULY 1, 2005 PAGE 2

By Adrianna KhooDaily Journal Staff Writer

When Alexander S. Polsky goes towork, he doesn’t expect to be back

at 5 o’clock, doesn’t plan for a lunch breakand doesn’t even think about taking aweekend off.

“I love what I do and I do what I love” isPolsky’s motto.

“This is not a profession with a starttime and an end time,” he said.

If it takes from 4 p.m. to 7 a.m. the nextmorning for the JAMS mediator to getplaintiffs and defense attorneys to reach asettlement, Polsky looks forward to put-ting in the time and expects any goodattorney to do the same, he said.

Key to Polsky’s 98 percent settlementrate, he said, is a concentration on guidingattorneys to take a hard look at the poten-tial financial and emotional risks theirclients face if they don’t resolve a dispute.

That focus on risk assessment provedeffective for W. Michael Hensley ofJackson, DeMarco, Tidus &Peckenpaugh in Irvine, who came tomediation in hopes of settling a disputebetween his client, real estate companySeacliff Land, and the 67 lessees suing itfor raising the rent.

“I guess if there’s anything that Ilearned from Alex,” Hensley said, “one isthat he can certainly stay up late at nightand, two, he’s tenacious.”

Seacliff Land had leased 50 plots ofbeachfront property in Ventura to resi-dents who could build whatever dreamhomes they wanted at the Seacliff BeachColony with the agreement that thehomes would be returned to Seacliff Landif the leases were terminated.

Residents typically signed 15-yearrenewable leases and paid rent at $1,000 amonth. Some had built homes starting inthe early 1970s, according to Hensley.

When Seacliff Land attempted to raisethe rent by 1,500 percent, beach colonyresidents took up arms and filed suitagainst the drastic increase, Hensley said.

Lessees were not satisfied whenSeacliff Land agreed in a 2003 arbitrationto increase rents by 10 percent each yearfor the next four years, instead.

But Seacliff Land would not be satisfiedunless it could get a return on the primereal estate that had been appreciatingsince the 1970s, Hensley said.

That’s when Polsky stepped in to han-dle the case.

“Warfare over the rent was not going tohelp either side,” he said.

“The lessors needed to realize that theyshould sell all and then buy commercialbuildings, and the lessees needed a vehi-cle to stay in their units or for those whocould afford it, form an LLC and buy it,”he said, referring to a limited liability com-pany.

The result was a $54 million dealbetween the two parties in which lesseestook ownership of their homes for good,Polsky said.

And he used every trick in the book toachieve the result, even down to the par-ties’ seating arrangements, he said.

“We started at JAMS in Santa Monicaand ended up doing a marathon from 9a.m. until 2 a.m. at a Santa Barbara hotel,”Hensley said. “But Alex stayed there andmade it happen. He had our group on oneside of the hotel, and there’s 67 people onthe other side.”

Keeping plaintiffs and defendants sepa-rate is one tactic Polsky values when deal-ing with cases in which emotions runhigh, he said.

That could mean keeping parties at dif-ferent ends of a hotel or on different floorsof the office when it comes to sexual-harassment or wrongful-death claims orother emotionally charged cases.

One of Polsky’s more unconventionaltactics for keeping the peace includedanswering a Sunday afternoon house callfrom a divorcing pair in Beverly Hills duel-ing over the family’s antique bone china.

The two had contacted their attorneys,who in turn called Polsky, not knowinghow to handle the fighting and screaming.

Polsky knew exactly what would workwhen he picked up one of the treasuredplates and let it fall to the floor, shatteringinto pieces.

“‘Now that I have your attention.’”Polsky said he told the couple. “‘If we can’tagree to resolve this, I’ll keep droppingplates.’”

Polsky convinced the couple to entrustthe china to the children, breaking thecase down into a fundamental rule.

“When two people want to drink out ofthe same glass, then they can’t have theglass,” he said.

Sometimes, a defendant’s acknowl-edgement of a mistake is just as importantto the plaintiff as financial compensation,Polsky said.

One of his successful settlements is thecase of the family of a woman who

sued a shopping mall after she tripped in aparking lot and died of her injuries.

The woman had just been diagnosedwith cancer and told that she had onlythree-to-six months to live, Polsky said.

“The family embraced this diagnosis asher being blessed by knowing her life wasover and were planning a party,” Polskysaid.

In preparation for the celebration, thewoman went to an Orange County mall toget her nails done. But as she was walkingfrom the mall to her car along a pedestri-an pathway, she tripped on a curb stop, thetwo-foot concrete block normally used todivide parking spaces.

The block was lying in the pedestrian

area because the parking lot was being re-striped. When the woman tripped, she hither head on a curb and died of the headtrauma shortly thereafter.

“How do you measure the loss? JuryNo. 1 could have said, ‘You robbed thiswoman of this precious pearl of time,’ andjury No. 2 could have said, ‘What are youdoing? She was going to die, anyway,’”Polsky said about presenting the risks ofgoing to trial to both sides.

But what plaintiffs really were after,Polsky said, was respect for this womanand an apology from the defendants, withassurances that they would protect thepublic from future accidents.

The defendants agreed that they wouldmake sure curb stops were removedpromptly after any construction so as notto injure anyone else, Polsky said.

Both parties also held a joint press con-ference to unveil a plaque in memory ofthe woman.

“It was very difficult because it was adeath and the fact that the family had

already been going through a difficultprocess with the cancer condition,” saidplaintiffs’ attorney David L. Belz of Kuhn& Belz in San Juan Capistrano.

“You either connect with somebody oryou don’t, and Mr. Polsky was able to con-nect with these people,” Belz said. “Hegained their confidence when there weresome very strong emotions involved, andhe helped them move through the media-tion process to a resolution.”

The satisfaction of striking a balancebetween the interests of two sides is

what got Polsky interested in leaving hislaw practice for the life of a mediator.

He started his legal career as anOrange County deputy public defender in1977. In 1980, he got to see the other sideof the same coin by going to work for theOrange County district attorney’s office.

He moved on to manage his own firmfrom 1983 to 1992, until he joined JAMS asa mediator.

“Trial work focuses on the interests of

one side,” Polsky said. “Being a neutralfocuses on resolving issues for all parties.As a trial lawyer, I assure you that myhours were not 9 to 5, either, but I comehome happier now.”

One of Polsky’s recent successesinvolved handling the case of a womanwho claimed an ephedra product causedher to develop a lung disease that resultedin her having a lung transplant.

Rex Littrell of Ulmer & Berne inColumbus, Ohio, who defended the drugmanufacturer, Twin Labs of Long Island,N.Y., against the woman, said one ofPolsky’s mediation strategies was reduc-ing expectations that are too high.

The plaintiff filed suit against Twin Labsafter taking ephedra for muscle toning forseveral months. But Littrell said heargued that no established science con-nected ephedra to the lung disease.

That’s where Polsky came in to assessthe risks to both sides. He told the plain-tiffs that, if the court concluded the evi-dence was not fully developed, the med-

ical opinions would not be admissible incourt.

“That was the risk to the plaintiffs,”Polsky said.

“The risk for the defendants was that, ifthe court would conclude that it was suffi-cient, then that would open up a panoramaof new cases,” he said.

That kind of analysis proved effective insteering both sides into a confidential set-tlement, Littrell said.

“He needed to reduce the expectationsof both parties so they could have thechance to be comfortable reaching a set-tlement,” Littrell said.

Polsky’s ultimate goal is an appoint-ment to the bench or mediating intergov-ernmental disputes.

Until then, he plans to keep mediatingcases from all disciplines. He said he’s flat-tered that attorneys ask him to handlecases, even on weekends.

“If they fly in from all over and showthey really care, how could you say no?”Polsky said. “I have to do what peopleneed me to do.”

Here are some of the lawyers who haveused Polsky’s services:

Michael J. Bidart, Shernoff, Bidart &Darras, Claremont; Daniel J. Callahan,Callahan & Blaine, Santa Ana; Dean J.Zipser, Morrison & Foerster, Irvine; N.Denise Taylor, Bonne, Bridges, Mueller,O’Keefe & Nichols, Los Angeles; RussellP. Brown, Gordon & Rees, San Diego;Gary A. Wolensky, Snell & Wilmer, Irvine;Robert B. Hubbell, Heller Ehrman, LosAngeles; Keith G. Bremer, Bremer,Whyte, Brown & O’Meara, NewportBeach; and Donna R. Kirby, Ford, Walker,Haggerty & Behar, Long Beach

Mediator Makes Attorneys Take Hard Look at Risks Their Clients Face

cord blood and was able to use it later tocure their first child’s leukemia.

But Dr. F. Leonard Johnson, presidentof the American Society of PediatricHematology/Oncology called the privatecord blood banking “nonsense” and “awaste of money.”

Johnson said ads are misleading andshould be removed.

“We now know that what predisposesthe child to leukemia is in his blood beforehe is born,” Johnson said. “What you needis cord blood from a healthy donor. Therehasn’t been a single transfusion yet in thesetting of using a child’s cord blood forhimself.”

One exception to storing a child’s cordblood at a private bank is if an older siblinghas leukemia or sickle-cell anemia andcould use the newborn’s cord blood stemcells, Johnson said.

Otherwise, parents are “wasting” up to$3,000 to collect and store cord blood untiltheir child turns 18, Johnson said.

Worth claimed that cord blood banks

use emotional appeals to pray on expec-tant parents when they are most vulnera-ble.

One appeal to parents on the CordPartners Web site reads, “There existsonly one chance in a lifetime to collect andpreserve your baby’s umbilical cord blood(also called cord or placental blood). Thisirreplaceable source of stem cells will helppreserve the cleanest, most natural formof cellular health for the rest of yourchild’s life. If not collected at birth and pre-served, this unique opportunity could belost.”

Worth contended that expectant par-ents, like him, are especially vulnerable to“emotional blackmail.”

But McCallum disagreed.“So a pregnant woman is susceptible to

the claims and will just give her moneyover?” she asked.

McCallum argued that parents do notneed to be protected from the ads.

“It’s a health care choice on behalf ofthe parents,” she said, “and if they wantedto collect and store the blood, they shouldhave the chance to.”

“Trial work focuses on the interests of one side,” mediatorAlexander S. Polsky said. “Being a neutral focuses on resolv-

ing issues for all parties. As a trial lawyer, I assure you that myhours were not 9 to 5, either, but I come home happier now.”

HUGH WILLIAMS / Daily Journal

By Eron Ben-YehudaDaily Journal Staff Writer

The San Diego chapter of CitizensAgainst Lawsuit Abuse recently

awarded cash prizes to local teenagerswho won an essay contest about “merit-less” litigation.

The sixth annual competition target-ed junior- and senior-high-school stu-dents in San Diego County.

“They’re the next voters. They’re thenext jurors. They’re the next litigants,”said Andy Kotner, the tort reformgroup’s president.

The contest asked the youths to writeabout the recent nationwide spate ofsuits that blame restaurants for makingpeople obese.

“Where does personal responsibilityend and a lawsuit begin?” read the flierannouncing the contest.

The Consumer Attorneys Associationof Los Angeles doesn’t do anything sim-ilar. Neither does the Sacramento-basedConsumer Attorneys of California,whose president took a dim view of themessage being sent.

“I think it’s very depressing and frus-trating,” President Sharon J. Arkin said.

The vast majority of suits are not friv-olous, Arkin said.

Her organization, comprising 3,000plaintiffs’ attorneys statewide, is start-ing outreach programs for school-agechildren, but with the goal of providing

a more balanced approach to educatingthe public about the civil justice system,Arkin said.

Fifteen students submitted essays to

Citizens Against Lawsuit Abuse. Firstplace earned $1,000, second place $500and third place $250.

The winners were honored at a June15 luncheon attended by 400 guests atSan Diego’s Town and Country Resort& Convention Center, Kotner said.

Speakers included best-selling authorJoseph Wambaugh, considered thedean of crime writers.

“The place was packed,” Kotner said.Third-place winner Bethany Graham,

17, will be a senior in the fall at theKearny School of InternationalBusiness.

People who bring obesity suits shouldknow better, Graham said.

“They should have known that eatingall that food was bad for them,” she said.

The litigation poses a threat to therestaurant industry, she said.

“If they’re always being sued thenthey’re not going to be able to continuetheir business,” she said.

The San Diego chapter counts 10,000people as “supporters,” Kotner said.

The group doesn’t require dues andso doesn’t have members, she said. Theorganization depends on donations,with the majority coming from small-business owners, she said.

The San Diego chapter is one of six inCalifornia. Statewide, the organizationhas 40,000 supporters, Kotner said.

Graham said one of her teachers toldher about the contest and encouragedher to participate.

But not all instructors reacted posi-

tively to the competition, Kotner said.One left her an anonymous phone

message referring to the contest as“ridiculous” and “biased,” she said.

The teacher claimed the advocacygroup was “brainwashing” the children,Kotner said.

Graham doesn’t agree. She doesn’tthink all lawsuits harm society.

“Definitely not,” she said.She researched the topic before writ-

ing about it.“I read a lot about the different points

of view on lawsuit abuse and stuff likethat,” Graham said.

Plaintiffs’ attorney Janet E. Sobelattended the event and saw defenselawyers at the gathering.

“[But] I didn’t notice any of my fellowplaintiffs’ bar there,” said Sobel, a SanDiego sole practitioner.

While she opposes “meritless” suits,she said she disagreed with many of thecomments made by the event speakers,especially the criticism of cases filedagainst businesses in order to enforcecompliance with laws requiring accom-modation of the disabled.

“I think litigation absolutely has itsplace,” Sobel said. “Otherwise, the sys-tem is too powerful against the peoplewho have been injured.

“That’s where my heart is, with thesmall guy,” she said.

Tort Reformers Award Prizes for Essays on ‘Meritless’ Litigation

Father’s Suit Targets Ads for Umbilical Cord Blood Banks

Fred Maffei was 82 and felt the need to sethis affairs in order in anticipation of hisown death.

“He assumed that he, as a husband,could at a later date effectuate his andFlora’s wishes,” Park said. “He had no rea-son to believe [the Gabiati family] wouldobject.”

But Ernie Gabiati, who owns the cryptwhere Flora’s body lies, did not approve.

Although Albina Gabiati had died bythen, Ernie Gabiati found the idea of mov-ing his sister’s remains after so manyyears upsetting, according to the opinion.

“He refused to consent in honor of hismother Albina’s memory because sheand Flora had been very close,” the opin-ion states.

So, on June 25, 2003, Fred Maffei peti-tioned San Mateo Superior Court JudgeCarl W. Holm for permission.

Holm gave five reasons for his denial.Two decades had passed between FloraMaffei’s burial and the lawsuit. FredMaffei didn’t object when Flora died to

having her buried in her family’s vault. The other remains in the Gabiati family

crypt might be disrupted. Flora Maffeilikely would object to sharing a vault withthe remains of her husband’s second wife.

And there was “the absence of a com-pelling reason to disturb the [repose] ofthe dead.”

In court papers, Park argued that thecourt didn’t give enough weight to thewishes of Flora Maffei.

Jacobson said the court decision is outof touch with modern times, in whichsociety faces an aging population with agreater mobility and increased rate ofremarriage and divorce.

“This is going to make it difficult forsurvivors to reunite with their family,”Jacobson said.

Stoll said reuniting bones is not thesame as reuniting families.

And he said trial judges can come to dif-ferent conclusions based on differentfacts.

“There’s plenty of cases that allow dis-interment and removal,” Stoll said.

Appellate Panel Upholds Ruling Respecting ‘Repose of the Dead’

Network storage solution companyNetwork Appliance Inc. has agreed toacquire network encryption companyDecru for $272 million in cash andstock.

Wilson Sonsini Goodrich & Rosatiattorneys based in San Francisco arerepresenting Network Appliance, whileDecru is represented by CooleyGodward attorneys.

Redwood City-based Decru andSunnyvale-based Network Appliancehave worked together in the past year tohelp companies and various govern-ment agencies safeguard their data andcomply with regulations.

Decru makes a security platformcalled DataFort that protects data insideof the traditional “firewall” used to keepauthorized users from penetrating a net-work.

The two companies serve customersin sectors including investment bank-ing, health care, semiconductors, soft-ware and the federal government.

The deal is expected to close inOctober.

Online advertising firm ValueClickInc. has agreed to buy companies WebMarketing Holdings Inc. and E-BabylonInc. in stock and cash deals worth $155million.

Westlake Village-based ValueClickwill buy Web Marketing Holdings,which does business as Web Clients, for$141 million, including $122 million incash, $1.8 million shares of commonstock and 350,000 options to purchaseshares of ValueClick common stock.

Web Clients is based in Harrisburg, Pa.Additionally, ValueClick announced it

would buy Simi Valley-based online inkand toner retailer E-Babylon for $11.7million cash.

Gibson Dunn & Crutcher attorneys inLos Angeles and San Francisco are rep-resenting ValueClick in both transac-tions. Web Clients is represented byWashington, D.C.-based Hogan &Hartson attorneys, while E-Babylontapped Los Angeles-based Rodi, Pollock,Pettker, Galbraith & Cahill as counsel.

Both transactions are expected toclose in July.

— Geneva Whitmarsh

MTV Networks paid $160 million toacquire NeoPets Inc., the owner and

operator of NeoPets.com, the world’slargest youth community on theInternet.

Gibson Dunn & Crutcher attorneysin Palo Alto represented NeoPets, whileViacom, which owns MTV Networks,was represented by Hughes, Hubbard& Reed in New York and Los Angeles.

Glendale-based NeoPets is a globalonline entertainment network whosemembers create and care for “virtualpets” that inhabit a mythical landcalled “Neopia.” To date, 25 millionmembers worldwide have createdNeoPet accounts in 10 languages,generating 5 billion page views permonth.

Viacom officials have said the move isexpected to boost the company’s mar-keting business.

— Geneva Whitmarsh

Deals

Continued from Page 1

Continued from Page 1

Alexander S. PolskyCivil Litigator

Age: 54

Affiliation: JAMS

Location: Los Angeles and SanFrancisco (and provides ADR servic-es worldwide)

Specialties: Severe injury, elderabuse, mass tort and product liabil-ity; maritime, business, commercialand entertainment litigation; classactions; employment wage-hour;intellectual property; insurance; realestate; medical malpractice; andconstruction. Also arbitration, inter-national arbitration and specialmaster.

Rate: $7,000 per day

‘I think litigation absolutely has its place.Otherwise, the system is too powerful

against the people who have been injured.That’s where my heart is, with the small guy.’

Janet E. Sobel,Attorney