Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

[lucia]

Granted, I don't know what their terms were back in 2005 - but the above is fairly clear with regards to their current content.

I suspect Webshots language was largely the same back then. I've never suggested that uploading to Webshots meant VKT has granted Webshot's purchasers licenses to display nor that he granted the other wallpaper sites to hand them out for free.

[DavidVGoliath]

To be clear, I don't think anyone is suggesting that VKT will be awarded nothing if the trial goes forward. The issue is whether the award will be closer to $200 or $150,000+ attorney's feed or even in the vicinity of what he asked for in early settlement negotiations.

I think we both agree on this point, especially since California mandates ADR as a step before trial.

One of my own claims actually reached this point; it was my attorney in one room chatting to me via Skype, opposing counsel in the other room with the defendant, and the court appointed mediator going back and forth between each party until we pretty much reached an acceptable middle ground, which took about three hours in total.

Although either party can reject ADR, my counsel informed me that the assigned judge can take a dim view on those who don't at least try to hash out an agreement; it's down to Peggy and VKT to see if they can reach such an agreement which may be akin to "splitting the difference" between their penultimate positions before the petition was filed. If I recall rightly, Peggy had offered $300, whilst VKT was seeking $12,000... making a middle ground of c. $6,150. FYI, I'm presenting this as simple math alone.

So the question is how the facts of the case interact with precedents. We don't know all the facts-- even Peggy doesn't. But we do have access to some evidence which would likely be presented in court.

That's also a given - and no doubt more facts / evidence will come to light via discovery which, if I remember rightly, was something that was suggested happen in advance of ADR

One question: do you know of any cases where the award was in fact reduced to $200? I've had a cursory search for any such precedents but haven't turned up anything.

[lucia]

DavidVGoliath,
I don't know the history of all precedents-- not even limited to California. Oscar might have a good idea.

On the simple math... if we were just to use "simple math" might propose using logarithms as it avoids the difficulty that otherwise, the 'average' is driven by he amount demanded. Example if we average 300 and 6000 on a log scale and then exponetiate, we get 1341. exp(0.5*(log_e(300)+log_e(6000)))=1341.641.

But if we average 300 and 6000  on a linear scale, we get 3000+150-- which is basically dictated by the 'demand' of 6000. We'd get 3000 if the person being pestered made a counter offer of $0 .  And it really doesn't make much sense that the person demanding could 'dictate' the 'middle ground' as having a floor that is equal to 1/2 of whatever they demand-- even if the more reasonable value might be $0.

By the way, for the math averse, we could get the logarithmic result by whipping out logarithmic graphpaper (available at many stores) plotting, drawing a straight line and finding the 'middle'. This sort of paper is pretty commonly used in... well... economics, banking (and also engineering.)   I have no idea what lawyers would use!

[lucia]

For the record
exp( average( log_e($300)+ log_e($12000)) = $1897.367   So.... less than 6,150. And it's still "simple math".