Forty years ago, former Chief Justice Warren Burger wrote that “traditional litigation is a mistake that must be corrected. Our system is too costly, too painful, too destructive and too inefficient for a truly civilized people.”
So, since we are “civilized,” how are we to resolve disputes? TV and movies tell us that it’s by “going to court.” In no time, the litigants are in a wood-paneled courtroom, presenting their cases to a wise judge and a thoughtful jury. Justice prevails (most of the time).
Reality is far different. Monthly bills from lawyers for work on a lawsuit that never ends. Motions are not heard by judges for many months. Depositions and document productions that suck up time and resources. Discovery seems to have no boundaries, is intrusive and often embarrassing. Few lawyers warn their clients that discovery will require them to disclose thousands of emails and surrender their phones for inspection. Texts that were spontaneous and candid become the subject of examination by lawyers, paralegals, and IT vendors. Private financial and medical records are shared.
Even after all this, there is no trial. There is no cathartic moment of justice — proving the other side was wrong and obtaining a satisfactory remedy. Civil trials, particularly those involving business disputes, virtually never occur. Nationwide, only about 1 percent of civil cases reach trial, compared to nearly 12 percent in 1961. The California Supreme Court reports that approximately 222,000 unlimited civil cases (damages exceeding $25,000) are filed each year, but only about 1800 such cases are ultimately decided by juries. Some have observed that civil trials are “approaching extinction” and “virtually disappeared.” Why? And if there is no trial, why do we invest so much in getting ready for one? Shouldn’t we put our effort into a resolution that will be quicker, cheaper, and less distracting and draining?
Simply put, mediation is common sense. It involves compromise, which few people are interested in when a dispute first arises. Compromise becomes more acceptable, however, after the attorneys’ invoices keep coming and the unending nature of litigation becomes evident to clients. If compromise through mediation is not within the realm of possibility, a streamlined arbitration process can get the parties to the finish line efficiently and privately.
Why are trials no longer a real option for obtaining justice in civil disputes? First, state and federal courts are overloaded. Criminal cases take priority. Judges schedule civil trials on distant dates, and overbook those dates, in the expectation that cases will settle after the parties have exhausted each other up with discovery and expensive motions. In high-stakes disputes involving injunctions and unsettled issues of law, there often are multiple appeals that can extend the life of the case 10 years or more.
Second, the cost of litigation has gone through the roof. As in-house counsel, I would budget a half-million dollars per week for a trial if a large law firm was representing my company. That was more than a decade ago, and top partners are billing today about 50 percent more per hour than they were at that time. I’ve been involved in cases where discovery alone cost the client $1 million per month. The quantity and types of data that must be processed in discovery continues to increase.
Motions for summary judgment might resolve some issues (or the entire case), but they cost hundreds of thousands of dollars in large business disputes and the outcome is never assured. A single factual dispute results in a lost motion, emboldens the opponent, and increases the cost of settlement.
Third, for virtually all litigants, the risk of a trial is simply too great. Juries are unpredictable, and jury verdicts are difficult to overturn on appeal. An unfavorable verdict can financially destroy an individual or disable a company. Cost-shifting in contracts can dramatically increase judgments, and fraud claims can result in punitive damages. To appeal, the loser must post a costly, secured bond that is difficult to obtain even by successful companies and ties up assets for years. And company decisionmakers — the in-house lawyers and executives who must make the decision to roll the dice with a trial — place their careers at risk. A bad verdict in a patent case will most assuredly result in the departure of the general counsel who opted for a trial instead of a settlement. Even if the odds of the other side winning are less than 10 percent, the possibility of a billion-dollar verdict makes for sleepless nights and motivates eight-figure settlements.
Fourth, the court system itself has made it more difficult to reach trial. At each status conference, judges ask — or compel — the parties to engage in court-supervised or private mediation. It is difficult in most metropolitan courts to get timely hearings on discovery motions. Abusive tactics by opposing counsel who are not held to account with orders compelling production and sanctions, causes litigants to doubt their ability to obtain all necessary evidence for trial and obtain a fair result. Pretrial filings — trial briefs, exhibits, jury instructions, and evidentiary motions — and expert fees and depositions run up huge expenses in the final weeks before trial is set to start.
All this confirms that civil litigation only rarely results in total victory for anyone, no matter how strong their case might be. Recognizing the realities of litigation — sooner in the process than later — should cause most people and companies in civil disputes to seek out a strong, practical mediator who can facilitate resolutions that are efficiently accomplished and fair in their result.
