Oregon State Bar Bulletin — APRIL 2007

We Need Help From Judges
I write in response to the article "Are Trials Passé" by Judge Kristena LaMar in the January 2007 issue.

Judge LaMar repeats the often stated assertion that overly aggressive lawyers actually do a disservice to their clients. I have read probably over one hundred articles of the same tone in various legal journals over the years, namely that "hardball" does not work; that judges do not like it. The trouble with that assertion is that "hardball" does work; that clients want "tough" lawyers and they are likely to fire someone whom they perceive as
too passive.

In order to combat "hardball" lawyers we need help from judges. Just once I would like to see a judge lean over the bench and say to a lawyer in front of his or her client "your behavior (or the language of your brief) is not helping your client’s cause." It is my understanding that some trial court judges are reluctant to chastise lawyers because they perceive that appellate courts do not uphold their decisions. I can understand that perception when it involves the imposition of sanctions because awards of sanctions are often reversed. However, it is beyond me how an appellate court could (or would want to) get involved where a judge just says something to an overly aggressive lawyer in front of his or her client.

Peter M. Appleton

The Right to a Trial Should Be Preserved
Judge Kristena LaMar, whom I admire greatly, has got something backwards. In an article in the Bulletin entitled "Are Trials Passé?" (January 2007), she observes that just 10 percent of lawsuits are resolved through trial, which leads her to conclude "that preparation for trial is a waste of time in 90 percent of all filed cases" and that trial itself has become a "rather quaint and archaic ritual[]" — one that should give way to alternative forms of dispute resolution, such as her favorite, mediation. In my view, just the opposite is true: 90 percent of cases settle because of the 10 percent that are tried, and for that reason, if no other, the right to trial should be preserved.

When mediation succeeds — which isn’t all the time — it’s not because it’s an ideal form of dispute resolution. A successful mediation is not, as some believe, a win-win proposition. In fact, it could be viewed as more of a lose-lose proposition. Both parties have to give up something — have to accept less than what they want or believe they are entitled to. That’s why mediators are so fond of quipping, at the end of the day, that "it must be a good deal because everyone is unhappy."

Mediation succeeds, if at all, because it is an alternative form of dispute resolution, meaning alternative to trial — which is clearly a win-lose proposition. At trial, one party wins and the other loses. Fear of being the loser is what motivates parties to mediate and, while mediating, to make the compromises that settlement requires.

Trial, then, is what makes mediation possible. Without it, mediation would just be lawyers and parties posturing endlessly. And so, if trial ever becomes passé,
mediation will too.

In my view, alternative dispute resolution will survive only as long as it remains alternative dispute resolution. If it ever becomes the only method of dispute resolution — if we ever get rid of trials
altogether, as some people favor — few disputes will ever end. For that reason alone, I hope we preserve the right to trial.

Of course, trial is important in its own right, because some parties don’t want to compromise. They don’t want half a loaf or fifty cents on the dollar. It’s not always — and, in my experience, it’s not often — because they are greedy or overreaching. It’s because they feel they’ve been wronged and they want to be made whole. They want to be restored to all of their rights, not just some of them. Simply put, they want their day in court — to present their case, come what may.

More power to them. Their right to eschew compromise and proceed to trial and (they hope) a complete vindication is not, in my view, a failure of our legal system. It’s the genius of it.

Thomas M. Christ

Let’s Improve, Not Discourage, Courts
No doubt the article by Judge LaMar in the January Bulletin ("Are Trials Passé?) will stimulate a lot of comment, particularly among those lawyers, such as the writer, who grew up at a time when trials were the accepted, if not the only, method of settling disputes. She probably expected, and maybe desired, to spark some lively discussion. So, with due respect, the following thoughts are offered as additional fuel for the fire.

Our adversarial system is based upon the premise that the truth is most likely to be found, and justice done, if both sides present their respective positions as strongly as possible, within the bounds of fairness, to an impartial tribunal for decision. The concept is akin to the philosophy underlying our devotion to freedom of speech, which encourages the assertion of conflicting viewpoints. Realistically we must recognize that neither system works perfectly all the time. The result of a particular trial may not seem like justice; and an unpopular viewpoint may be arbitrarily squelched. But that may be the result of human fallibility, and it doesn’t necessarily mean that the system is no good.

It is a truism that alternative dispute resolution (ADR) is growing, and that its prevalence means that lawyers have fewer opportunities to gain experience in trials. But it must be remembered that arbitration and mediation are meaningful only against the backdrop of what the courts would do if the case were tried there. Each side assumes or attempts to predict what the court or jury would do, and bases its position accordingly. And it is significant that court review of an arbitrator’s award is still available in some cases. The fact that 90 percent of all filed cases are settled doesn’t mean that preparation for trial is wasted, as suggested by Judge LaMar. More likely, it’s the trial preparation that brings about the settlement.

Some of Judge LaMar’s criticisms of trials go to the conduct of the lawyers involved, rather than to the trial system itself. Experienced trial lawyers will generally agree that "scorched earth" tactics are in the long run self-defeating, and that better results will usually be obtained if a lawyer is courteous helpful and efficient in the presentation of the case Conveying that idea is one goal of the recent emphasis on professionalism

Our present system, with jury trials as an important part, is the result of hundreds of years of development; and in contrast, arbitration is relatively recent. Of course age alone does not guarantee excellence; and the slowness of arbitration to take hold may have been in part a result of the courts jealously protecting their turf. And arbitration itself is a manifestation of the adversary system, although theoretically more efficient than courtroom trials.

Without rejecting arbitration entirely, or embracing it as a complete substitute, it would seem that our efforts would be better directed toward improving the court system rather than discouraging its use.

Randall B. Kester

Care and Feeding of Clients
I recently had the opportunity to help settle a legal malpractice case. Plaintiff claimed his lawyer had failed to
perfect an appeal on some part of a workers’ compensation case. Whether the
appeal would have been a success was
very questionable.

The attorney quickly realized his error, wrote a letter to the client explaining all and accepting responsibility. Then he called the PLF. While representing the plaintiff, the attorney maintained a great working relationship with his client.

Mistakes can happen to anyone. This attorney benefited from his honest professionalism. At the settlement conference I told the plaintiff that I had talked to his ex-attorney, related to the plaintiff how bad the attorney felt and how hard it is on any good lawyer to be in this situation. (I know, as I once was one as well.) The plaintiff began to cry and said "… is a great guy, a good lawyer and he always treated me well."

And then the case settled — for not much money. If this practitioner wants to out himself he can. For my money, I’d hire him to teach all of us about the proper care and feeding of clients (litigants) — it would be good for our profession.

Deanne L. Darling, Oregon City Judge
Clackamas County Circuit Court

Justice Tooze Had No Footnote Fetish
Judge Landau’s article "Footnote Folly" (Nov. 2006 OSB Bulletin) brought back some memories from my brief attempt to clerk for Oregon Chief Justice Earl Latourette, 1954-55, and reminded me that not all legal scholars have a footnote fetish.

Justice Walter Tooze had no clerk and did his own typing on an old Underwood [typewriter]. He once had me distribute a first draft that with little editing became the published opinion of the court.

That first draft had 32 pages and no footnotes. The other justices had their copy the afternoon of the same day the case was argued.

I still have trouble believing that one person can combine the physical and mental skills needed to turn out the work that Justice Tooze did routinely.

Wayne Blair
Klamath Falls

return to top
return to Table of Contents