Oregon State Bar Bulletin — JANUARY 2007

Parting Thoughts
Are Trials Passe?
By Hon. Kristena LaMar

In 1968, in an interview in a beauty pageant, I was asked why I wanted to go to law school. The answer was simple: I wanted to help people solve problems. A law degree offered the best training and credentials in achieving that end.

In 1984, the late Chief Justice Warren Burger who, no doubt, had never competed in a beauty pageant, said:

The entire legal profession — lawyers, judges, law teachers — has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.

In 2006, those words are no less true — and probably truer. The fallacy that we resolve conflict, or at least resolve it creatively and economically, by trial, persists. We even train high school students to become trial advocates. But, let’s face it. What we really have is trial by deposition. Just as in 1984, most litigation is resolved by settlement; fewer than 10 percent of any type of case in any court is resolved through means other than courtroom battle. Arguably, that means that preparation for trial is a waste of time in 90 percent of all filed cases.

If you don’t think that alternative dispute resolution is "where it’s happening," just read the advertisements in the bar Bulletin. Contrast this publication with its predecessor even 15 years ago: no one advertised as arbitrators, let alone mediators.

As Thomas Friedman forcefully establishes in his book The World Is Flat, which I enthusiastically recommend to you, the environment of localities, regions and the world is changing. I submit that litigants — be they CEOs of large or small companies, "working stiffs" caught up in domestic, traffic, neighbor or commercial disputes, and even small claims disputants — simply don’t have the time to participate in our rather quaint and archaic rituals preceding and including trial.

All of the groups I just referenced (and most everyone else), have become familiar with solving problems virtually — via Internet mediation on eBay, Dr. Phil’s media psychology, even Judge Judy or the network jurist du jour. Why, then, would any rational person elect to spend even one day away from his or her home or job to be interrogated by a seemingly tyrannical opponent in an office meeting room or a public courtroom? Why must people arrange for childcare, navigate downtown traffic, pay for parking, and find the appointed building and room, when all they wanted to do was settle without filing a lawsuit?

Many lawyers view trial as a personal failure of their ability to solve problems, which many of us established as personal goals before law school. Most "scorched earth" letters written by enthusiastic advocates destroy relationships and the respect of any judicial officers who read them. As my legal mentor said: "Don’t say or write anything you wouldn’t want your mother to read, or you wouldn’t want published on the front page of the home newspaper."

Adversarial dispute resolution skills are often antithetical to effective dispute resolution; litigation is often detrimental to long term satisfaction with the outcome. As one husband in a divorce case remarked to me: "I didn’t know I was such an evil person until I read my wife’s lawyer’s trial memorandum." What effect will those words have upon his ongoing relationship with her or their children — or their eventual grandchildren?

Sid Lezak, the grandfather of ADR in Oregon, remarked that "mediation is not for sissies." Those of you who knew or have heard of Sid know that he was many things, but not a sissy. He appreciated the value of sensitive candor, tempered criticism and patient humility. In my years as a trial judge in the courtroom, though, I rarely saw those qualities exhibited. The battleground of the courtroom requires too much invective and lack of inspired design to be an effective dispute resolution mechanism. As Winston Churchill said, "To build may have to be the slow and laborious task of years. To destroy can be the thoughtless act of a single day."

The courtroom is the modern-day street for buggies. As the keepers of the livery stable, tomorrow’s attorneys must become adept at something more creative than shoeing horses.

Judge LaMar is a circuit court judge for Multnomah County, and has been that county’s chief dispute resolution judge since 1987.

© 2007 Hon. Kristena LaMar

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