Oregon State Bar Bulletin — APRIL 2011

Legal Practice Tips

The Case for Trials:
The Alternative to Alternative Dispute Resolution?
By Richard Birke

Even the most diehard skeptic has to admit that in our litigious society, alternative dispute resolution has won the day. The numbers in Multnomah County, Oregon’s most populous, tell the tale: 15,000 civil filings, 100 civil trials. Everything else is negotiated, mediated, arbitrated or dealt with by motions.

The moniker “alternative” suggests something akin to “alternative lifestyles” and conjures images of Berkeley during the Summer of Love. The label is often used to marginalize a group and to suggest that supporters are not only out of step, but relatively few in number. With trial, the numbers suggest that the “alternative” has come to occupy most of the landscape.

As one of the few academics whose career has been devoted exclusively to negotiation, mediation, arbitration and “alternatives” to trial, you might expect I’d be pleased at the current state of affairs. But I’m not.

I started my career as a busy trial lawyer in a very busy district attorney’s office. While I settled 25 cases for every one I tried, the steady diet of trials in our office — amounting to several dozen a week — gave everyone in the county clarity on “the going rate” for a given set of facts before a given judge or jury.

The 300 lawyers in our office were, for the most part, excellent trial attorneys. When I started, I prosecuted about 250 trials a year — typical, especially for the beginners who handled mass volume misdemeanors. These cases could be tried in two hours, so we did — again and again and again. Trying cases made us great trial lawyers.

And trials made us credible negotiators. We could discuss the value of a case intelligently because we had seen a similar trial the day before and the day before that. When we were offering a good deal, we could easily persuade the other side of the sound basis for our evaluation.

The disappearance of the civil trial and the negative attributes associated with trials (too expensive, risky and full of unpredictable jurors) present threats to the credibility of everyone who labors in the realm of legal settlements. All lawyers bargain in the “shadow of the law.” And by “the law,” we mean not just the written statutes and appellate cases; we mean the actual law — jury verdicts, expected outcomes, costs, timetables and the like. When jury verdicts cease to be a source of information about the value of a case, lawyers want for credible reference points. Without a verdict history, we bargain “in the shadow of speculation” or “in the shadow of other settlements (and rumors of other settlements).”

But it’s not just the verdicts that we miss. The training matters too. Trial practice remains one of the most popular courses in law school. Students stumble through trial practice so that they will be polished by the time they are representing real clients in real trials. Better to make mistakes in a safe environment where only a law school grade, and not a client’s case, is on the line.

Then these students graduate, ready for trial. But they don’t go to trial. Instead, they negotiate in ways that try to make the threat of trial seem as real as possible. They’ve been taught that no one will negotiate with you seriously if you seem afraid to go to trial. So they make sure the other side knows they aren’t afraid — by threatening trial as a means of negotiating a settlement. They argue the strength of their case — the law, their witnesses, the facts — until both sides see negotiation as an unforgiving tug-of-war.

When this fails, as it often does, the cases are likely to come to mediation. In fact, this form of negotiation qua threat fails so often that it’s become common to skip negotiation in favor of mediation. Mediators are increasingly reporting that when they ask each side about the premediation history of offer exchanges, there is no history. In turn, the lawyers report that this phenomenon of “skip negotiation and see them in mediation” has hurt civility among lawyers.

Ironically, once lawyers decide to mediate, they finally get to use… their trial practice skills! They use the first mediation session as a chance to orate and try to persuade their opponent how they’ll be crushed if the case goes before a jury, and perhaps they are also trying to meet client expectations as well. Lawyers know how they are portrayed in the media and they have good reason to believe that clients hold “Perry Mason/LA Law/Law & Order”-like notions of what top lawyers do. The lawyer knows that the case is unlikely to go to trial, and also that the client has paid a lot of money for activity that has been mostly invisible to the client, and that a vigorous rendition of the client’s case in the face of the adversary meets these archetypes of what good lawyers do.

This is not a benign activity. Arguing about how their case would look to a jury is rank speculation, and moreover, it’s destructive to the mediation process. They aren’t in front of a jury and arguing right and wrong alienates the other side. They don’t know what a jury would do and pretending that they do costs them credibility. But most importantly, these lawyers lose an opportunity to talk about how they and the other side might work together to bridge their differences. They forget they need the other side as a partner and that their posturing doesn’t tend to lead to a good partnership.

Therefore, unlikely as it may seem, this dispute resolution professor is saying that we need more trials.

I was recently chosen to be a juror in a rare civil trial. The trial I was privileged to see was an incredibly close case that was tried well by the lawyers. The judge and jury performed their duties flawlessly. The trial reawakened in me my reverence for trials and reinforced my belief that without a vibrant and well-used trial system, the state of dispute resolution is the poorer for it.

If 100 trials per year, or one-half of one percent, is too few, how many is enough? I’ve asked this question of some pretty powerful folks but the most memorable answer came from the great federal judge (and mediator) Ed Leavey who said, “Ten percent would probably be enough — but I’d want to pick which 10 percent.” Perhaps that’s the right answer — enough that the verdicts represent a cross section of the cases out in the world — enough that trials could serve a communicative function that helps order the “alternative” resolution of the rest of the cases.

Our system of processing legal claims, much like the rest of the world, is not a set of independent parts that merely coexist side by side. Rather, it is an evolved set of processes that exist in symbiosis. Just as a paucity of honeybees threatens species that depend on the fruit that bees pollinate, a paucity of trials threatens the integrity of the nontrial methods of resolving conflict.

And just as nature will adjust to a declining honeybee population — an adjustment that may not be so comfortable for humans — the legal system is adjusting to a declining population of verdicts, which may not be so comfortable for litigants and their lawyers.

The author is a professor at Willamette University College of Law where he teaches and directs the Center for Dispute Resolution.

© 2011 Richard Birke

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