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Understanding Litigation Can Make the Process More Controllable

June 17, 2014
On the Law

This column was originally published in the Grand Rapids Business Journal on February 7, 2014 and is republished with permission.

As a trial lawyer, I read essays on litigation.  The best title that I ever saw on a column was, "Litigation in America - As Welcome as Sickness or Death."

The author opined on why litigants hate lawsuits.  His list of criticisms was lengthy.

I saw the "Sickness or Death" column in 1989.  During the 25 years since, I have continued to work on lawsuit after lawsuit.  And, while litigation can be frustrating, it might be less detestable if litigants were aware of a few insights that might make the process more predictable.  Perhaps "controllable" is a better word.

Much of what follows is more opinion than scientific fact, but I offer the following to anyone who might sue or be sued.

How Long Is This Going to Take?  In Michigan Circuit Courts, and often in the local Federal Courts, most cases are first scheduled for trial roughly 15 months after a Complaint is filed.  A lot goes on during those 15 months, such as  analysis of facts, delay, filing motions, rescheduling hearings, status conferences, more delay, nasty letters between lawyers, communications with the court and its staff, more delay, and payment of legal bills.

Note the interval of approximately 15 months until the first trial date occurs.  Note also that a trial date is not the same thing as a trial. 

Michigan Judges have hundreds of disputes on their dockets.  In response, courts are often forced to schedule between three and five trials for any given trial date.  The hope is that, if enough cases settle, then other scheduled cases can actually go to trial.  Thus, while a litigant may receive notice of a trial scheduled for roughly 15 months after the Complaint is filed, the case may not actually be tried until its second or third date, perhaps as late as 6 to 12 more months after the initial trial date.

So How Does a Litigant Move a Case Along?  Given crowded dockets, one key to the resolution of litigation is a process that lawyers know as "discovery."  "Discovery" is the process of exchanging information before trial with an eye toward causing litigants to learn the strengths and weaknesses of their cases.  The process often leads to settlement instead of trial.

Discovery includes document exchanges, depositions, witness statements, and inspection of property.  When taken seriously, it often leads to early resolution of disputes.  Clients then go back to normal business activity instead of attending meetings with lawyers.\

Successful litigants are those who assign employees to actively assist legal counsel throughout discovery.  Unsuccessful litigants are often those who do not take discovery seriously or do not want to be bothered with it.

How Do We Settle Before Trial?  Numerous Court Rules provide for alternative means of dispute resolution well in advance of trial dates.  Chief among them in the Michigan state courts is Case Evaluation.

Case Evaluation hearings follow the discovery process.  They feature presentations by counsel to independent "Case Evaluators" concerning the strengths and weaknesses of cases.  Hearings typically take less than an hour, after which the Case Evaluators announce their view as to where a case should settle.  When both parties agree, the matter settles for the recommended amount. 

In order to make Case Evaluation meaningful, penalties are awardable against parties who refuse to accept the recommendation of a case evaluation panel -- thereby making trial necessary -- and who do not subsequently improve their position by at least 10% at trial. 

Litigants who study the process should understand that Case Evaluation is regularly becoming a substitute for trial.  Thus, serious participation during the discovery process with the goal of achieving a good Case Evaluation result is very important to parties who want favorable outcomes.

At Trial -- Who Decides the Facts?  Litigants who finally get to trials are often pleased by jury decisions.  Those who are not pleased are often miserable. 

Regardless of where we end up on the pleased or miserable scale, a couple things are for sure.  For starters, jurors are theoretically chosen in the hope that they will deliver independent decisions.  In order to do so, they are often selected because they know little about the background to a dispute.

Jurors take their oaths seriously and do the best they can to solve complicated disputes.  But who would regularly expect a randomly-selected jury to have insights that are superior to the insights that might be shared by litigants who roll up their sleeves and attempt to settle disputes before trial, based upon shared common knowledge?

The Pit Bull Lawyer -- Finally, there is the idea that what everyone really needs for a lawyer is a pit bull in a decent suit.  To the extent that another distinguishing mark of the pit bull lawyer is a nasty attitude toward any legal adversary, litigants may do well to ask whether this trait is likely to lead to cool-headed deliberation and compromise. 

Most lawyers are competitive enough by nature as to be willing to fight fairly or unfairly and to be civil or uncivil depending upon the conduct of adversaries.  Thus, whether counsel has practiced 3 years or 33 years, he or she is probably capable of doing things the hard way or the easy way. The hard way is often marked by rude treatment and legal bullying.  The party who takes pride in hiring a pit bull often pays the price in missed opportunities to compromise, bitter feelings that lengthen litigation, and resulting expense.

I continue to think that litigation is preferable to sickness or death.  But sometimes it's a close call.  And one's chances of surviving the process are often increased through a close look at how it works.  Significant time and expense can be avoided when the process is undertaken seriously, with a commitment to resolution, even when resolution involves compromise.

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