Wednesday, October 17, 2007


A Kinder, Gentler Approach To Litigation in Our New World
by Tom Adler

Sometimes it’s good to just step back and take a deep breath and ask yourself some questions. Things that maybe you haven’t had the time to ask since before law school. Things like “What am I doing?” or “Why am I doing this?” Sometimes in the crush of lawyering the priorities of our lives become blurred and even extinguished. It leads to the refrain heard more and more often in courthouse halls and outside deposition rooms…….“ I wish there was something else I could do with my life”

Certainly the events of September 11th have given many of us pause to rethink our values of home, family, security, freedom, religion, charity and a host of other issues we routinely gloss over as we rush about filing motions, meeting deadlines and all the other things that lawyers do. However before we settle back into our old ways of lawyering and adjust to the pace of the war against terrorism, let’s take that deep breath and examine our way of doing business particularly in light of the war that was so cruelly put upon us on September 11th.

The Association of Trial Lawyers of America and many attorneys around the country have called for a temporary moratorium on lawsuits arising out of the terrible tragedy that has struck our country. Certainly a laudable position. But is it enough?

As a litigator for twenty-five years I always took pride in my toughness, my ability to stand toe to toe with any lawyer, any firm, anytime. Now as a mediator for the past four years with a considerably greater number of strands of gray hair it has become clear to me that the John Wayne school of lawyering has some serious drawbacks, Clearly there are some cases which just need to be litigated. They are honest factual or legal disputes which require a judge or jury to make the ultimate decisions. Many of them involve important issues of personal rights or public policy. Conversely, the vast majority of cases do not.

The difficulty arises in the fact that virtually every case has some dispute that arguably just “has” to be decided by the court, thus the expression “see you in court”. The decision making process of which cases go to trial and which are resolved and at what stage they are resolved is generally driven by the lawyer. Although there may be some obvious outside pressures bearing on his or her decision -making such as the client or an insurance company, generally the lawyer is the main impetus of how the case is resolved. His or her abilities, experience, personality, training, financial position, philosophy and wisdom all guide the ultimate outcome of the case

For the past few years the Superior Court in San Diego has been engaged in studying the effectiveness of mediating cases early on in the litigation process. Preliminary statistics indicate that a large number of these cases settle at the mediation hearing with many more settling afterwards but before trial.

What can we as lawyers learn from the difficulties faced by our country as the result of the World Trade Center bombing? Litigation over the problems created by the attack on the United States has the potential of draining an enormous amount of our financial, judicial and emotional resources. It could engage many of our brightest lawyers and businessmen in activities which would be far better spent in attempting to seize the assets of our adversaries or to help the country regain it’s stable footing.

It’s impossible to say how all of these disputes will ultimately be resolved. But the rationale for a litigation moratorium carries over from the Sept 11th tragedy into our everyday litigation responsibilities. It has become increasingly clear that mediation is a cost effective, quick alternative to litigation .It works in a large number and variety of cases. It can be done by the parties and their lawyers simply agreeing to do it without filing a lawsuit. Or, of course, it can also be done by a judge two days before trial, with the parties kicking and screaming. Somewhere in the far reaches of my fading memory I recall a conversation I heard that began:

“Hey Jim, this is Bob. Listen I had a client come in yesterday…..
says your guy overstepped his lease agreement. Got any time to talk?…..we should be able to work something out…..Great!…how about noon on Friday at the Hobnob. I’m buying”

Even in Afghanistan, where the rule of law has broken down, tribal warlords sit in circles with their members mediating all manner of disputes quite successfully. In addition to the everyday disputes that comprise the bulk of a lawyer’s practice mediation has been used to resolve fishing rights between Indian tribes and local townspeople in Oregon. Agreements between homeless people, business people and social agencies have been hammered out by the mediation process. It’s routinely used in environmental issues.The work of former Senator George Mitchell in Northern Ireland also comes to mind

Why can’t we do more of this type of work? Isn’t it more personally and professionally satisfying than rattling our sabers as we ritualistically throw paper at our opposition in an effort to see what he or she is ”made of”? As I think back on it I think the lawyers who garner the most respect are the ones who get a good result for their clients with the least amount of noise. The ones who know the law, are congenial and conciliatory and who you don’t realize have taken you to the cleaners until days or weeks after the case is over. This in no way minimizes the necessity for litigation in the appropriate cases or the respect which is well deserved for good trial lawyers.

Let’s face it-litigation is sexy, exciting, heady, stuff. Yes, you may get the big bang or win the stunning defense verdict. But let’s be truthful-it also creates immense problems in terms of financial and emotional costs to all the parties not to mention the costs to society and the justice system. Lawyers are the guardians of our system of justice in the broadest possible sense. It is our responsibility to assist people in resolving their problems, not to create additional ones. Simply agreeing to put litigation off to a future date is commendable. But we need to go further and make a personal, moral and ethical decision not to file any lawsuit unless and until every possible effort has been made, including mediation, to resolve the matter without litigation. We need to start sitting around the campfire and talk to each other. Our country deserves no less.

Oh yes…… also makes the answer to the questions “What am I doing?” and “Why am I doing this?” much easier to answer. The answer? …..How about “ I’m doing some good”. Certainly more satisfying than being a tough old litigator.

Copyright©2001 Tom Adler

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