Lately I have considered whether the civil justice system and, in particular, litigation attorneys approach many cases wrong. In particular, I wonder about the notion of 'winning' and 'losing' in litigation and how it is measured.
Outside of litigation, the focus seems to be more on conflict resolution than winning a dispute. For example, when someone gets into an argument with their spouse or significant other, when it's all over, they usually do not care who 'won' the argument. What they care about is that they resolved the conflict. Period. Victory is when hostilities cease and you want to be around each other again.
In contrast, in litigation, attorneys approach conflict as competitions where someone wins and someone loses. This is reflected both in the types of people who choose to become litigators and how those people practice. It starts with the people who choose to be litigation attorneys. There are generally two categories of litigators: (1) those who fell into it because they backed into going to law school and got a job working for a litigation firm; and (2) litigators who actively chose the profession.
People in the first category often do not stay litigation attorneys for more than a few years. They discover that they do not like litigation and switch jobs to a non-litigation position as soon as they can find one. People in the second category, which I fall in, planned their life around becoming a litigation attorney long before they passed the bar exam.
In my case, I knew that I wanted to be a trial lawyer by the time I was fifteen. I started college as a business major for kicks and giggles, but switched my major to history, something I actually liked, so I would make better grades to ensure that I would get in law school. Once I started law school, there was never a doubt what I would do. I was going to litigate and ultimately try cases. Why? I didn't know why. I just knew that's what I wanted to do.
Now I think I know why. I wanted competition. I loved to compete as a kid. But when everyone else started growing in the 6th or 7th grade, I did not. I was out of organized sports by junior high. I was just too small--still under 5 feet and 90 pounds when I started high school. I still have my first driver's license that proves it. I had to sit on a phone book to drive. I was like Owen Meany, minus the charisma. And I hated it. I wanted to compete in sports.
You get people like me in litigation. Runts who missed their chance to compete as kids. You also get ex-jocks who did not miss their chance, but still love to compete. It makes for some outstanding competition. I've had some great courtroom battles with outstanding lawyers. But we were not trying to resolve a dispute. We were trying to win a competition.
You see this attitude in literature about law practice and litigation."We're not here to do (fill in blank), we're here to win." You see it written again and again. And it's generally true. Most of us are there to 'win.' But is that the way it should be? Is it best for the clients? What's the emotional toll on parties who are embroiled in litigation for years? There is a heavy price to pay, it's just hard to measure. Likewise, having a conflict resolved has immeasurable benefits to the parties.
Statistics prove that most civil actions do not go to trial. For many years, I viewed this as a damn shame. A good ten years ago I was practicing before a Hinds County Circuit Court judge. We were on the eve of trial, and the judge was encouraging the parties — not the lawyers — to settle the case. The judge's sales pitch was along the lines of "I've been watching juries decide cases for years, and you don't want to put your case in the hands of a jury." At the time, I had no idea what the judge was talking about.
But the more I learned about decision making and the more focus groups I conducted, the more I appreciated the benefits of settlement. I love conducting focus groups and have learned to conduct them myself inexpensively. Focus groups are interesting and fun. It's a lot like a trial without the crushing anxiety and pressure. Here are just a few things that I have learned from focus groups:
Reading books like Daniel Kahneman's Thinking Fast and Slow, Jonah Lehrer's How We Decide, and Dan Ariely's Predictably Irrational: The Hidden Forces That Shape Our Decisions helped me understand why juries are so unpredictable. Here's just one example of the messiness of decision making from David McRaney's You Are Not So Smart. Studies show that people who are asked to make a decision will decide differently based on whether there is a box or a briefcase sitting on the table in the room where they are located. Go back and read that sentence again. Now, think about it. I don't know about you, but it makes me worry that I might lose a case because I had the wrong kind of briefcase. Or suit, or pen, or whatever.
My point is that most litigators are blissfully unaware of where they are headed if they cannot get a case settled. It would be an oversimplification to say that jury trials are crap shoots. It would be accurate, however, to say that we have little comprehension of what all may influence a juror's decision. A trial can result in a decision made for unpredictable reasons where the people who made the decision do not fully understand the basis for their decision. This phenomenon is not unique to juries. It applies to all decision making. I am just suggesting that jury (and judge) decision making is not exempt.
In addition to leading to a rather unscientific resolution, the litigation process takes a toll on the litigants. Lawyers are not the only ones who can get emotional about a case. The parties are almost guaranteed to be emotional about a case. Those emotions take a toll, particularly when a case drags on for years as often happens. A quicker resolution would have tremendous emotional benefit to the parties.
So instead of in it to win it, should we be in it to resolve it? Should victory in litigation be the resolving of the dispute–the same as in a normal relationship? More and more I am thinking that the answer is yes. Except that's just not how the system is set up or works. We litigate in a system tailor-made for competing, not efficiently resolving disputes.
Once we're into a case, we feel like we have to act like the opponent's case is meritless. Some lawyers actually always believe the other's side's case is meritless. They aren't necessarily good lawyers, since they never see the freight train coming. But they exist. On both sides of the 'V'. Other lawyers will privately admit that the other side might win. Just never to the judge or opposing lawyer. These are good lawyers. They often see the freight train coming and get off the tracks.
The rarest breed of lawyer are the lawyers who will openly admit to the opposing counsel that each side's case has its pro's and con's and it could go either way. Lawyers in this category tend to be great lawyers who are revered by co-counsel and opposite counsel alike. Of course, it's hard to pull off. If you've ever done it, you know that at first, you feel like something bad may happen because you are giving away the Colonel's secret recipe.
But invariably, nothing bad happens. It improves communications between the lawyers and thus, the opposing sides. It distorts the notion that "we should win" and "you should lose." Somehow, it becomes more about resolving a dispute. And once you get it there, you've got a much better chance of actually resolving the dispute. But it's hard to get there. Particularly among the ultra-competitive who become litigators.
So what's the answer? I'm not sure. ADR may have been an attempt at creating a better system. But ADR went totally off the tracks with forced arbitration from pre-dispute adhesion contracts and arbitration forums that openly tilt for business interests (think AAA and NAF). The result is that people don't trust ADR.
It's almost like every case needs a neutral. Not a judge, who is an umpire and doesn't have time to serve as a neutral. But more than a mediator, who is called in–often at the last minute–to try to help resolve a case. A neutral would be someone with no allegiance to either side who is actively working to bring the parties to a resolution whether the parties ask for it or not. Yeah, I get it. Who would pay the neutral? If this was the easy answer, I'd be telling you here's the easy solution. I'd just like to see people talking about these issues and discussing whether there are ways to improve the system. Nothing will change as long as everyone accepts things the way they are.