By Bill Hussmann
Why do we wait so long?
Just, speedy and inexpensive?
While hoping for outcomes quite great,
The lawsuit—they all start to hate!
It’s been going for years,
and the costs bring on tears.
Could it be we should NOW mediate?
It has become common knowledge that civil cases are rarely resolved by trial. For example, the 2015 Annual Report of the 7th Circuit Court of Appeals shows that in 2015, district courts within that circuit closed 24,669 cases. Of those cases, 198 were closed by a jury trial and 47 were closed by a non-jury trial. These numbers bear out the often quoted mantra that only “1 percent go to trial.”
So if 99 percent of our civil disputes can and will be resolved in some manner short of trial, it behooves us as lawyers to figure out the most efficient way to do so. In the last decade at least, many courts and commentators have written articles and drafted rules directed at “expediting” litigation. At the risk of seeming pedantic, there is an important difference between what is “efficient” and what is “expedient.” The definition of “efficient” found in Webster’s dictionary states: “productive of desired effects; esp: productive without waste.” “Expedient” is defined, however, as “characterized by concern with what is opportune; especially, governed by self-interest.”
For those of us in the dispute resolution business, “desired effects” — justice — must remain an important component of the outcome if the system is to be perceived as fair and useful. In this writer’s 27 years of settlement conference experience, in most cases, one or all of the parties left a “successful” settlement conference conducted in the middle of litigation unhappy because “justice” was not done. The resolution they agreed to was often not “justice-driven,” but was more frequently merely an expedient compromise — the costs and risks of trial were too much to bear to be certain that justice would prevail.
Perhaps unhappiness with compromised outcome is just an inevitable part of a dispute itself. Your client, having felt a blow to their sense of justice, is told to just “walk it off” and keep on going with their life. However, if our clients feel that “justice/desired effects” is secondary to expediency in every case, how much confidence can they repose in their attorney or their court system?
Is there a way to see that “justice/desired effects” more frequently predominate over “expediency” in the resolution of disputes? This writer will advocate EELIM — early educational lawyer-involved meetings. This means resolution of many disputes BEFORE litigation is initiated. While there is no question that interrogatories, requests for production and depositions can be essential fact-finding tools in most cases if justice is to be done, must we wait until after filing suit to have frank discussions and exchanges about the material facts that will govern the outcome of the dispute? Should we wait to help our clients understand the remedies available to them until after we are in the midst of litigation?
There are many impediments to EELIM. Most lawyers’ calendars are crammed with impending deadlines, making early discussions with clients and opposing attorneys difficult to schedule. Emotions between the parties are at their highest in the midst of the dispute. Facts may be least clear when opposing parties have very different recollections of what was said and done, and none of those recollections have been tested for accuracy. Education of the client on what the law may provide as a remedy can be perceived by the client as being disloyal to his/her claim
And clearly not every dispute is amenable to EELIM. However, in this author’s experience, many types of disputes can benefit from EELIM. Employment issues, many types of contractual and business claims, creditor and collection problems, and estate controversies often have limited remedies available. These are the types of claims where unhappiness with the traditional litigation process, where the parties are left with the shells while the lawyer has consumed the oyster, often occurs.
Many of these types of disputes allow or require some early discussion of resolution. Employment disputes frequently require agency-administered conciliation attempts. ERISA and insurance claims allow for reconsideration of benefit denials. While these activities are frequently just seen as “prerequisites” to litigation, serious and early use of these tools do provide a vehicle to arrive at a just result before the costs of further proceedings require an expedited resolution.
Notwithstanding that early intervention is difficult to do, it might be prudent to ask a few of the following questions at your initial conference with the client:
• What outcome do you seek to obtain here?
• Can I explain to you what the law and the practicalities might allow you to recover?
• Should you and I meet with the other parties quickly to talk?
• Should we discuss the use of a neutral party or arbiter early on and before we have to file suit?
• Is there a chance to meet with an administrative agency to resolve this early?
Over this author’s career, I am continually impressed with so many members of the bar. You are incredibly well-trained and smart. There is a lot of experience, and where the attorney is younger, lots of experience to draw on nearby. Lawyers working out things with other lawyers is a time-honored tradition and efficient. Working hard at the pre-suit stage can leave your client happy that the outcome was just and accomplished without litigation. Look for EARLY opportunities to resolve the dispute. Rule 1 of the Rules of Civil Procedure in both the state and federal versions use these words in this order: “just, speedy and inexpensive.” Perhaps not having to use the Rules of Civil Procedure at all may accomplish this goal best of all. Our bar is well equipped to get the job done.•
• Bill Hussmann is a former U.S. magistrate judge in the U.S. District Court for the Southern District of Indiana who joined Kightlinger & Gray’s Evansville office in 2016 after retiring from the bench. Hussmann focuses his practice on alternative dispute resolution, as well as litigates a variety of civil claims for corporate clients. The opinions expressed are those of the author.