Very nice site!

Very nice site!

I agree wholeheartedly that lawyers should advise clients of the ADR options. In my juris., (Multnomah Co., Oregon) every party is required to either mediate, arbitrate, or do a judicial settlement conference. It’s an SLR. And I certainly agree that one should settle where possible; 99 times out of 100, it’s the rational course of action.

I just worry about ADR, arbitration in particular. I hate seeing the rules of evidence go out the window; they’re there for a reason. Arbitrators always say, “I’ll allow it”, when presented with hearsay or unauthenticated documents. I just don’t trust that they can discount evidence of questionable provenance. The old you-can’t-unring-a-bell line goes for arbitrators, too. And when they screw up, it’s so hard to object unless they get something so wrong that it’s blatantly obvious. There’s a reason that we have appellate courts; if the rules for appealing a judgment at trial were the same as the rules for objecting to an arbitration, there would never be a successful appeal. By enacting such tough rules about objections, we’re assuming that arbitrators get it right more often than judges or juries, which I don’t think is the case.

I suppose by this time ADR is an unstoppable trend, and probably the best thing, given society’s unwillingness to fund the court system to the levels it really requires. I just hope we don’t rue the day that we gave up on trials.

I agree wholeheartedly that lawyers should advise clients of the ADR options. In my juris., (Multnomah Co., Oregon) every party is required to either mediate, arbitrate, or do a judicial settlement conference. It’s an SLR. And I certainly agree that one should settle where possible; 99 times out of 100, it’s the rational course of action.

I just worry about ADR, arbitration in particular. I hate seeing the rules of evidence go out the window; they’re there for a reason. Arbitrators always say, “I’ll allow it”, when presented with hearsay or unauthenticated documents. I just don’t trust that they can discount evidence of questionable provenance. The old you-can’t-unring-a-bell line goes for arbitrators, too. And when they screw up, it’s so hard to object unless they get something so wrong that it’s blatantly obvious. There’s a reason that we have appellate courts; if the rules for appealing a judgment at trial were the same as the rules for objecting to an arbitration, there would never be a successful appeal. By enacting such tough rules about objections, we’re assuming that arbitrators get it right more often than judges or juries, which I don’t think is the case.

I suppose by this time ADR is an unstoppable trend, and probably the best thing, given society’s unwillingness to fund the court system to the levels it really requires. I just hope we don’t rue the day that we gave up on trials.

I appreciate this discussion, Brett. Does every plaintiff in your jurisdiction have to “go through the ADR process” or merely certify that they’ve had it explained to them, with the option to skip ADR?

As I argued in Counselors Oughtta Counsel (Not Conceal), I believe every lawyer, as fiduciary and counselor, has an obligations to discuss in good faith the option of using mediation or other ADR, rather than litigation. Because the vast majority of lawyers failed to do that — and many actively discouraged ADR if the client asked about it — some jurisdictions have wisely required that litigants must all be given the option.

I think we are a very long way from the collapse of the common law system due to the lack of trial. Lawyers consider the possible evolution of the law in their settlement negotiations. The Study here notes that there were about 19,000 jury trials in 22 states where info was available for 2001. In general, I’m still with Abraham Lincoln — when possible, settle.

I appreciate this discussion, Brett. Does every plaintiff in your jurisdiction have to “go through the ADR process” or merely certify that they’ve had it explained to them, with the option to skip ADR?

As I argued in Counselors Oughtta Counsel (Not Conceal), I believe every lawyer, as fiduciary and counselor, has an obligations to discuss in good faith the option of using mediation or other ADR, rather than litigation. Because the vast majority of lawyers failed to do that — and many actively discouraged ADR if the client asked about it — some jurisdictions have wisely required that litigants must all be given the option.

I think we are a very long way from the collapse of the common law system due to the lack of trial. Lawyers consider the possible evolution of the law in their settlement negotiations. The Study here notes that there were about 19,000 jury trials in 22 states where info was available for 2001. In general, I’m still with Abraham Lincoln — when possible, settle.

I agree, betting the farm on a trial is asking for trouble. I just think that maybe the shadow that you reference is getting a little small. There is a place for justice in civil litigation, and it’s not to be found in ADR. There’s also the fact that our common-law system relies on precedent, which ADR doesn’t supply. We’re fine now, but what happens in 50 years? I think ADR has its place, but that people should not be discouraged from going to trial when they are in the right. In my jurisdiction, every plaintiff now has to certify that he has gone through the ADR process before getting a trial date. At some point, ADR, if pushed too hard, begins to infringe on people’s right to have their day in court.

I agree, betting the farm on a trial is asking for trouble. I just think that maybe the shadow that you reference is getting a little small. There is a place for justice in civil litigation, and it’s not to be found in ADR. There’s also the fact that our common-law system relies on precedent, which ADR doesn’t supply. We’re fine now, but what happens in 50 years? I think ADR has its place, but that people should not be discouraged from going to trial when they are in the right. In my jurisdiction, every plaintiff now has to certify that he has gone through the ADR process before getting a trial date. At some point, ADR, if pushed too hard, begins to infringe on people’s right to have their day in court.

I don’t remember arguing that every trial is bad and every settlement is good. I’m strongly against nuisance suits (personally won the first case in our region imposing major financial penalties for a frivolous claim in a personal injury case), and I believe courts are far more likely now than 20 years ago to declare a case to be frivolous. Furthermore, the study says that summary judgments have also increased.
There is nothing happening now that prevents a litigant from taking a ”principled stand.” But, thankfully, clients have learned that there can often be better ways to “win” or to cut their losses than by betting the farm in what you call “crapshoots.”

I don’t remember arguing that every trial is bad and every settlement is good. I’m strongly against nuisance suits (personally won the first case in our region imposing major financial penalties for a frivolous claim in a personal injury case), and I believe courts are far more likely now than 20 years ago to declare a case to be frivolous. Furthermore, the study says that summary judgments have also increased.
There is nothing happening now that prevents a litigant from taking a ”principled stand.” But, thankfully, clients have learned that there can often be better ways to “win” or to cut their losses than by betting the farm in what you call “crapshoots.”

Isn’t it a little unfair to compare a trial to a root canal or death? The latter are outcomes to be avoided at all costs - they are unequivocally negative. Trials are not necessarily so. Yes, they are crapshoots, but what happened to the principled stand? ADR is great for some disputes, but what about the case where one side is completely wrong on the facts and the law, and refuses to see that? Some cases are appropriate for trial, and those cases are harder and harder to actually get to trial. I’m thinking in particular of the nuisance suit - employment or other fact-intensive allegations hard to defeat on summary judgment. If the defendant is a deep pocket, these suits often get settled instead of going to trial, even though the plaintiff deserves nothing. Those settlements are the cost of the current trial-unfriendly system.

Isn’t it a little unfair to compare a trial to a root canal or death? The latter are outcomes to be avoided at all costs - they are unequivocally negative. Trials are not necessarily so. Yes, they are crapshoots, but what happened to the principled stand? ADR is great for some disputes, but what about the case where one side is completely wrong on the facts and the law, and refuses to see that? Some cases are appropriate for trial, and those cases are harder and harder to actually get to trial. I’m thinking in particular of the nuisance suit - employment or other fact-intensive allegations hard to defeat on summary judgment. If the defendant is a deep pocket, these suits often get settled instead of going to trial, even though the plaintiff deserves nothing. Those settlements are the cost of the current trial-unfriendly system.