Conflict Resolution

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I spent the day in the jury room at LA Superior Court downtown today, doing my one day of service.  The chairs were comfortable, the TVs were (thankfully) off for some reason, the wifi was free, and the court personnel were friendly and almost entertaining.  The court makes the process about as pleasant it could be for an experience that feels like being institutionalized for almost 8 hours.  And the best part was that I did not get called to a single courtroom all day, so was excused without even being subjected to voir dire.  A large proportion of my fellow jurors also escaped without being asked to serve.  This reminded me that the beauty of jury trial sometimes is not the jury trial itself, but the fact that jury trial hardly ever seems to happen.  That’s certainly the beauty of it from the jurors’ point of view, but it can also look that way to the litigants.

A lot of ADR people tout the benefits of mediation or arbitration by comparing these procedures to the horrors of litigation.  I’m usually with them when we’re talking about the horrors of discovery and motions, but I part company when it comes to jury trial. I think we should be proud that we are pretty much the only country that retains the jury for civil litigation, and that we have enshrined the right to jury trial in civil cases in the Constitution.  Like the people with bumper stickers saying they would not give up their Second Amendment rights until they are pried from their cold, dead fingers, I say we should feel just as strongly about our Seventh Amendment rights.   But in addition to taking pride that we are a democratic enough nation to submit private legal disputes to ordinary citizens for decision, I also value the right to trial by jury as a settlement tool.  The thing that many ADR proponents forget when comparing the virtues of simplified procedures like arbitration to the complicated processes required to submit a case to the jury (the jury fees! the voir dire questions! the jury instructions! the side bars! the rules of evidence! the theatrical opening and closing statements!)  is that the jury trial in most cases never actually happens.  But the prospect of jury trial looms large in everyone’s minds, and helps induce and shape a settlement. From the trial lawyer’s point of view, it’s not so much that we enjoy trying cases to a jury more than presenting them to an arbitrator or discussing them with a mediator (though we usually do).  The point is rather that the right to a jury trial is a big stick that a trial lawyer never wants to give up. It is our clients’ possession of their precious rights to a jury trial and an appeal that helps achieve a settlement. And if a party gives up its rights too early, by signing an arbitration agreement for example, what happens is that they are more likely to end up in a full-blown hearing with an unpredictable outcome, rather than a settlement, over which the client has some control.

In arbitration, it is precisely because the procedures are simplified, and perhaps even more so because the arbitrator is generally happy to accommodate everyone’s convenience in scheduling a hearing, that a hearing is much more likely to take place.  In court, however, cases settle more often when courts stick to firm trial dates, and force the parties to prepare extensive witness and exhibit lists, voir dire questions, and jury instructions.  Partly for those reasons, it is increasingly rare that cases go to trial.  Nowadays, when a case is filed in court, the parties expect that it is going to get sent out to mediation at the first case management conference, and if it doesn’t settle there, then it is probably still going to settle somewhere down the line. The odds that any particular case is going to a jury are pretty close to nil. And yet one of the main reasons for that is that the parties continue to insist on their right to trial by jury. I would not expect parties to give up that valuable right until their cold, tired fingers are wrapped around the pen they use to sign the settlement agreement.

(Time magazine photo)