Has the rise of ADR affected the way advocates prepare and handle cases, or can we expect attorneys to continue their customary practices of pleadings, motions, discovery and trial preparation, until the day comes when the cases settle in spite of, or as a result of, those efforts? A lot of time and effort is spent on pre-trial activities that are not of much benefit even if a case goes to trial, and are even more wasteful if the case is settled. Is there a way of conducting litigation that might avoid some of that wasteful activity and lead the parties on a more direct route toward a negotiated resolution?
I’m not talking about what Professor Marc Galanter described years ago as litigotiation, which is a prevalent form of litigation that recognizes that most cases are eventually going to be resolved by a process of negotiated agreement, and uses all the processes of the court system as leverage and as aids to that negotiated outcome. I’m talking about a method of lawyering that avoids the court system altogether, except perhaps as a fallback if the ADR process fails.
The legal profession is only beginning to formalize such a process. Last year, the ABA released a book called Lawyering with Planned Early Negotiations: How You Can Get Good Results for Clients and Make Money, by John Lande. Lande shortens his ungainly book title to the acronym of PEN, for planned early negotiations. I’d just as soon tell clients I will try to resolve their dispute if possible without litigation, but I’m interested to see that somebody has tried to create some structure and guidelines for practicing law in this manner. Lande even includes a helpful CD full of form agreements and other documents that might be useful in this type of practice.
So what is lawyering with planned early negotiations? Basically it means the lawyer is going to advise the client from the outset that the lawyer is going to try to solve the client’s problem through negotiation, rather than a traditional adversarial approach to litigation. Clients are often reluctant to hear that message, instead usually wanting to know how their lawyer evaluates their chances of prevailing in court. But if we are honest with clients, we have to tell them in most every case, that the chances that their case will be resolved in court are fairly small. Most cases are going to be resolved by negotiated agreement anyway, so it makes sense to set the client’s expectations for that from the start. As long as we’re doing that, it makes sense to suggest trying to get to that point without litigation, a less familiar pathway for lawyers and clients.
To practice with the expectation of a planned early negotiated resolution might require changes to lawyer’s engagement letters and creative fee arrangements. Lawyers then have to get used to the idea of forming constructive relationships with opposing counsel, which will help in exchanging information with the other side in a cooperative and informal way. Attorneys have to reach out to the other side to agree on a process that is likely to resolve the dispute without litigation. Lande also includes tips on negotiating and other techniques that are familiar to people working in the mediation world.
Divorce lawyers have led the way in this field, building up an elaborate body of collaborative practices, including what is known as the participation agreement . Such agreements generally require that if the parties fail to reach a negotiated settlement, the first set of professionals will be disqualified from representing the parties in court. This gives parties and lawyers maximum incentive to succeed in settling the case, and little incentive to litigate.
Can such an approach take hold in the commercial litigation context? It sounds like the opposite of the way I was taught to litigate years ago, when a particularly aggressive style of litigation was in favor, one that considered it almost unethical to do anything that would make your adversary’s life easier. But it’s really not all that different from the way many litigators have learned to practice. We often send out a demand letter as an invitation to a negotiation as well as a threat of litigation. We are supposed to try to resolve discovery and other disputes without bothering the judge about every disagreement, and it’s usually in our clients’ interests to do that. All trial lawyers recognize that the vast majority of cases will end in negotiated resolution, so we act as settlement counsel in cases we are simultaneously litigating, and conduct ourselves in a way that is not going to antagonize the other side unduly so as to jeopardize the ongoing settlement negotiation. Some firms use separate settlement counsel and trial counsel working
simultaneously on a case, keeping each focused on their conflicting
The difference between the PEN process and customary litigation practice may come down to a decision at the outset of the case to put the threat of litigation into the background, instead of initiating a case by threatening or actually commencing a lawsuit. Corporate lawyers do that all the time. They can be just as aggressive as litigators, but they know they are employed to make a deal, that they might be blamed if they blow the deal, and that they will not be the ones to handle the case if the deal falls apart and litigation ensues. If business trial lawyers started adopting the PEN approach, they would have to start acting more like those corporate lawyers, which still allows them to advocate strongly for clients, but in the context of a planned negotiated resolution of the dispute.
In my litigation practice, I have had some success with an approach like the one Lande is describing. My fee is generally lower in such cases, but client satisfaction is generally higher, and I avoid the risk that can happen in litigation of a case getting bigger and more expensive than a client can afford, which can be disastrous for both the lawyer and the client. If I can provide the same or better outcome for a client without having to resort to a process that, let’s face it, is more fun for lawyers than it is for clients, what possible reason would I have not to try it?