Taking a difficult dispute to trial

When I told an attorney friend that I was writing about trial skills, specifically for new litigators, she commented, "Nobody goes to trial anymore." Clearly, that is not accurate -- barring some now-periodic COVID interruptions, the state and federal courts are full of civil cases being tried. Nevertheless, this is a common refrain heard from lawyers and business alike. You've heard it too: Nobody wants to go to trial. Trials are too expensive. Too risky. It takes too long to get to court. Arbitration or mediation are the only way to go!

This prompts the question whether civil trials are still an effective way to resolve difficult disputes. Without any hesitation, I say yes!

Let's consider some of the common refrains about trials as a means to resolve disputes:

Too risky. I will trust a jury or a judge to get something right as much or more than I trust a commercial arbitrator to make the correct call. The notion that one will get a wiser, fairer result from an arbitrator than one will get from a judge or jury is just not tenable. Further, the decisions of judges and juries are always subject to review on appeal when they get it wrong. Also, arbitrators vary greatly in their acumen and ability to analyze and decide cases. And there is always the "split the baby" issue. Often times, arbitrators, who are being paid by both sides and who often also work as mediators, will seek the path of least resistance, refrain from making the tough call, and render a middle-ground decision to resolve a dispute. In most cases, a tough call has to be made between right and wrong, tenable and untenable, strong claim and weak claim. I trust juries and judges to make those tough calls as much, or more, than I do commercial arbitrators.

Too expensive. It cannot be denied -- preparing and taking a case to trial is costly. But does it really cost more than commercial arbitration or other forms of alternative dispute in most cases? Commercial arbitration is not inexpensive and, in my view, rarely a less-expensive alternative to trial. Is a two-week commercial arbitration with arbitrators charging $500 to $600 per hour any less expensive than a two-week jury trial? Clearly not.

What about mediation? That's surely less expensive than trial. In the abstract, I am a strong believer in mediation and, especially, early mediation. It is cost-effective because it presents a true alternative to trial or arbitration and their associated costs. I always advise my clients to mediate. Stop paying lawyers, fix the problem, get back to running your business. However, early mediation efforts are often rejected by the client and, when pursued, rarely work. Usually, by the time the client comes to me, other ways of fixing the problem have been tried and failed, or the client legitimately wants to right a wrong, beat back an unjustified claim, or remedy real damage. An early mediation will likely not be fruitful. Further, risk -- more precisely, the real risk of going to trial and losing -- is usually the principal motivator of fair settlements. That risk is just not present at the commencement of most cases. It would be nice if all parties could sit down in a room with a skilled mediator before pursuing litigation and, over coffee, calmly, rationally, with the exercise of business judgement and foresight, resolve their disputes. Frankly, that is not the real world. And many disputes simply should not be so resolved. There are many battles that simply need to be won and many opponents that simply need to be beaten. So, mediation is good, and can be very cost-effective; but, only as part of an overall trial strategy, only when and where it makes sense, and only if it has a reasonable chance of working. A day sitting in a mediation that does not resolve a case because your opponent perceives no risk and has no incentive to settle is not cost-effective is a waste of a day.

It takes too long to get to trial. This can be true, especially given limited budgets and staffing in California courts. Arbitration may be a better alternative in this area. If you want something resolved very quickly, arbitration likely works best. However, you must accept the risks and costs of private arbitration noted above. Cases can be worked up by experienced trial counsel in a manner that lessens the impact of current court delays. At least here in San Diego, generally speaking and not considering the current COVID interruptions, the courts are not suffering from a lack of trial capacity. There is ample calendar room to try cases. But the courts here generally suffer from a lack of staffing and capacity to promptly handle motions. Demurrers, discovery motions and summary judgment motions will dramatically delay a trial date. Clean cases with minimal law-and-motion practice will get to trial fairly promptly. Experienced trial counsel can dramatically lessen the effect of current court delays by closely scrutinizing the need for extensive motion practice in any given case. (Is that demurrer really necessary? Will it resolve the case? Can I really prevail on the summary judgment motion?) Further, if necessary, discovery is propounded very early in the case, motions to compel, if required, can be scheduled and heard with timing that may not delay a trial.

Have a discovery plan and necessary discovery ready to go when you file. Serve the discovery as early as possible. Take necessary depositions promptly. Get discovery disputes teed up for resolution early in the case so they don't serve to kick your trial date. And don't play games with the other side around on discovery. Their discovery motions will just serve to delay your trial date. If you intend to pursue summary judgment, get going on the case and have the motion heard as early as possible. Advise opposing counsel early that you intend to pursue summary judgment, suggest that she get her discovery done as well, and that you will oppose any continuance request if she doesn't. Otherwise avoid motion practice if at all possible. I believe the problem with the courts is not the ability to handle trials but, rather, the capacity to promptly handle motions. Think strategically, get going on discovery early, avoid motions, the case will get to trial in a reasonable time frame.

Clearly, this issue is broader, more nuanced, and more complicated than presented in this article alone. Of course, the strategy in any given case must always be driven by the nature of the dispute and the needs of the client. I can also recognize that my view is prejudiced by the faith I have in courts and, in particular, juries to generally make the right call. But, in my experience, trials, and thoughtful, strategic preparation for trials, remain a practical, effective, often superior way to resolve difficult disputes. If a dispute can be resolved, thorough preparation for trial and the risk of trial will result in the best settlement. If a dispute cannot be resolved and a resolution must be imposed upon the parties by somebody else, a civil courtroom, in front of a jury or judge subject to appellate review, is the best place to go for that resolution. 