Monthly Archives: May 2013

The Law of the Hammer: The Trial Option

“If all you have is a hammer, then everything looks like a nail.” This quote has been variously attributed to author Mark Twain, financier Bernard Baruch, philosopher Abraham Kaplan, and psychologist Abraham Maslow, and appeared in print in Maslow’s work, “The Psychology of Science.” There is a tendency for individuals untutored in the law to seize upon the “trial option” as though it were the first, the best, or the only remedy.

As a trial lawyer, I would have to concede that the “trial option” is one that should be considered along with other approaches. It should never be perceived as the only remedy, seldom as the first option, only sometimes as the best option.

So what is trial? It is simply a formal process by which disputes can be resolved without the agreement or even cooperation of the parties. You can ignore a conversation, meeting, letter, phone call, or negotiation. If you ignore a trial, however, you do so at your peril. One of the hallmarks of trial, in contrast to, say, negotiation or mediation, is the shift in control from the parties to a neutral decision-maker. Failure to participate simply means that the matter will be resolved without you. In earlier times, failure to respond to legal proceedings, could, as in the case of Giles Corey during the famous Salem Witch Trials, subject the obstinately silent party to “peine forte et dure” – being placed in a box with heavy weights placed upon you until you entered a plea – or died. It took Giles Corey two days to be crushed to death. Nowadays, failure to answer the legal “Complaint” of the party suing you can result in a default judgment. In other words, if you don’t respond, the other side gets what it has requested.

What are the other options? In the thousands of cases I have resolved duing my career, the choices seem to be:

1. Doing Nothing. The Null option. It is important to always realize that, for the plaintiff, pursuit of trial is a choice. It is optional. Renowned trial lawyer, Louis Nizer, once described the choice to pursue a claim for defamation this way (I paraphrase): “think of the insult as if you had mud splashed on your clothing. If you try to clean it away while it is fresh, you will just streak your clothes and the stain will be with you forever. But if you do nothing and wait until the mud dries, you could flick it off and it would leave no mark.” Sometimes time is a better healer than the proceedings in a courthouse. You have the “null” option. With every trial there is a huge opportunity cost: the loss of the positive uses to which you could have put the time and energy in moving forward, rather than expending them in looking back and adjudicating old grievances.

2. Communication. I suppose it should – but doesn’t – go without saying: have you tried to work things out before using the “nuclear” option of trial? Sometimes, when you are ready to do it, a straightforward conversation can alleviate a lot of woes that otherwise get saved up to vindicate oneself at trial. Sometimes, the best way to avoid playing “the victim,” is honest, direct communication with the other party to your dispute.

3. Negotiation. The virtue of working things out between the parties is three fold: (i) it keeps the parties empowered rather than shifting decision-making to a third-party neutral, whether it be judge or arbitrator; (ii) the parties have much more flexibility in fashioning a resolution than any judge or jury; (iii) working through issues can leave intact working relationships in a way that litigation cannot.

4. Mediation. I have been actively mediating as part of my practice since 1991. Mediation, like negotiation, leaves the parties to a dispute in full control of the outcome. This maximizes flexibility in terms of working things out. The defining trait of a mediation is the presence of a neutral third-party intermediary or “go-between” who assists the parties in communicating by filtering out the too often heated exchanges and focusing on the “interests” of the parties, rather than their “positions.” I have described the process as “bringing people together – by keeping them apart.” Sometimes filtered communication that focuses on the constructive shared interests of the parties and eliminates the emotional, destructive components often associated with perceived betrayals can bring parties together. This is often accomplished by meeting in separate caucuses and letting a trained and trusted intermediary ferry communications back and forth exploring common interests. Mediation is so effective that it is now mandated as part of the litigation process in federal and state trial courts. You must try to work things out before resorting to trial.

5. Arbitration. Arbitration is more like a “private” trial than a mediation, with a “private judge” called the “arbitrator.” While the parties retain all their power to settle or not in a mediation, an arbitration turns decision-making power over to a third-party neutral decision-maker or arbitrator. The proceedings may be somewhat less formal and the procedures may be the product of contractual agreement or negotiation between the parties, but make no mistake about it, an arbitration award once made will likely be given full force and effect by the courts. The parties may agree on an arbitrator or a firm with a number of arbitrators or upon a process for selection of the arbitrator (including appointment by the court), but, in the end, the arbitrator has the powers given to him or her to make decisions and bind the parties. Washington law gives strong support to arbitrators and insulates them from legal process (like subpoena) to the same extent as judges.

6. Trial. Well, you asked for it. Trial gives you the whole panoply of legal rights. You will generally, depending upon the county and type of proceeding, have a six to eighteen month wait from filing your legal action to getting to a trial by jury. The time is not just spent on waiting. During the pre-trial phase, each side conducts discovery to learn the facts and evidence of the case. Discovery tools include: depositions (See my previous blog entry on Preparing for Your Deposition); interrogatories (written questions to be answered under oath); requests for production (requesting inspection of documents, things or premises); Civil Rule 35 medical examinations (in personal injury cases, the opposing party can often compel your examination by a physician of their choice or one appointed by the court); requests for admission (requesting that certain facts be admitted where, if denied by the responding party but proven to be true later, shall shift fees and costs of making that proof); subpoena (compelling production of documents and testimony, at trial or deposition, from parties and non-parties). Once the facts have been uncovered or “discovered” by the parties, each side may have a series of motions, attempting to resolve legal issues, exclude evidence, disqualify witnesses, or limit how evidence is presented or excluded. The decision-maker, a judge or jury, will decide the issue based upon the evidence. Time for half-measures or compromises is over.

These are your options. The Trial Option is but one tool that may be employed in the efforts you make through counsel to try to bring matters to a satisfactory resolution. There is a saying: “Justice should not be so perfect that any person can go before the magistrate without great fear and trembling.” The essential meaning I take from this: even if your case is just, justice is imperfect and one should seek a trial only with reluctance – as a last resort.

What are You Afraid of? A Primer on Going to Trial.

Trial and error. Trials and tribulations. Trial by ordeal. Trial. If you are a client, there is often terrible anxiety associated with “going to trial.” Lawyers also feel this anxiety. The case is out of their control once it is in the hands of the jury. Who knows what will happen then?

For lawyers in civil practice, much of their effort consists of, in the first instance, attempting to persuade the “other side” of the righteousness of your (their client’s) position. This often takes the form of attempting to persuade an insurance adjuster or adverse party to compensate you in a fair, full, and timely fashion. This, of course, is hard to do since the adjuster is paid by the insurance company to get the matter resolved at the least expense – and is in no particular hurry to do so. Adjusters are not rewarded for paying out the most money they can, even if such payment would be fair. The adverse party, of course, is motivated by the desire to thwart your desires. You are the opposing side. Consider how “tilted” the “playing field” of this negotiation is: you are negotiating with someone who is paid to oppose you and, in many cases, whose career trajectory only improves with the number of claims resolved at the lowest payout possible. No lawyer should feel defeated by the fact that persuasion sometimes falls short in such a context. No attorney can guarantee that the opponent will treat you fairly. As a client, you must, at a minimum, understand that if the settlement is not to your liking, taking the matter to trial is the alternative. While the first choice of settlement ends matters, it may not do so on a satisfactory basis that enables you to feel good about it. Trial, however, is no guarantee that the outcome will be better than an unsatisfactory settlement; an outcome after trial can be better or worse than the settlement you rejected as unsatisfactory.

Still, the decision to”go to trial” for a client is often filled with anxiety, particularly for a client for whom the courtroom is an unfamiliar, if not fearful, place. Many lawyers have worked for years in law school and practice to hone their skills, like a platoon whose members have gone through basic training and war games but still have yet to face battle. Even good lawyers have some anxiety with trial – and this is often true of some of the best, who channel their anxieties into superior case preparation. It would be very strange if such a lawyer – including many fine lawyers with some trial experience – did not feel some anxiety over the prospect of trial. Such anxiety can be a good thing if it focuses one’s efforts on anticipating challenges and preparing thoroughly. There is also the “Imposter Phenomenom” where many lawyers, who throughout schooling founded their own self-esteem and confidence on external criteria of self-worth (accolades, awards, grades, etc.), lack the confidence in their ability to succeed in trial. Will they be found wanting?

What are the things to worry about?

First, trial (unlike mediation, for instance) involves disempowering the parties and placing responsibility for decision-making in a third-party neutral, usually a judge or arbitrator. Fear of powerlessness is certainly a legitimate concern. Suppose the judge or jury is predisposed against your case? Suppose the judge or jury, in whose hands the future of the case rests, is not up to the task? These are legitimate worries. A person with a good case should be concerned that their case is resolved on its merits.

Second, fear of failure figures prominently on the eve of trial. What if you are “blind sided” by issues that you have not anticipated? What if you do poorly, reveal in a humiliating fashion your shortcomings as an attorney, client, truth-teller, or witness, or let down your colleagues, family members, co-workers, friends or clients? There is an expression: “You are only as good as your last trial.” Even successful attorneys fear failure. Sometimes this failure may be perceived as simply getting a disappointing outcome. In my experience, however, it is better to measure success against what was available by way of settlement. Trial does not guarantee perfect justice or even a better result than what was offered in settlement. It simply moves the power to reach an outcome from the parties to the judge or jury.

Third, fear of being judged and being found wanting can also be applied to the merits of the case. Earlier I wrote that you might be afraid that the case would not be decided on its merits. Now, I suggest that there may be reason to fear that it IS decided on its merits. In other words, if the jury learns the complete – I mean absolutely full and complete – truth, perhaps the outcome will not be favorable. One may simply fear that the jury will take the side of the other party. “Losing” means that the jury did not agree with your view of events based upon the evidence admitted; “winning” means that the decision-maker/s agreed with you. Sometimes in our deepest core, we know that the case is not so one-sided as we would have others believe – and which, in the heat of trial or the fog of war, we have ourselves come to believe. The jury has not gone though the prolonged odyssey regarding the case that you, the client, or you, the client’s lawyer, have. The jury is likely to see things at a high level of abstraction, free of emotion born of involvement, investment and interest. They may well view the case as you, yourself, have in fleeting moments of insight or fear. In short, resolving a case on the merits may not please either side completely. As Lincoln said so eloquently in his Second Inaugural: “The prayers of both could not be answered, that of either answered fully.”

Fourth, fear of being left in an untenable financial or legal position. Trials are expensive mostly because they are time-consuming and often involve retention of expert witnesses at significant cost. They also involve a huge lost opportunity cost: the value of time expended that could have been invested moving forward rather than looking backward in an effort to resolve through trial the issues that arose in the past. On top of that, the non-prevailing party is liable for payment of the prevailing parties taxable costs including the cost of filing, service, and the cost of depositions to the extent entered into evidence. Such “taxable” costs are listed in RCW 4.84.010. In some cases where their are “fee-shifting” provisions, a party may be responsible for the reasonable attorneys’ fees of the other side. This can be a particularly bitter responsibility on top of a disappointing outcome and can give rise to a financially significant risk.

Trial should not be the subject of irrational fears. Submitting one’s case for consideration and decision by a jury of one’s peers can be the right choice. It should be made in consultation with counsel after a thorough review of the evidence and the risks and uncertainties of a trial. Evaluating the strengths and weaknesses of your case, your witnesses, your evidence, and yourself is essential. One good rule of thumb is to assume that anything you know or fear will become known about your case will, in fact, come out at trial. It is very, very difficult to control the truth or to try a case on anything less than the whole truth in context. In the end, trial is an option, but is not the only option, as we shall consider shortly.