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.

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