Abraham Lincoln, our country’s famous homespun philosopher, lawyer and President, once wrote, “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough.” These may seem like unexpected words coming from someone paid to initiate lawsuits, but it continues to be sage advice today.
While information from the immediate past is not yet compiled, available data on litigation trends provide valuable insight as to why President Lincoln was on to something. According to an October 2008 Bureau of Justice Statistics Special Report, state courts of general jurisdiction disposed of approximately 26,950 general civil cases (tort, contract and real property) through a jury or bench trial in 2005. You may find it shocking to learn that these trials made up less than a ½% of the over 7.4 million civil claims which were filed nationwide that year.
The Time and Cost of Litigation
Why is it so rare for parties to reach a jury or bench verdict? Litigation takes time and money. Generally, the time from filing a complaint to reaching a jury or bench verdict takes many months, if not years. Additionally, the specific outcome is uncertain for both sides. Meanwhile, the hard costs involved with litigating complaints are rising, including court administrative charges, ADR costs and attorneys fees. For businesses involved in litigation, soft costs like lost productivity, time spent working with lawyers and insurance adjusters, and the possibility of negative publicity, may also have a severe impact. Early negotiated resolution of a conflict is usually the more financially prudent alternative to trying a case to the end.
Likewise, public access to court time is being curtailed by tightening governmental budgets. Many courts must trim their spending and are implementing cost-cutting measures including temporary courtroom closures, reducing operating hours and furloughing staff. Such actions mean that the courts must allocate their limited resources to give priority to the most serious, complex or impactful lawsuits first. Taken in conjunction with burgeoning dockets, judges must push more standard legal fare, such as claims resulting from car accidents, and straightforward breach of contract actions, to a non-emergent back burner, and encourage parties to use out-of-court alternative dispute resolutions like mediation.
If you are faced with a situation that has resulted in, or appears to be headed toward, a lawsuit, think seriously about what you can do to resolve the issue amicably now before continuing down the legal trail. A better route may be to try to implement the McConnell Maxims, a list of legal leadership virtues compiled by Edward McConnell, president emeritus of theNationalCenterfor State Courts:
- Use tact
- Respect Everyone
- Listen and hear
- Be responsive
- Be confident
- Be flexible
- Consider timing
- Use imagination
- Create urgency
- Do job well
- Seek productivity
- Use common sense
- Work hard
- Play by rules
- Take calculated risks
- Earn trust/confidence
By putting forward a best effort to curtail a lawsuit before it is filed, would-be litigants may find themselves with more money in their pockets, less frustration and the ability to move forward sooner. When acting as a peacemaker, an attorney can help you assess options and work through any possible legal implications while attempting to resolve your problem outside litigation. If a lawsuit becomes unavoidable, bear in mind the wise words of another revered legal scholar, Felix Frankfurter, Associate Justice of the U.S. Supreme Court, who wrote, “Litigation is the pursuit of practical ends, not a game of chess.”
Acadia is pleased to share this material for the benefit of its customers. Please note, however, that nothing herein should be construed as either legal advice or the provision of professional consulting services. This material is for informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or representation is made as to accuracy or completeness. Recipients of this material must utilize their own individual professional judgment in implementing sound risk management practices and procedures.