Latest Thoughts

Conflict resolution, not litigation

I prefer to describe my practice as “conflict resolution” rather than “litigation.” It’s not because I have any objections to filing or defending lawsuits, and I am not at all adverse to taking cases to trial. But “litigation” connotes a lot of activity in between that is not only wasteful, but actually counter-productive to the goal of resolving the dispute. (I’m thinking of discovery disputes in particular, but the impulse to contest everything the other side is saying can arise in almost any procedural situation). This litigious mindset is counter-productive not only because it takes a lot of time and resources, but also because it can unnecessarily antagonize the other side and make the dispute harder to resolve. Sure, some of this pre-trial activity is necessary to prepare for trial, but the bulk of it is never used at trial. And if the case doesn’t to trial, as most cases don’t, litigation is an awfully inefficient way of learning enough about the value of the claims and the interests of the parties to enable the parties to settle.

Often we are forced to engage in litigation, in the sense I’m using the term, either because the other side insists on it, or because clients demand action that will make their adversaries take their claims seriously. In most cases, however, both sides eventually realize that litigation is not helping solve the problem. We then negotiate settlement agreements that explain right on their face why the parties decided to enter into the deal, using language something like this: “in order to avoid further expense, inconvenience, and the distraction of litigation . . . . ” We are admitting to the world that we are settling most cases just to avoid the harms caused by the process we supposedly entered into for the purpose of deciding the controversy!

Clients might be able to justify engaging in a process that causes pain to their adversaries because that can cause the other side to see the light and accept terms. In fact, they are often eager to go at it for that reason. But they usually don’t want to cause themselves a lot of pain in the process. Clients find out that that they can’t usually expect to inflict pain without receiving some back in return, just as you wouldn’t expect to step into a boxing ring with another fighter without receiving some blows. As an attorney, I don’t get much satisfaction out of subjecting my own clients to a painful experience just to teach them a lesson. Therefore, for the majority of private disputes, I’d prefer to start off with a less destructive process, like negotiation or mediation. And if we have to litigate, I’d prefer to do so in a way that minimizes the pain for my clients and helps more their case toward resolution, rather than in a way that forces them to settle just to avoid experiencing more of the pain the lawsuit is causing them. A lot of litigation activity is avoidable and counter-productive. So if we are beating our heads against the wall just so that we will feel better when we stop doing it, we might have to question whether we needed to beat our heads against the wall in the first place.

The rule of law

We have come to one of those moments in our history when people are learning to appreciate the important role courts and lawyers play in our government. If you’re a supporter of President Trump’s blockage of travel from seven Muslim-majority countries, you probably find it frustrating that the courts have stepped in and at least temporarily prevented this ban from remaining in effect. And if you’re an opponent of this executive action, you probably cheered the district judge in Seattle who issued the injunction. But if everyone can put aside political preferences for a minute, the thing we really should be cheering is the role the courts play in keeping the other two branches of government in check. The power of judicial review, established in this country in the case of Marbury v. Madison (our first example of the courts’ invalidating an executive action), was an exceptional feature of our government, still not adopted or adopted only to a limited extent, in many countries.

Even in the realm of immigration, where the Executive Branch has extensive discretionary power, both President Obama and President Trump were told by federal courts that their executive orders exceeded their authority. In Obama’s case, the injunction prevented him from shielding childhood arrivals from deportation; while Trump has been at least temporarily enjoined from carrying out a temporary ban on immigration from seven predominantly Muslim countries, by an order being tested in the Ninth Circuit Court of Appeals as we speak. Whatever people think about the political merits of the original executive actions, or the legal merits of the court orders halting those actions, the important thing in both cases, and the thing that should make us proud of our Constitutional republic, is that notwithstanding strong disagreements and strong feelings, in both cases the Executive Branch has respected the court’s orders.

Whether President Obama scared you while he was in power, or whether President Trump scares you now, you should derive some comfort from the courts’ ability to keep the president’s power within the bounds of the law as the courts interpret it. Judges are human, and of course influenced by their own philosophies and political preferences, but their decisions are still primarily legal, not political. They are constrained by law, and they in turn act to constrain the entire government by law. And as long as we continue to respect the role that courts play in our system, our political preferences will continue to be checked by our strong legal tradition. That is essential to preserving our Constitution, and our form of government.

Alternative Facts

When Kellyanne Conway used the phrase “alternative facts” on Sunday to describe Press Secretary Sean Spicer’s counter-portrayal of the size of President Trump’s inauguration crowds, her comments were greeted derisively by the media and much of the public. The term seemed Orwellian in its efforts to turn falsehoods into truth. Twitter started lighting up with descriptions of made-up events now described as “alternative facts.”

But lawyers deal with alternative facts all the time. A personal injury lawsuit may turn on the question whether the traffic light was red or green, with each side passionately trying to establish the color that serves their interests. A judge ruling on a motion for summary judgment must decide whether there is a triable issue of fact, meaning that to avoid summary judgment, the evidence presented on the motion must show genuine contradictions between the facts presented by one side versus those presented by the other. And every day we give juries the task of determining which side’s version of the facts is more likely to be true, or whether the truth lies somewhere in between the presentations of both sides.

Often the assertion of two different versions of the truth means that one side or the other is deliberately lying. But not necessarily. The parties may present two contradictory stories because each side genuinely perceived the events differently. Or there may be basic agreement on some facts, while each side emphasizes pieces of evidence that favor the conclusion they want the fact-finder to reach. Lawyers are only doing their job when they selectively present the evidence that favors their side, leaving it to the opposition to highlight the facts that are favorable to them.

In the case of Sean Spicer, I’m not going to make a judgment about whether his version of the facts reflected reality better than other reports.  Shame on Sean Spicer if he is deliberately lying, but it is only fair to point out that at least some of what is going on here, such as Spicer pointing out that the ground cover may have made the crowds look smaller, while others assert that the same covers were used during prior inaugurations, is not that different from what trial lawyers do every day. Similarly, I’m not defending Kellyanne Conway for using the phrase “alternative facts,” which does seem to suggest that she is playing fast and loose with the truth. And shame on Kellyanne Conway if she was suggesting that made-up facts are just as valid as actual facts. But if all she was doing is introducing counter-evidence at variance with other reports, again that is similar to what lawyers do. One hopes the public is smart enough, as juries usually are, to sift through all the conflicting evidence and figure out what is really going on.

CLA presentation

I was asked to do a presentation for California Lawyers for the Arts, which I have titled “Dispute Resolution In and Out of Court.” Essentially I’m going to try to convey everything I know about the various forms of conflict resolution in a one hour presentation. We are currently planning to schedule this program sometime in the spring of 2017, perhaps as part of a series of law-related programs for small business owners and artists. The link below should lead to my slides.


Meet and Confer

For those who still think that litigation must always be conducted in an adversarial manner–that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution–consider that the courts are telling you otherwise. It’s not just that the courts routinely encourage settlement, and discourage trials; it’s also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It’s almost as though the courts don’t believe in the process they are designed for, because they are requiring you to engage in a different process first.

Meet and confer requirements have been around for a long time with respect to discovery disputes. Litigators understand that judges don’t want to be bothered with the laborious and nit-picky task of deciding whether parties have given adequate responses to interrogatories and document requests. They don’t want to referee attorneys’ conduct during depositions. They don’t want to order people to turn over information that they should have turned over voluntarily. Lawyers see the sense of requiring efforts to resolve those problems without the court’s assistance before filing a motion to compel or for a protective order.

But many lawyers trained with an adversarial mindset treat the meet and confer requirement as just another opportunity to engage in combat rather than give-and-take. Many “meet and confer” sessions are initiated by letters that take the form of an ultimatum rather than an invitation to negotiate. Many lawyers think they can satisfy the meet and confer requirement by sending such letters without even having a telephone meeting with their adversary, and without making any effort to explore consensual resolutions. That type of conduct, because it is not a good faith effort at an informal resolution of the dispute, has been held to violate the rule. Obregon v. Superior Court, 67 Cal.App.4th 424 (2d Dist. 1998). Nevertheless, adversarial habits are hard to break, and many lawyers continue to treat the meet and confer requirement as merely a hurdle on the way to an inevitable motion to compel, a motion that can only be avoided by the other side’s capitulation to the aggrieved party’s demands.

The obligation to meet and confer, which applies to nearly every motion filed in federal court, has been extended this year in the California state system to apply to demurrers as well as discovery motions. C.C.P. Section 430.41. Like discovery motions, demurrers are another form of motion disliked by many judges. Demurrers rarely do much to move the case along, usually resulting only in an amended complaint, but do give the parties an opportunity to spar over the adequacy of their compliance with arcane pleading requirements. I’m not saying that pleading sufficiency is never important, but I am saying that most of the time, the parties should be able to work out these pleading issues without the assistance of a judge. That is what the courts are now telling parties they must do. If we heed the spirit as well as the letter of these rules, then lawyers and litigants should be attempting to resolve all aspects of their disputes in a constructive, problem-solving manner.

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