At a conference this week at Pepperdine, Daniel Winslow, a Boston attorney, and the International Institute for Conflict Prevention & Resolution unveiled a model agreement aimed at controlling litigation costs. The draft agreement includes a mandatory pre-litigation dispute resolution clause, as well as limits on the amount of discovery that can be taken in a commercial dispute, depending on the amount in controversy.
I find the idea of conducting litigation efficiently to be something of an oxymoron, akin to the idea of conducting war efficiently. As I’ve said before, the best way to conduct litigation efficiently is not to litigate, just as the best way to conduct war efficiently is to try diplomacy first. Once you are involved in a lawsuit, the primary goal is not to make life easy and pleasant for the other side. The goal in a lawsuit–indeed the attorney’s ethical imperative–is to win. Nevertheless, pre-dispute agreements aimed at controlling costs seem an admirable idea. If they operate to save parties from self-destructive and unnecessary expenses, they are serving a useful purpose. Like any set of rules, however, they may incentivize parties to try to achieve the maximum bang for the buck under the rules, rather than actually to reduce the time and effort expended in a lawsuit. For example, if you can only serve four interrogatories, a litigator’s instinct would be to draft those interrogatories as broadly as possible. If parties can only take a limited number of depositions, they may be tempted to seek the maximum they are allowed under the rules. Such rules also present the opposing party with a new opportunity to argue that the rules are being violated or abused.
Another approach might be to simplify and reduce the number of rules, with the goal of creating fewer tangential issues for parties to argue about. Since the great revision and simplification of the Federal Rules of Civil Procedure in 1938, rules and their interpretation have seemed only to become more cumbersome and complicated. A thorough housecleaning of the rules is long overdue, and efforts such as the one discussed this week may represent a step in that direction.
(illustration from about 1540 of trial by combat in Germany: I wonder if the lawyers of that time sat around thinking of ways to conduct litigation more efficiently.)