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Throwing Down the Gauntlet

Why does a lawsuit begin with a complaint? This procedure must have evolved from the earliest days when litigants had the option of trial by battle or trial by ordeal, and eventually were offered the more civilized form of combat known as trial by jury. That history represents a progression from the idea that disputes must be decided by God or the King or at least a higher authority such as a judge, to a recognition that people can resolve disputes among themselves. The complaint might be seen as a remnant of a more adversarial process than the one that we actually use. A lawsuit begins with a challenge. The complaint calls an opponent out to a fight; it sounds like a declaration of war. But a lawsuit rarely ends with a fight. The vast majority of cases never end up going to trial, and most cases are resolved by a negotiated agreement among the parties somewhere along the way, perhaps after they are worn out with litigation. To quote Eliot, “not with a bang but a whimper.” That being true, why start the process off on the wrong foot? Why do we pretend that we are initiating a trial process when we know that most likely the case is not going to be resolved in a courtroom?

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