The vast majority–more that 90%–of civil cases never go to trial. They are resolved by default, or by motion, or by negotiated settlement. And if by settlement, that happens between the parties themselves or with the court’s assistance or by mediation. It’s true that a lot of cases can be settled by raising the specter of trial as an unappealing alternative, but that specter is not going to materialize in most cases anyway, because eventually most parties in most cases are going to find a way to avoid trial. They have to, because the courts don’t have time to try more than a tiny percentage of the cases that are filed, and because it almost always becomes apparent in most cases that it just doesn’t make sense to try them.

The problem with our civil justice system is not that we have too many trials. The problem is that we have too few trials, and we have too much of all the other stuff that happens in litigation. If we had more trials, then more young lawyers would have the experience of knowing what is important when the case finally gets to trial, and they probably would waste less time filing every possible motion, or deposing every last witness, or fighting over every last document or interrogatory answer. Because what you learn when your case finally does get to trial is that most of that activity is of little use at that point. Those discovery motions you filed? You’re probably not going to look at those. All those documents you obtained from the other side? You’re only going to mark a few of them as exhibits. That monstrous motion for summary judgment? It’s going to remain in its box for the duration of trial.

Years ago I pretty much gave up on filing discovery motions, and decided to do whatever I could to prevent the other side from filing them. I found that I can almost always obtain better results by negotiating the resolution of discovery disputes rather than taking them to the judge. Then recently I successfully took a case to jury verdict where of necessity and by design our side didn’t file any motions of any kind, or take any depositions, or designate an expert, or even depose the other side’s expert. After that experience, I’m thinking I should renounce most of those activities also. It turns out to be a lot easier to surprise a witness on cross-examination if you have never taken his deposition. And a lot more fun also. And it saves the client a lot of money. I’m not saying you can avoid discovery or contested motion practice in every case. You can’t. Some of it is quite necessary and important. But most of it is not.

Maybe this should be the test for deciding whether to take a particular step in a lawsuit: is it likely to help resolve the conflict? In other words, is it something you really need if the case goes to trial, or is it something that will bring the parties closer to settlement? If you don’t need it for trial (and you’re probably not going to trial anyway), and if it’s not going to help bring the parties closer to settlement, then why are you doing it? You might just be exacerbating the conflict rather than helping to resolve it.

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