Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
The judge looks up at the parties before her, exasperated. Frankly sharing her view that this case really needs to settle, she also implicitly wields the undecided pretrial motions as a weapon. “Let’s resolve this case” is her message, “or you really may not like the result!” In this kind of scenario, even if the parties genuinely believe that their best resolution is to be had in a jury trial, one or maybe both of them will be pretty nervous about sticking to their guns. That is the judge’s power to nudge, and in a ‘case management’ era of few trials and many tools for pretrial resolution, that nudge can be about as subtle as a hockey player slamming an opposing player into the boards. Not every lawyer can resist it, and not every client has the stomach to try.
But maybe lawyers and clients should be a little more committed to resisting the judge’s suggested off-ramps on the road to trial. That is the argument made in a recent symposium talk by Thomas O. Main of the law school of the University of Nevada, Las Vegas. The published remarks (Main, 2019) argue within the context of the declining civil jury trial, as well as the increasing prevalence of pretrial resolution. Noting that currently 88 percent of civil cases are terminated before the pretrial conference, Professor Main suggests, “It appears to be the shadow of the iron fist of a judge, rather than the shadow of a trial, that shapes settlement negotiations.” At times, he argues, litigators would do well to resist that iron fist as much as possible. In this post, I’ll take a look at his argument and share some thoughts on a few ways attorneys might resist.
Fairness, Not Nostalgia
Professor Main begins by citing the now-common statistics: In absolute numbers, civil trials have declined by more than two-thirds since the 1940s. The proportion of civil cases resolved by trial declined from 20 percent to 1 percent in that same time period. The idea of settlements taking place under the “shadow” of a possible trial is now suspect since trials have become less common and the cases that proceed all the way to trial have become less typical.
Many comments on the decline of the jury trial bring to mind our sepia-tinted thoughts about the golden age of jury trials, when an experienced trial lawyer would count their lifetime trials in the triple digits. Professor Main clarifies that he isn’t appealing to that historical ideal in emotional terms. “To be clear, my opposition here to this reframing of litigation is not about my nostalgia for trials,” he explains. “Rather it is an argument that, because trials are essentially the only mechanism in formal litigation where plaintiffs can win their case, trials — or some other procedural technique where plaintiffs can win rather than just not-yet-lose — are essential to basic fairness.”
He lays out a reasonable argument that the unfairness of diminishing trials falls most heavily on plaintiffs, since increasing barriers and multiplying the means of formal resolution prior to trial, our current litigation model is multiplying the ways that defendants can win while pushing back the one formal way that plaintiffs can win. “There has always been a fundamental asymmetry in the litigation postures of plaintiffs and defendants,” he continues. “Defendants can win a case on a pretrial motion, or they can win at trial. But, with few exceptions, plaintiffs can win a case only at trial.” The current system creates a gauntlet during which the plaintiff increasingly “only survives to fight another day.”
While the impact on plaintiffs is easy to see, it is worth adding that the process-induced pressure to settle can also be unfair to defendants as well. I would wager that nearly every defense attorney has the recent experience of taking a case that would have a strong defense in trial, and settling it simply because it makes sense economically.
Tools to Resist the Judge’s Nudge
There is much that judges and other fans of the civil jury can do in order to attempt to reverse present trends. New York University’s program, the Civil Jury Project, is a good starting point for resources as well as sponsored research on the question. In his remarks, Professor Main argues that judges should do more to preserve the trial option and attempt to shake off the “litigation management” yoke in seeing a trial as the successful conclusion of that process.
But part of the responsibility also falls on parties and trial lawyers. At the end of the article, Professor Main asks, “How many more cases could be tried if parties who preferred a trial simply resisted judicial efforts to get them to settle? Specifically, I wonder whether we are teaching our students to be too deferential to judges. Indeed, I worry that we are not arming our students with the confidence and tools to resist judicial efforts to settle.”
That prompted in me the question of what those tools would look like. When it comes to judges, litigators are always going to have incomplete control. But it isn’t no control. In their communications with the court, I think there are a few things that counsel and parties can do in order to resist unwise pressure to resolve a case prior to trial.
Emphasize the Question that Cannot Otherwise Be Answered
Even after extensive discovery and comprehensive briefing on a case, there is often still a question that only a jury can answer. The parties can value a case and can assess the law, but cannot replicate the jury’s subjective application of the law to the unique facts of the case. Emphasize that to the judge:
Your honor, at the end of the day, this case still comes down to the question of how a reasonable and informed jury is going to react to the facts of my client’s injury. And that is why my client and I are still committed to seeing this case resolved in a jury trial.
Commit to a Simplified and Streamlined Process
Given their caseloads, judges are often wary of trial for a good reason. A long jury trial can play havoc with a judge’s schedule. However, I know from long experience running mock trials, that the process can be a lot simpler and still lead to a meaningful resolution. While parties in court probably would not want to make the actual trial as short as a mock trial, they probably could, in many cases, streamline the case. If the parties were committed to paring the trial down to the essentials, then judges may be less reluctant to go down that path.
Manage Your Own Uncertainty
One reason parties are susceptible to judges’ pressure may be their own gnawing uncertainty about the outcomes in trial. If you treat the jury like a black box, a complete mystery that literally could go in any direction, then a known settlement can seem attractive, even if it isn’t particularly just. Lawyers and clients can mitigate that uncertainty with thorough preparation as well as pretrial research. Run a focus group, a mock trial, or both, and you will have a much better sense of what is possible at trial, and that information will help you resist the appeal of an unwise pretrial resolution. With knowledge in advance, you can go into trial feeling, not like you’re flipping a coin, but like you are proceeding on your best chance for a good outcome.
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now.
Other Posts on Judicial Persuasion:
- Argue With the Other Side, Not With the Judge
- Know Your Judge…Through Analytics, Not Anecdotes
- Cite Social Science to the Court
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
Main, T. O. (2019). Our Passive-Aggressive Model of Civil Adjudication. The University of the Pacific Law Review, 50(4), 605.
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