Saturday, January 24, 2015

Technology

If somebody were to ask me (actually somebody did ask me) about the future of conflict resolution, my answer would have to include technology. Technology is already enabling us to do things that would have been unimaginable only, say, 20 years ago. We now carry devices in our pockets that enable access to virtually any available information. I can tap my cellphone to pinpoint my location on an interactive map and find out instantly how long it will take me to get anywhere by any available mode of transportation; I receive updates on appointments or plane schedules without even asking for them; and I can instantly communicate, via Twitter, or Linkedin or facebook, or any number of other means, with virtually anyone.

Technological change has already started to revolutionize the legal system. Tools like RocketLawyer and LegalZoom are enabling people to perform many functions themselves they previously could not do very well without a lawyer. Companies like eBay and Amazon have already set up online dispute resolution procedures that are handling many times the number of conflicts between buyers and sellers than can be handled by any court. New software is being developed every day to create forms and negotiate agreements. Because technology enormously increases the efficiency of generating legal documents, automation is already putting lawyers out of work, while creating new opportunities for some. Thus far these technological advances seem best designed to deal with smaller scale conflicts that people have not traditionally been able to bring to court anyway. For the most part, these changes help people manage legal problems that they would otherwise have had to handle on their own. But they also have the ability to scale up to problems that currently tend to go to court.

We can also already see that even the traditional court system is slowly automating more and more of its functions. Electronic filing is becoming the norm.Web interfaces are becoming more user-friendly. Eventually these more streamlined case processing functions should allow the courts to update antiquated rules and procedures and make the justice system more efficient.

Given the rapid pace of change, it would be perilous to predict what technology might allow us to do, say 20 years from now. But one prediction I would make about the generation that is growing up with access to all the world's knowledge in their pockets, a generation that understands the power of crowd-sourcing, that is adopting the sharing economy, that believes in do it yourself solutions, and that demands instant answers to almost any problem: that generation is not going to have much patience with ways of doing things that were more appropriate to the 19th century.

That generation should be open to experimenting with non-traditional methods of resolving both simple and complex conflicts that people currently still associate with old-fashioned lawsuits. The good news for mediators is that the tech-savvy generation should be receptive to mediation as a way to resolve conflict. This generation has grown up expecting instant gratification, empowerment, and cooperation. They would be expected to embrace ADR processes that are faster than court; more centered on the needs of the disputants; and less adversarial.

But to retain the favor of a more tech-centered world, mediators themselves are going to have to embrace technology or we might get left behind by even more efficient ways of resolving disputes. People who are used to being able to get an instant answer to any question from the palms of their hands, are not going to want to work too long or too hard for solutions to conflict. Unfortunately, I don't have any particular "mediation apps" to recommend, though it seems obvious that mediators, like everyone else, will increasingly be doing more business online and using the tools their clients are using to schedule and conduct meetings, and to share information. But part of the challenge for mediators in the future will also lie in persuading disputants of the value of some pretty old-fashioned talking remedies for conflict--methods that can be traced back to traditions like sitting around the campfire smoking a peace pipe. We have to work even harder to sell techniques that are as old-fashioned as that, while remaining open to new techniques, because we live in a rapidly-changing world that puts a premium on innovative solutions.


Wednesday, January 21, 2015

Better politics

Everyone is talking about President Obama's little dig at his opponents when he reminded them of his two election victories. But the part of the State of the Union speech that should get mediators excited is the following:


"So the question for those of us here tonight is how we, all of us, can better reflect America's hopes. I've served in Congress with many of you. I know many of you well. There are a lot of good people here, on both sides of the aisle. And many of you have told me that this isn't what you signed up for - arguing past each other on cable shows, the constant fundraising, always looking over your shoulder at how the base will react to every decision. Imagine if we broke out of these tired old patterns.

 Imagine if we did something different. Understand - a better politics isn't one where Democrats abandon their agenda or Republicans simply embrace mine.

 A better politics is one where we appeal to each other's basic decency instead of our basest fears. A better politics is one where we debate without demonizing each other; where we talk issues, and values, and principles, and facts, rather than "gotcha" moments, or trivial gaffes, or fake controversies that have nothing to do with people's daily lives.

 A better politics is one where we spend less time drowning in dark money for ads that pull us into the gutter, and spend more time lifting young people up, with a sense of purpose and possibility, and asking them to join in the great mission of building America. If we're going to have arguments, let's have arguments - but let's make them debates worthy of this body and worthy of this country.

 We still may not agree on a woman's right to choose, but surely we can agree it's a good thing that teen pregnancies and abortions are nearing all-time lows, and that every woman should have access to the health care she needs.

 Yes, passions still fly on immigration, but surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is taken from her child, and that it's possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.

 We may go at it in campaign season, but surely we can agree that the right to vote is sacred; that it's being denied to too many; and that, on this 50th anniversary of the great march from Selma to Montgomery and the passage of the Voting Rights Act, we can come together, Democrats and Republicans, to make voting easier for every single American.

 We may have different takes on the events of Ferguson and New York. But surely we can understand a father who fears his son can't walk home without being harassed. Surely we can understand the wife who won't rest until the police officer she married walks through the front door at the end of his shift. Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.


 That's a better politics. That's how we start rebuilding trust. That's how we move this country forward. That's what the American people want. That's what they deserve."





Monday, January 5, 2015

Selma

The new movie Selma depicts the events that led to passage of the Voting Rights Act in 1965. There has been some controversy about the historical accuracy of parts of this movie, but I don't have much patience with those kinds of criticisms. Selma is not a documentary, even though it is based on historical events and does use some documentary footage in one part. Therefore, filmmakers are entitled to whatever artistic license they feel they need for the sake of heightening the drama. The point of the movie, which it succeeds at brilliantly, is demonstrating the power of a social movement to create change. In the process, the movie also puts Martin Luther King, Jr. front and center so that we can understand and feel the leader's personal struggle to balance the desire for change, the safety of his followers, his family's needs, and his sense of the most successful strategy for achieving the movement's goals.

As a lawyer, I can't help focusing on the role of the courts and the political system in the drama. The movie understandably puts the court proceedings somewhat in the background, except that the court case pops out at one point in the middle of a series of meetings and preparations. The movie offers a somewhat confusing portrayal of the aborted second march (based on the historical record, that day probably was very confusing), seeming to suggest that King obtained spiritual guidance that persuaded him to turn back. That may be true, but it is also true that he was thinking about the temporary restraining order he would have been violating by proceeding. Then we see the courageous Federal District Court Judge Frank Johnson (played by Martin Sheen) hearing a parade of witnesses before issuing an order that permitted the third march.

Was there ever an opportunity for peaceful resolution of this conflict? We see President Johnson acting at times a little bit like a mediator between King and Governor Wallace, but no real attempt was made at creating a dialogue that could resolve the dispute. The protesters had demands that could not be denied, and the local authorities were determined to resist those demands as long as they could. What the movie shows is that the state's violent resistance to the legitimate demands of citizens for voting rights only ended up helping the protesters achieve their goals.

Martin Luther King was not averse to negotiated resolution of conflict. But despite his strategy of non-violence, he did not exactly renounce more aggressive and adversarial methods either. In fact, the strategy of non-violent resistance was deliberately confrontational, and designed to provoke a violent reaction. That is why it worked. This is shown in the movie when King meets with two SNCC organizers and asks whether Sheriff Jim Clark in Selma was more like Commissioner Bull Connor, whose men had been caught on film brutally attacking protesters in Birmingham the year before, or like  Police Chief Laurie Pritchett, who had effectively defused protests in Albany, Georgia, by adopting a restrained policy toward the protesters. John Lewis responds that Clark was more like Connor, and that helped King decide that Selma was the right place to organize protests.

In the end, it was not the court case, or the peaceful protests, or the legislative process in Washington, that caused voting rights to move to the forefront of the nation's priorities in 1965. It was the first attempted march, the one that barely made it across the Edmund Pettus bridge before being met with horrific police violence, that shocked the nation into responding. It was violence that prodded the legal and political system into putting the laws in place that ultimately bring a measure of justice needed to reduce that violence. And it is the tension between the deliberate use or provocation of violence to achieve a movement's goals, and the desire to use the law to create a more just and peaceful solution, that creates much of the thought-provoking drama shown in the movie Selma.



Tuesday, December 30, 2014

Plea bargaining

In an exchange of letters published in the most recent issue of the New York Review of Books, commenting on an article last month about reforming the plea bargaining process by Federal District Judge Jed Rakoff in New York, Judge Rakoff defends his proposal to get judges more involved in plea bargaining by comparing it to the way mediation is offered to civil litigants in the same court. Here is how he describes mediation as he sees it being practiced: 
[C]ivil litigants regularly meet with magistrate judges or court-appointed mediators shortly after a case is filed and, in separate, confidential presentations to the mediator, describe their respective evidence and positions. The mediator then meets again with the parties separately and, based on what the mediator now knows about the underlying factual and legal positions, points out to the respective parties the pitfalls they each face.
As every mediator will tell you, it is not that the parties have been wholly unaware of these pitfalls in the past that makes mediation effective, but rather that the parties have never taken these shortcomings seriously because they were never previously described with the forcefulness and objectivity that a mediator brings. Duly shaken, the parties are now open to a settlement proposal from the mediator that they would have previously rejected out of hand.
I'm sure this is the way mediation is often conducted in federal court, particularly when judges preside as mediators. But it's not the way all mediators practice. Some purists would probably even argue that this style of mediation--which generally takes the form of a back and forth discussion with each side predominantly in caucus format, in which the discussion primarily revolves around the parties' "respective evidence and positions," in which lawyers tend to dominate the conversation, and which concludes with "a settlement proposal from the mediator"--is not mediation at all. It's a settlement conference. It achieves its intended result by presenting the parties with a neutral assessment of how the case might come out at trial. Its content seems to be based almost entirely on consideration of legal rules and rights, rather than any attempt to discover the parties' needs and interests. And not "every mediator" will tell you that cases are settled in mediation as a result of the parties being "duly shaken" by the mediator's power to describe the issues forcefully and objectively. Often cases are settled in mediation because it's the first time the parties ever had a chance to listen to the other side, and because they now more fully understand their perspective.

Anyone who's ever read my blog before, or perused the literature on mediation, knows that a discussion limited to the strengths and weaknesses of each side's respective legal and factual positions at trial merely scratches the surface of what can be accomplished in mediation. I sometimes remind parties in mediation that they need not be concerned at all with what might happen to the case in some alternate universe in which it goes to trial. After all, the case is most likely not going to trial, and therefore it can be resolved based on whatever concerns are important to the parties. At times in his earlier article, Judge Rakoff seems to recognize this reality, noting that hardly any criminal cases go to trial, and nearly all are resolved by plea bargaining. That would seem to open the door to consideration of a range of factors that  are not even relevant at trial, yet might prove a more satisfying form of resolution for the parties.

In the mediation of civil disputes, a lot of mediators reach far beyond the narrow focus on evidence and positions that Judge Rakoff is talking about. Parties have a chance to air their real grievances, for example, regardless of whether they might constitute a cognizable legal claim. They have a chance to uncover their real motivations, which might take the form of betrayal, jealousy, anger, resentment, disrespect, misunderstanding, or just plain inconsiderateness. And they have the chance to design solutions to the conflict that are simply beyond the reach and power of a court to impose.

It could be that because Judge Rakoff expresses too limited a view of the possibilities of civil mediation, he is also ignoring the possibilities of more meaningful reform of the criminal justice system. In the resolution of criminal cases, is the most promising road to reform really getting judges more involved in plea bargaining? Instead, we might try to incorporate some of the values and methods of the restorative justice movement. A full discussion of that topic is beyond my expertise, since I operate only in the civil justice system. I do know, however, that that model operates more closely to the ideal sort of civil mediation described above, than to the limited idea of civil mediation contemplated by Judge Rakoff. To bring the process of plea bargaining closer to that ideal, the parties to a criminal case should also be permitted to consider a range of interests beyond those meted out by criminal trials. The accused and the victim may, for example, be able to obtain restitution, forgiveness and understanding, rather than relying solely on punishment. Introduction of those concerns might be what is needed to bring plea bargaining out of the shadows and into the realm of respectability, and even enlightenment.

Saturday, December 13, 2014

Joint sessions redux

Joint sessions have suddenly shown up as a hot topic again. The fall issue of the ABA Dispute Resolution magazine features an article by Eric Galton and Tracy Allen alarmingly called "Don't Torch the Joint Session," which decries the "disturbing trend" of eliminating the joint session from mediation. LA mediator Lynne Bassis has an article in the same issue entitled "Face-to-face Sessions Fade Away." And New Zealand mediator Geoff Sharp on the Kluwer Mediation Blog has written a piece with the strange title "The Californication of Mediation," which identifies this disturbing trend as emanating from my home base, the well-developed mediation market of Southern California. Eric Galton has even formed a facebook group called "Save the Mediation Joint Session and Promote Party Participation."

What's going on here? Are joint sessions dying? Do we need to create a movement to "save" them? As a proponent of joint sessions myself, I support efforts to increase their use, and to educate attorneys and parties on the benefits of joint sessions. I agree that for some time now, the trend has been toward more reliance on caucus-style mediation. This trend feeds on itself: as caucus mediation becomes the norm, part of the very culture, parties and attorneys expect to remain in separate rooms throughout the process, and even refuse to try joint sessions. Concerted efforts will probably be needed to reverse this trend.

In my own mediations. attorneys frequently tell me that  joint sessions are a waste of time, or that joint sessions allow lawyers to grandstand, or that joint sessions will just inflame the parties and set back their efforts at resolving the dispute. Parties also often express reluctance at meeting with the other side, with whom they have usually had little or no contact since the dispute arose. I suspect these feelings arise from experiences with joint sessions that are not being conducted properly, i.e., that to the extent mediators are allowing joint sessions, they are doing them wrong. I think these attitudes about joint sessions also arise from ignorance or laziness or fear or distrust.

Because I encounter these objections frequently, I find myself in my own mediation sessions attempting to sell attorneys and parties on the benefits of joint sessions. It's going to be more efficient, I might say. Rather than listen to me repeating what the other side is telling me, why not hear it directly from the horse's mouth? Or I might try to explain to the parties that we will set some ground rules that will prevent the joint session from turning into an opportunity for grandstanding. What we're going to do instead is share information, and allow the parties to have the chance to listen and find out what's really bothering the people on the other side of the table, and to tell them what is bothering you. Face-to-face communication has a lot of advantages over shuttle diplomacy.

As is explained in the articles cited above, mediators should understand that face-to-face communication, conducted properly and with guided party participation, performs a crucial function in the mediation process. It should be the norm, not the exception. This kind of communication is what allows parties to understand the conflict from the other side's point of view, and to find out what is most important to them, which is what opens the door for breakthroughs. And these face-to-face encounters can also allow parties to achieve genuine satisfaction and healing, rather than settling for just settling out of necessity to avoid an even more unpleasant litigation process.

It's still an uphill battle in many cases, however, to persuade mediation participants of the benefits of joint sessions, so I agree with these authors that we should do more to resist the slide of mediation into a caucus-only model, and to help consumers of mediation appreciate the benefits of joint sessions.

Thursday, December 11, 2014

The Grand Bargain

The city of Detroit emerged from bankruptcy yesterday, a process that was successful because of something the participants labeled the "Grand Bargain." The Grand Bargain was a complicated plan, but its key feature involved the transfer of the city's extremely valuable art collection to a charitable trust, in exchange for about $800 million in new financing provided by the state and private parties. It sounds like a clever solution to a difficult problem.

What jumped out at me from this morning's LA Times article, was this comment from bankruptcy professor Laura Bartell describing how the parties managed to hammer out the deal: “When everyone realized the situation, there wasn’t a lot to argue about.” Really? Nothing to argue about? From what I had heard about the situation leading up to the Detroit bankruptcy, there should have been a lot to argue about. Depending on your point of view, you could point the finger at a profligate city administration, or poor planning, or at greedy unions, or the state for treating the city unfairly, or the surrounding suburbs that pulled taxpayers out of the city, or the decline of auto manufacturing and other industries. All of these various stakeholders had legitimate grievances against the others. All represented competing interests that had to be balanced.

To resolve the city's financial crisis, one can imagine representatives of all these competing interests gathered in a room blaming one another for the city's problems, and ultimately forcing all of the parties to make the concessions and contributions necessary to get the city back on its feet. Probably that happened to some extent. But the professor's comment suggests that something else happened also. And that something else could have arisen from an understanding gained by all of the participants of the realities of the situation, and a focus on available solutions.

To say that when everyone fully understands the situation, there isn't a lot to argue about, seems an apt description of an ideal kind of mediation or negotiation process. Arguing about responsibility for the problem, while often unavoidable, doesn't necessarily lead to resolution, and might even lead the parties away from making a deal. It's no good to identify the responsible party, if that party lacks the capacity to fix the problem. That's especially true in bankruptcy court, where people who mismanage their businesses, and fail to pay their debts still often walk away free. What is needed is recognition of the realities of the problem, and the creativity needed to devise solutions.

ACG Detroit

Wednesday, December 3, 2014

Frozen conflict

I wasn't familiar with the term "frozen conflict" until I saw it applied to the current stalemate in the Ukraine, but apparently it has been used to describe other similar disputes in the past, especially dealing with other former territories of the Soviet Union. In the Ukraine, "frozen conflict" seems an apt description of a situation in which neither side can win, at least for the moment, but neither can formally accept the status quo either. The government of Ukraine refuses to acquiesce in the illegal seizure of a portion of its territory, but cannot reclaim that territory from Russia either, especially since a large number of people in the eastern part of the country support Russia. So they are forced, if not to agree, at least to live with a breakaway region of the country. And people who inhabit that region are forced to live with continuing tension, occasional outbreaks of violence, distrust and fear. Other countries like the US, have imposed sanctions or otherwise attempted to influence events, but nobody wants to start World War III over the Ukraine.

It's a good reminder that not all conflicts are resolveable. "Resolution" of a conflict such as exists in Ukraine may be too ambitious a goal for now. What is needed is management of the conflict, to make life somewhat tolerable for the people affected by it. People need to develop a tacit understanding that flare-ups of violence should be avoided. People need to learn what topics to avoid in conversation; what neighbors to avoid; what side of the street to walk on. And people need to start building a few tentative bridges to the other side to prepare for the day when a fuller resolution might be possible.

Sometimes frozen conflict inspires the construction of borders and security fences, as have existed in the Korean peninsula for a lifetime, as in Berlin for a generation, as in Israel for most of its history, as in Cyprus for many years also. In other places the combatants cannot be so easily separated, as in Northern Island, and people just learn to associate with their own side. In most of these situations, the conflict is exacerbated by differences in culture, in religion, in language, in ethnicity, or in ideology, differences that allow each side to view the other side as "them," somehow completely unlike "us."

We have conflicts in our own country's history that have existed since its founding. The most serious conflict, over race relations, was supposedly resolved by a bloody Civil War, but a system of white supremacy was allowed to remain in place for a century after that. This conflict was resolved more completely by the Civil Rights movement, but not entirely then either. Our nation's frozen conflict still flares up today on the streets of New York City or Ferguson, Missouri. We can't just make it disappear.

Yet we still have an urge, when faced with intractable conflicts such as the one between Israelis and Palestinians, or between the East and West of Ukraine, or the one that arises from our own history of slavery and discrimination, to push the parties to the bargaining table to hammer out an agreement that will finally solve the problem once and for all and enable them to live in peace. In many cases, it is probably more realistic instead to accept that the conflict is not going to be resolved in one fell swoop, and help the people affected by it develop just enough tolerance and understanding to get by.

Wednesday, November 26, 2014

Trials, part 2

Here I want to talk about the emotional component of trials: both the agony and the ecstasy involved in this climactic phase of litigation. These emotions are stirred up in part by the incredible amount of work that needs to get done in the days and weeks leading up to trial, days that are consumed with pre-trial briefs and motions, jury instructions, witness and exhibit lists, re-reading the documents, preparing witnesses, etc. Time and cost considerations seem to go out the window. Whenever I am getting ready for trial, I seem unable to think about anything else. I disappear from family and other obligations.

12 Angry Men
It's not only the massive amount of preparation that turns litigants and lawyers into emotional wrecks. There is also the confrontation with the stark reality of the case itself, with all of its strengths and weaknesses, that worries you. It's like facing Judgment Day. Clients start feeling nervous, and at the same time somewhat helpless to control the outcome, like an expectant father. But they might also feel like an expectant mother, because they know this is the moment when they really have to deliver. Both lawyer and client share an awful feeling in the pits of our stomachs that stems from the realization that we are putting everything on the line in the service of our imperfect case, and the knowledge that it may not prove worthy. But we share a sense of excitement as well, because if everything goes well, and we've prepared as well as we can, we could also be on the verge of a great moment of triumph.

I start second-guessing myself before the trial even starts: did I analyze the case properly? Am I going to be able to score the points I am hoping to score? Was this case worth the amount of time and effort we expended on it? Is the jury going to understand the evidence and get the message I want to convey?

All of this emotional turmoil, second-guessing, and the realization of facing the moment of truth leads to a lot of settlements on the courthouse steps. But if the case doesn't settle there, there is still the emotional roller-coaster of the trial itself: the highs of a cross-examination question that hit the mark, the lows of an answer I wasn't expecting. The parts that didn't go over as well as I was hoping. The parts that went over better.

Last week I won a very satisfying jury verdict. So naturally I'm thinking, settlement is for suckers. There is no feeling better than winning. Plus my client deserved to win. But I've also experienced the other outcome, and it is the pit of despair. And then there are those results in between, where the outcome didn't seem to change anything, and made everyone question whether the whole exercise was worth it.

Most people enter into litigation without fully considering the impacts of trial, financially, mentally, morally, emotionally and in every other way. They haven't thought about how they would feel if they won, or how they would feel if they lost. They haven't thought about how they would feel while they were getting ready for trial, and how they would feel in the middle of it. That makes sense, because most cases are never going to get that far. But people are still looking for vindication when they file or respond to a lawsuit. They want to find out who is in the right and who is in the wrong, but they don't necessarily want to experience all the feelings of dread and anticipation that are required to obtain that outcome. The problem is that you can't have one without the other. And people should understand that it's the rare case where matters of principle really demand you to go through all of that agony and ecstasy to obtain the end result you thought you were looking for.

The point I'm making--that litigants should think through the consequences of trial before they embark on that enterprise--might seem to contradict the conclusion of my prior post, which was that we need more trials to help educate lawyers on what is important in litigation and perhaps reduce the amount of waste that takes place in prior proceedings. Here is how I might reconcile those positions: I think our system leaves most litigants feeling unsatisfied. They are especially unsatisfied when they are told to pay more or accept less than they think is fair because justice simply costs too much. Therefore I think we need to reduce the amount of pre-trial proceedings that stand in the way of trial. That way, more people who need the vindication (or the repudiation) of their positions they get from trial, can obtain that kind of satisfaction. Equally importantly, if we can reduce pre-trial proceedings, then more people are going to settle based on their evaluations of the case and their notions of fairness, rather than because they have been ground down by the high cost of litigation. That should increase satisfaction also.

Ideally, our system should allow you to try your case at reasonable cost. It should also encourage you to resolve your case by negotiated agreement, and that should happen to most cases. What the system should do less is to allow you to litigate your case to the point where you are forced to settle because you can't afford to litigate any more.

Sunday, November 23, 2014

Trials

Mediation is often touted as a better alternative to taking a lawsuit to trial. It usually is; but I believe that is still the wrong comparison to make in most cases. The vast majority--far more that 90%--of civil cases are never going to trial anyway. They are mostly going to be resolved by default, or by motion, or by negotiated settlement. And if by settlement, that will happen 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.

So if mediation is not an alternative to trial, what is it an alternative to? My answer is litigation. Mediation represents a method of encouraging parties to resolve disputes by cooperative instead of adversarial means. The sooner they can switch to a cooperative rather than an adversarial approach to resolving disputes, the sooner they can avoid or reduce the costs and risks of continued litigation. That includes motions, discovery, appeals, and all the other unpleasantness of litigation. Trial is only one potential step in that process. And probably the one least likely to happen.

Anyway, 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, will the action you're thinking of taking be valuable if the case goes to trial, or will it 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.