Wednesday, March 10, 2010

Why Sue First?

As mediation has become more of an accepted and even required step in many lawsuits, expectations and practices of parties involved in litigation seem to have shifted somewhat.  We see a lot of lawsuits filed with the expectation that the filing will eventually lead to a formal settlement conference or a court-appointed or private mediation.  Parties sometimes postpone doing expensive discovery or filing expensive summary judgment motions, with the hope of resolving the case at a mediation conference.

If that is the expectation, why even bother with filing the complaint?  Of course filing a complaint serves important purposes like framing the issues, announcing the seriousness of the filer's intentions, tolling the statute of limitations, and perhaps other purposes.  But if the case is likely to be resolved in a mediation anyway, more parties might consider calling a mediator first, instead of waiting until the initial status conference for the judge to send the case to mediation.  Sending demand letters and attempting to initiate various forms of creative dispute resolution has always been part of my law practice, but as mediation becomes more prevalent, and as I incorporate more settlement techniques in litigation, I now question, in almost every case, whether filing a complaint is the best first step toward solving the client's problem.  Is it possible to short-circuit this step altogether in more cases?

Before dispensing with them, let's consider the usefulness of all those early steps, and their costs.  Filing an initial pleading in court requires a filing fee.  It involves some research, or at least a visit to the form files. It takes time to organize and write up the factual allegations, and consider the appropriate causes of action.  So the preparation of a complaint at least has the benefit of forcing the plaintiff to organize his or her grievances in a coherent format, and to formulate appropriate legal theories of recovery.  On the other hand, that organizational work can be done without turning it into a formal complaint.  Moreover, filing a complaint invites a demurrer or motion to dismiss, or at the very least requires the opposing party to prepare an answer.  People generally react negatively to being served with a summons, so initiating a lawsuit often causes resistance to resolving the dispute in a more peaceful manner.  So there is the potential for motion practice over pleading issues, and even the possibility of appeals.  That is followed by the preparation, or at least consideration of initial discovery demands.  There is also the possibility of requests for injunctive relief, or writs of attachment, the recording of a lis pendens, or other provisional remedies.  In short, a whole lot of attorney time may be required, some of which may be extremely helpful and productive, but much of which may actually be counter-productive to the goal of resolving the dispute.  After months of punches and counter-punches, the parties may be sent back to where they should have started, to a meeting to discuss the possible resolution of the case.  Perhaps some parties need to be reminded of the costs and potentially wastefulness of a lot of pre-trial procedure, as an incentive to consider settlement, but  sophisticated clients should not need such a reminder.

Does sending the other side an invitation to mediate, instead of a complaint, convey weakness?  Perhaps some people would interpret it that way, but again, more sophisticated parties should not.  They might reject the invitation, if they doubt whether or not the complainant is serious about pursuing the matter, but they  generally appreciate the opportunity at least to consider whether the case can be resolved informally.

There are also a lot of disputes that cause some trouble to bring within the court system, but still cry out for resolution.  For example, I saw a post on the IP ADR Blog, by Mary Zachar, which is partly what got me thinking about this post, pointing out that foreign authors have limited recourse in U.S. courts unless they register their copyrights in the United States.  Of course, registration is generally a pre-requisite for domestic copyright owners as well, as recently discussed in my law firm blog.  But mediation before filing avoids those time-consuming and sometimes expensive steps.  By saving the copyright holder the costs of filing in the Copyright Office, as well as the costs of filing in federal court, the alleged infringer might save itself a substantial amount on the cost of settling the dispute as well, since those items, as well as associated attorney fees, can be removed from the copyright owner's initial demand.

Finally, there are a lot of disputes that should not even be framed as lawsuits, if that can be avoided.  I heard a lecture last year by Doug Noll, on the mediation of non-litigated disputes.  He has had some success with businesses and families facing difficult internal conflicts, in conducting mediation sessions among the involved parties, in order to avoid a will contest, or a wrongful termination lawsuit, or a potential corporate dissolution suit, down the line. In such situations, all parties probably prefer to avoid litigation, but the internal conflict has been allowed to fester for some time, and its lack of resolution may be causing serious problems.  Litigation should probably be the last resort for parties in those circumstances, and should probably not be the first suggestion for resolving many other types of conflicts either.  Non-litigious means of dispute resolution should come more readily to mind. 

(Photo of one of my old haunts, the New York County Courthouse, by wallyg)

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