|12 Angry Men|
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.