Entries Tagged as 'litigation'

Gamesmanship In A Lawsuit And Discovery Can Cost You

Much of what happens in a lawsuit is gamesmanship, especially during the discovery phase.  Discovery comprises much of the pre-trial phase of litigation where each party seeks to understand what the other side(s) know, what documents they have pertaining to the litigation, what they will say under oath, etc.  Discovery can be expensive.  A Rand Corporation study found that 80% of litigation costs are incurred in the discovery phase.  Since less than 2% of cases filed actually go to trial, discovery ends up being THE cost of litigation for the vast majority of cases. As a result, gamesmanship during discovery can be used as strategic or tactical tool — or abused — depending on how one views it.  Some examples:

  • Asking for voluminous or tangentially relevant documents
  • Taking depositions from an excessive number of people
  • Repeated last minute canceling of depositions
  • Asking inappropriate questions in an interrogatory
  • Refusing to provide requested documents
  • Refusing to answer interrogatories
  • Filing a lot of motions with the court (motions to dismiss, for summary judgment, to compel, etc.)

The goal of the gamesmanship is to create addition expense or agita for the other side, causing them to want to abandon their case or to settle on more favorable terms.  Unfortunately, the usual result is a lose-lose scenario where it creates the same problems for both sides.

In a recent case in California, the court in Clement v. Alegre , 09 C.D.O.S. 12126 imposed a monetary sanction of more than $6600 on one side for abusing the discovery process.  In this case, the plaintiff had objected to answering 20 of 23 interrogatories.  A retired judge acting as discovery referee noted that plaintiff’s objections were “unreasonable, evasive, lacking in legal merit and without justification” and he imposed the monetary sanctions.  Justice J. Anthony Kline for a unanimous appeals panel wrote in salient parts:

We have no difficulty in affirming the trial court’s determination that in this case plaintiffs forced to court a dispute that was not ‘genuine’.

Indeed the record here strongly indicates that the purpose of plaintiffs’ objections was to delay discovery, to require defendants to incur potentially significant costs in redrafting interrogatories that were clear and that did not exceed numerical limits, and to generally obstruct the self-executing process of discovery.

Ample evidence supports the referee’s determination that plaintiffs deliberately misconstrued the question.

Clearly this was ‘game-playing’ and supports the referee’s findings and the sanctions award.

Kline further chastised both sides for failing to mount any “serious effort at negotiation and informal resolution” and used the ruling to remind all lawyers to avoid a similar outcome.

Mediation can help avoid all of these discovery problems.  Discovery is a means to an end — not the end.  The end is resolving your dispute.  Mediation helps get resolutions on your terms.  Mediation seeks to find win-win solutions. If you’re looking for a resolution to your dispute, call me at 732-963-2299 or contact me online.

What are your chances at trial? How well do plaintiffs and defendants do in state civil courts?

The U.S. Department of Justice’s Bureau of Justice Statistics has released the “Civil Justice Survey of State Courts, 2005“.  The 2005 CJSSC was the first time that the series examined general civil trials concluded in a national sample of urban, suburban, and rural jurisdictions.  Past reports only looked at the 75 largest counties in the U.S.

Highlights of the report:

  • 26,950 general jurisdiction cases in state level courts were disposed of in 2005.
  • Among jurisdictions that provided totals for both trial and non-trial general civil dispositions in 2005, trials collectively accounted for about 3% of all tort, contract, and real property dispositions in general jurisdiction courts.  (Note: only 1.8% of state cases in New Jersey end in a trial.)
  • A jury decided almost 70% of the general civil trials disposed of in 2005.
  • About 60% of the general civil trials included in the survey involved a tort claim and about a third involved contractual issues.  The rest primarily involved real property.
  • Plaintiffs won in 56% of trials overall.  A higher percentage of plaintiffs won in contract (66%) than in tort (52%) cases.
  • The median damage award for plaintiffs who won monetary damages in general civil trials was $28,000.  Contract cases in general had higher median awards ($35,000) than tort cases ($24,000).
  • Punitive damages were awarded to 5% of plaintiff winners in general civil trials in 2005.  It was sought in 13% of cases.
  • In the nation’s 75 most populous counties, the number of general civil cases disposed of by jury or bench trial declined by about 50% from 1992 to 2005.
  • Bench trials (57%) had a higher percentage of business litigants than jury trials (39%) and were likely to be decided in less time than jury trials. Judges were more likely than juries to find for plaintiffs. Plaintiffs won in 68% of bench trials, compared to about 54% of jury trials.
  • The median damage awards in 2005 were statistically similar for both jury and bench trials overall.  Contract cases tried before a jury ($74,000), however, had significantly higher median final awards than contract cases decided by a judge ($25,000).
  • Almost half (47%) of all civil bench and jury trials in 2005 had multiple defendants, and more than a quarter (29%) had multiple plaintiffs.
  • Among tort trials, plaintiffs were most likely to win in cases involving an animal attack (75%), followed by motor vehicle accident (64%), asbestos (55%), and intentional tort (52%) cases. Plaintiffs had the lowest percentage of wins in medical malpractice trials (23%), product liability trials that did
    not involve asbestos (20%), and false arrest or imprisonment trials (16%), compared to plaintiffs in other tort cases.
  • In contract cases, plaintiffs won in the majority of trials for all case types except subrogation (28%), which involves an insurance company seeking to recover the amount paid on behalf of a client. Mortgage foreclosure cases, in which the plaintiff was either a mortgage company or other financial lending institution, had the highest percentage of plaintiff winners (89%) of all tort and contract cases in 2005.
  • Almost two-thirds (62%) of all plaintiff award winners were awarded $50,000 or less. A small  percentage (about 4%) of all plaintiff award winners were awarded $1 million or more.
  • In 2005, jury trials for general civil cases lasted almost four days on average. Bench trials lasted almost two days.
  • Cases heard before a jury took more time from filing of the complaint to rendering of the verdict than those heard before a judge. On average, the processing of a case required an additional half year for a jury trial (26 months), compared to a bench trial (20 months).
  • Appeals were filed with the trial court in 17% of general civil trials concluded in 2005.  Plaintiffs filed appeals in 5% of general civil trials in which they prevailed, and in 15% of civil trials in which they did not win any monetary award. Defendants gave trial court notice of appeal in 12% of civil trials with a plaintiff winner, and in 2% of trials in which the plaintiff did not receive an

Incidentally, 4 New Jersey counties were used in the study: Bergen, Essex, Middlesex (all in the 75 largest nationwide) and Union.

What’s the take-away for disputants?

  • Your case is unlikely to see a trial.  If it does, your case will drag out for 2+ years and…
  • Your chances of winning (as plaintiff or defendant) is a roughly 50-50 crap shoot (factoring in a margin of error for sampling error).
  • Then there is a 1/5th chance the case will continue on appeal.
  • The chances of winning punitive damages or a windfall are very small despite the aspirations of plaintiffs.

Obviously, each case is unique to a large degree, but in every case that comes before me as mediator or arbitrator, both parties think they are right and will prevail.  The statistics do not bear that out (and it’s impossible for both sides to win at trial as it’s not set up to find win-win outcomes as mediation tries to do).

The litigation process is changing, which lends itself to mediation or arbitration.  Mediation and arbitration gets the case resolved in a shorter period of time for less money while retaining the due process each person is entitled to.  It’s your day in court outside of court.

If you’re looking to resolve your dispute less expensively and more quickly than going to court, please contact me to see how I can help you.

Is Arbitration Better than Litigation?

This question is one of the big debates going on in the legal and ADR/CDR worlds.  Arbitration is essentially a private court (actually, that’s what tv shows like “People’s Court” and “Judy Judy” are).  The advantage is generally lower costs for all the parties, quicker hearings and relaxed rules of evidence.  The disadvantage is that the arbitrator’s ruling can only be appealed on very narrow grounds (fraud, conflict of interest, abject disregard for law, etc.).  Courts generally uphold the sacrosanct nature of the limited right to appeal.  So, if you don’t like the ruling of the arbitrator, you’re stuck with it.

You may not realize it, but more and more agreements you enter into contain mandatory arbitration clauses.  Credit card agreements are the big one.  Who reads those things when you sign up?  Not many people do (it’s long, boring, in small print and in legalese that the average person may have trouble understanding).  But then they get into financial trouble, default on their account payments, get scared and ignore all the arbitration notices, miss the hearing and have a default judgment against them that cannot be vacated and have little recourse afterward.  This and the converting of arbitration proceeding closer to a court trial (with higher discovery costs) are the main criticisms leveled at the arbitration process.

The U.S. Chamber for Legal Reform (an arm of the U.S. Chamber of Commerce — who represent businesses) has come out with a study showing how credit consumers are better off going through arbitration than litigation.  They compared arbitrations in California to a “random sample” of trials in New York City courts.  Their study claims that in 32% of the CA arbitrations the consumer prevailed versus 7% in NYC courts.  The arbitrations resulted in a lower default rate (47% vs. 80%) and a higher settlement rate (21% vs. 6%).

Companies like to use arbitrations because it limits their expenses on collecting on delinquent accounts.  So, in analyzing the study, consider the sponsor (and their motivations).  Also, you would be right to question if apples and oranges are being compared.

The debate will continue.