Entries Tagged as 'trial'

Trial Lawyers Task Force Recommends ADR and Mediation

In a previous posting, I discussed the American College of Trial Lawyers task force interim report on trials in America.  The final report is out and here are the highlights as it pertains to mediation and getting your lawsuit settled:

  • “Courts are encouraged to raise the possibility of mediation or other form of alternative dispute resolution early in appropriate cases. Courts should have the power to order it in appropriate cases at the appropriate time, unless all parties agree otherwise. Mediation of issues (as opposed to the entire case) may also be appropriate.”
  • The task force recognized that this is a controversial conclusion, but one represented in reality.
  • “82 percent said that court ordered alternative dispute resolution was a positive development and 72 percent said that it led to settlements without trial.”
  • “52 percent said that alternative dispute resolution decreased the expense for their clients and 66 percent said that it shortened the time to disposition.”

In New Jersey, we have a presumptive mediation program in state court.  Most cases are referred to mediation and most settle before trial.  Parties will be even better served by mediating their dispute prior to the expense and hassle of filing suit.  If you are looking to save money in resolving your disputes, please feel free to contact me to discuss your case further and how mediation can help.

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
    award.

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.