This article dramatizes the central role played by ADR in the everyday life of a civil law practitioner. The article is set in the context of a “day-in-the-life” of a hypothetical civil litigator. The purpose of the article is to focus on the pervasive and critical role played by ADR in civil law practice.
Being a civil “trial attorney” is a highly coveted and enviable position. Trial attorneys are the prosecutors and defenders of civil justice. They are the most highly skilled of all practitioners, with a comprehensive set of intellectual, presentational, and personal skills. Only the best and brightest can reach this pinnacle of individual success in the legal profession. It is the ultimate expression of personal and professional achievement. Fail.
For most lawyers (including civil litigators), trial is a rare event. Only a small fraction of lawyers, e.g., prosecutors and public defenders, engage in trial on a regular basis. Even litigation specialists can go for a years without a single trial.
With rare exception, most civil litigators and transactional attorneys are actually pre-trial attorneys. Most of their time is spent interviewing clients, drafting documents and pleadings, conducting pre-trial discovery, and resolving disputes and lawsuits before trial. Routinely, well over 90% of civil lawsuits are resolved before trial through some form of ADR (alternative dispute resolution), including negotiation, mediation, and arbitration, with a tiny percentage of cases being dismissed by dispositive motion or other procedural mechanism. While this may seem like an inglorious fate to some, this is the real workaday world of civil law practice.
In law school, the traditional case study method and over-emphasis on the trial process and related substantive, procedural, and clinical courses can create the (mis)impression that disputes inevitably lead to litigation, which inevitably leads to trial and, later, a published decision on appeal. This misimpression can lead to poor choices in class scheduling and course selection that do not necessarily optimize a law student’s law practice skills. Fail.
The reality is that most disputes are resolved directly between the parties during the pre-litigation or pre-trial phase. However, many curricular decisions are made by senior full-time law professors and administrators who have not practiced law in many years or decades. As law schools are undergoing an intense re-evaluation of their curricula to match the practical challenges of law practice, it would be wise to remember that ADR has gained universal recognition as the primary method of dispute resolution and that the trial process plays a very small role in the practice of most civil law practitioners.
Significantly lower enrollment in law school over the past several years has led to increased re-examination of the relevance and value of specific courses. Examining the role of ADR in law practice can be a useful tool in generating student awareness of the vital role played by ADR on a daily basis. Understanding the pervasive role of ADR in law practice can also assist those who are involved in curriculum design and development.
The reality of pre-trial resolution of lawsuits begs the question, if most lawsuits are resolved primarily through some form of ADR, would it be wise to focus time and attention on courses that develop ADR skills? If most civil lawyering takes place in the pre-trial period, or even pre-lawsuit, would it be a valuable use of time to consider taking courses that focus on proven methods for helping clients achieve optimal results during the pre-trial/pre-lawsuit period?
ADR in Everyday Law Practice
Because many law students–and some legal educators and administrators–are unaware of the critical and pervasive role that ADR plays in everyday contemporary law practice, let’s examine a day-in-the-life of hypothetical civil attorney Samantha Thompson (“Sam”). Sam is one of two partners conducting a general civil practice in a 5-attorney law firm. Sam employs a staff of 12 people, including three associate attorneys, 2 paralegals, a part-time office manager and a receptionist. Sam begins the week on a Monday morning. (All references are to google word searches for a relevant ADR technique for managing conflict)
7:45 a.m. Sam’s children, ages 8 and 10, are enmeshed in a knock-down, drag-out fight in the upstairs bedroom. Sam was planning to head into the office early in preparation for a 10 a.m. mediation conference. Best laid plans–Sam’s children are fighting over toys. On the way out the door, Sam sternly instructs the children to divide the toys 50/50 and to “share and share alike.” Sam feels like she has brilliantly managed the conflict and taught the children an important life lesson. Fail. (styles of negotiation; compromising). Gulping down a half-burned bagel, Sam hears her husband remind her that she has agreed to pick up the children from daycare at 5:30 p.m., to which Sam mutters, only half-focused, “Okay, whatever.” Fail. (styles of negotiation; accommodation)
8:15 a.m. On the way into the office, Sam’s hands-free car phone signals an incoming call–it’s Carl Wilson, at out-of-state attorney and opposing counsel on a case Sam is trying to settle through negotiation. Carl makes a “bottom line” offer, which Sam considers insulting. She feels he is being condescending. Instead of responding strategically, Sam reacts emotionally and decides to “get tough” with Carl by telling him his offer is “ridiculous” and that he cannot “nickel and dime” her. In the process, Sam narrowly avoids another car that is moving into her lane. The call is dropped. She’s exiting the highway and getting ready to enter her parking garage. She’ll have to call him back later. Fail. (competitive bargaining; deferring; word choice in negotiation; acting strategically)
9:00 a.m. Sam’s secretary wants to talk about the schedule for the day. The secretary launches into a jumbled, disorganized rendering of all the appointments, “to do” activities, and “must do” activities. It’s overwhelming, so Sam shuts down and tries her best to appear as if she is still listening. Fail. One of the critical points–Sam must decide which court reporter will get her business for the next year and what the terms of engagement will be. One candidate is scheduled to meet Sam at 1 p.m. to go over the terms of a potential one-year contract. Sam hasn’t even had time to research the offer made by the court reporter’s office or to consider what might happen if Sam fails to reach an agreement. Fail. Overwhelmed, Sam snaps, “We’re going to have to go over all that after the mediation that is set for 10:00 this morning.” Fail. (BATNA, active listening, preparation for negotiation, setting an agenda)
9:30 a.m. Sam meets with her client, an insurance adjuster, to discuss the upcoming mediation. Sam wants to retain the client, so she stays quiet while the adjuster talks about how unprofessional the plaintiff’s attorney has acted, how the claims file is missing documentation about damages, and how the adjuster wants to “send a message” to the plaintiff’s attorney. Before Sam manages to sort through the claims adjuster’s points, it’s time to start the mediation process–without any coherent plan of action. Fail. (preparing for negotiation/mediation; setting an anchor; aspiration price; reservation price; identifying interests)
10:00 a.m. Sam presents her case in the mediation conference in a compelling, highly adversarial manner. Fail. In asserting her case, Sam interrupts opposing counsel. Fail. To make her point more forcefully, Sam also interrupts the mediator when s/he intervenes to manage Sam’s interruption. Fail. Sam presents her arguments in negative terms, e.g., her client doesn’t want the case to go on forever and doesn’t want to spend more money on the litigation process and, at the same time, her client doesn’t want to roll the dice at trial on a case that is highly technical and very likely over the heads of most jurors. Fail. The mediator talks about Sam’s interests in finality, timing, managing risk, and control over the process. Sam briefly, but strenuously, repeats her points in negative terms, setting a pointedly pessimistic tone. Fail Proudly, Sam anticipates praise from her client during the first mid-morning break in mediation. Instead, the claims adjuster mutters something about things “not going in a good direction.” Fail. (advocacy in mediation; collaborative and competitive styles of negotiation; facilitative role of mediator; reframing)
12:45 p.m. The mediation concludes unsuccessfully and Sam realizes she has missed an in-office lunch appointment with her partner, who was going to meet for a case evaluation. Sam believes the evaluation meeting is totally unnecessary because she is 100% sure she will win the case. Fail. Sam wolfs down a microwave bowl of soup from her desk (how long has it been there? No time to worry about that). (lawyer overconfidence, endowment effect, change blindness)
1:00 p.m. The court reporter is stuck in traffic, so she will be 15 minutes late. Making use of the time, Sam looks at the material in the “urgent” stack on her desk: a contract for a small business client that must be reviewed (should a binding arbitration clause or some other dispute resolution process be inserted?), a reminder note from her secretary that it’s time for the annual performance evaluation and “salary raise,” a draft letter of engagement for one of Sam’s new clients, and a paralegal’s discovery summary, which Sam scans in a cursory way, certain that there is nothing new in the information. As a result, Sam doesn’t notice that a new witness has been identified in the discovery and that the witness has adverse information. Fail. (change blindness; drafting ADR clauses, negotiating workplace issues)
1:15 p.m. Sam meets with the court reporter. Sam likes her, but feels she does not have enough information to ask the right questions during the interview. Fail. While the court reporter is talking about proposed terms of engagement, Sam is consumed by worries about her two children (did she do the right thing that morning; why aren’t they getting along), law firm finances (settlements and verdicts have been few and far between lately, creating a cash flow crunch), and personal relationships (she has put off her 10th anniversary celebration dinner with her husband–again). Fail. (asking effective questions in negotiation; preparation for negotiation; active listening; mind chatter; managing internal dialogue)
2:00 p.m. Carl Wilson is on the telephone again, irate that his earlier call was dropped and that Sam didn’t call back. Carl wants a counter-offer from Sam, who leafs through the file, but she can’t find the specific numbers that were part of the last round of negotiation. She’ll have to call him back. Fail. She wants to make a monetary counter-offer, but she has a vague feeling that her client won’t be satisfied with money alone. Fail. Unfortunately, Sam doesn’t know how to expand the negotiation to include a broader range of terms (deferring; reciprocity in negotiation; retreating within negotiation; diagramming concessions; interest-based bargaining, integrative bargaining)
2:30 p.m. While Sam is trying to figure out what specifically her last offer was in the negotiation with Carl Wilson, she feels the urge to make Carl wait for an answer, just to tie him up on the deal a little longer. He can’t talk to her like he did that morning! Carl’s a jerk. She’ll show him. Fail. Sam wants to find out whether Carl has any flexibility, but she doesn’t know how to probe for that information without telegraphing desperation. Fail. After finally finding her scattered notes on the proposed negotiation terms, Sam calls Carl back and opens the telephone call with an attack on Carl’s last offer. Carl reacts by lashing back at Sam–something about the facts of the case (Sam only heard the points that were favorable to her case) and something about the fact that Sam had no trial experience in this kind of case. Sam is completely comfortable with her “get tough” approach to negotiating, even if it is producing resistance and hostility in opposing counsel. Fail. Carl terminates the call without receiving a counter-offer from Sam. Fail. (acting strategically rather than reacting emotionally; attribution; asking effective questions; Dunning-Kruger Effect; unconscious incompetence; competitive arousal; pacing negotiation; assimilation bias; bracketing; reciprocation in negotiation)
3:00 p.m. Sam reads a reminder on her computerized case management system that there are only 30 days left before an upcoming arbitration. After scanning the file, Sam decides to take a few minutes to develop a pre-arbitration plan, which consists mostly of reviewing the file and preparing word-for-word scripts for her witnesses. Fail. Sam’s last arbitration dragged on forever because there wasn’t time for Sam and opposing counsel to narrow the issues or to talk about witness scheduling before the hearing. Fail. Sam also learned, during the arbitration hearing, that one of her witnesses had become unavailable and that there was very little evidence in the file on the issue of the defendant’s duty. Fail. In the prior arbitration, the arbitrator rendered an award that was ridiculously high. As she prepares for a 4:00 o’clock meeting on an unrelated case, Sam receives a call from the court, indicating that an upcoming trial has been continued for the second time due to conflicts in the court’s calendar. (stipulations; using an evidence chart; advocacy in arbitration; preparation for arbitration; high-low agreement; outlining witness testimony)
4:00 p.m. Sam meets with another attorney downstairs in the same building to discuss a new lawsuit filed by the attorney. While talking to opposing counsel, Sam decides to “get down to business,” so she presses for facts and evidence that allegedly support the other party’s case without showing a corresponding willingness to informally share information. Fail. Sam fails to notice, by looking around the office and taking time to chat with opposing counsel, that she attended the same law school (diploma on the wall), and that she shares an interest in European history (books on shelf), and that opposing counsel enjoys skiing (photograph on desk). Fail. Opposing counsel is put off by Sam’s brusque approach. The meeting ends with little information exchange and much withheld. Fail. (liking; principles of persuasion; exchange of information; controlled disclosure in negotiation)
5:00 p.m. Sam has so many loose ends to tie up. The “to do” list has grown longer, not shorter. If only she had more time. She remembers that she agreed to pick up the kids at daycare and resents the fact that her husband couldn’t cover her today. When she picks up the children, they are still arguing about the toys. Sam hits heavy traffic on the way home, so she is late for her anniversary dinner. Upset, her husband complains, “You’re late–again. You really don’t care, do you?” Sam tries to brush it off by saying she’s sorry for being late and then she launches into a long and detailed list of the reasons why she was unavoidably late. (accommodation, apology, empathy)
After a long day, Sam is feeling harried and stressed. She tries to prop herself up emotionally by thinking she “wouldn’t do anything differently,” yet on some level, Sam is feeling that many issues were left unresolved and poorly handled. Without the benefit of training in ADR, including negotiation, mediation, and arbitration, Sam cannot even identify the areas where she could strengthen her skills as a pre-trial advocate. Sam isn’t knowledgeable enough with ADR analysis and terminology to know where to start in her professional development.
With training, Sam would not have to live with nagging feelings of incompetence and, instead, she would have a clear conceptual framework to handle any aspect of ADR skillfully and effectively. Sam could feel personally and professionally rewarded for mindfully managing the ADR challenges presented during an average day in the life of a practicing civil lawyer. Sam doesn’t need more time, which is a commodity that will always be in short supply. Instead, Sam needs to learn how to work smarter to take full advantage of the benefits of ADR for the sake of her clients and herself.
*Note: Criminal law practitioners face similar dispute resolution issues in a different setting. Plea negotiations occupy a good deal of a criminal lawyer’s time. Criminal law specialists face many of the same administrative and business issues as civil lawyers. In addition, there are issues involved with navigating through a governmental system with its well-established regulatory framework. The core skills and techniques learned in ADR courses, however, can be easily transferred to and applied in the criminal law setting.
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