Part 2 in the series
The proliferation of mediators and mediations is obvious. Any case that doesn’t settle is a “failure.” The pressure to settle cases is so intense that there is almost a sense of guilt when we have to go to trial. Yet, we continue to evaluate plaintiffs’ PI and employment cases on the basis of what a jury will award.
How can we make such an evaluation if there are so few trials anymore?
4 Factors In Going To Trial or Not
- Mediation: are we trial lawyers, or are we simply becoming negotiators? And this negotiation, is it like poker? Is bluffing one’s way through a mediation with misstatements and outright lies the way we properly resolve cases? I sometimes tell mediators that some cases need to be tried and there is nothing wrong with a mediation that ends with a decision to proceed to trial. Rarely does a mediator agree with this. They “failed” because we are going to have a jury trial to resolve the case.
- Expense of Trial: the increasing expense of trial is well-known. Trial requires expert testimony, and experts are becoming increasingly expensive and are often treated with hostility by judges who see them as nothing more than paid advocates. In addition to experts, lawyers now bear the expenses of court costs including reporters’ fees and other fees that traditionally were borne by the courts
- Advertising: advertising is a deterrent especially when it leads to treating the law as a business and not a profession. Lawyers who are in the “personal injury business” for the sole purpose of making money will never step foot in the courtroom. If we judge our success solely by how much money we make, then who cares about a trial? We are perhaps more interested in how much money we make than whether we’re doing right by our clients or even chasing that elusive concept of “justice.”
- Politics: politics, particularly the advent of tort reform, has become an increasingly serious problem for plaintiffs’ lawyers. It’s become worse in the last 10 years. Conservative court rulings and the failure to make fundamental changes in our medial malpractice laws make it increasingly difficult to try cases: it is outrageous that we haven’t changed the medical malpractice tort reform laws passed 35 years ago. With a $250,000 MICRA cap on general damages and a cap on our attorneys.
