It is the stated and official policy of the state to encourage the informal settlement of lawsuits. Yet all too often, I don’t see the Courts giving maximum effec to this policy. I’ve heard it said that this is because the judge wasn’t a civil practitioner, or they forgot what it’s like to have a paying client. Perhaps that is so, but that’s awfully dismissive to me.
What I really think it is is that the Judges are getting mixed signals from the Judicial Council and the Legislature. Sure, we put policies in place to settle cases. Here in Santa Barbara County, just about every civil case is sent to a sort of pre-mediation. But at the same time, the fast track rules sometimes work against settling the case efficiently.
The pressure to try cases within one year is unrealistic in most cases. First, there’s the increasingly sharp practice surrounding written discovery. It can take you three months to propound, meet and confer, and then have a motion to compel decided. Second, there’s the 75-day summary judgment rule. Third, some of us at least attempt to work around people’s real-life schedules, both of the parties and of the attorneys. Sure, we can take a depo in 10 days, but what would happen if we really had to live by that all the time?
That means you will probably use up half of that time doing discovery and waiting for an MSJ. If you go through any cycles of pleadings motions or anything else, that more or less uses up all of your time.
And if the Courts analyze whether feet are being dragged based on the progress in discovery, they aren’t helping. Discovery is the most expensive part of the case before trial, and can cost even more than a trial in some cases. If we have no choice but to keep going full bore on discovery, the amount that can be saved by a settlement only gets smaller for Defendants, and the amount Plaintiffs need to recover only increases–not a recipe for easy settlements.
I think mediation is worth a try in just about every case. If the parties agree, and they agree to a discovery moratorium in the mean time, they shouldn’t be punished for doing this. If no one is interested, then the courts should crack the whip. But otherwise, I think courts would do well to let nature take its course and help to midwife a settlement, which is, as the oft-cited statistic goes, the outcome in 98 or 99% of cases.
The optics of cases not getting to trial for years is bad. But, if only 1 or 2% of cases get there, it’s not the problem that it sounds like.
This is not to say that I necessarily think trials are bad. If we had more streamlined rules for civil cases that could get us there at a lower cost, it would probably be better. But that isn’t the case, so settlement is really the only thing that works out for most people.
