Legal Process Reform

The constitution provides for a trial of a jury of our peers—not lawsuit settlement.

The lawsuit settlement process subverts the right of being heard by a jury of ones peers as required by the U.S. Constitution in Article III. Section 1.1 which states

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferiour Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

A day in court is subverted because of the cost, the time and the pressure by judges and lawyers toward lawsuit settlement. Yet lawsuit settlement does not allow the party who is right to prevail to the extent of that rightness but only to the extent of a negotiation which may be more of a function of the parties personal situation than their rightness. Their rightness is determined by the Constitution which does not mention lawsuit settlement.


Reduce legal fees, court costs, and awards to reduce the pressure toward lawsuit settlement.

High legal fees, high court costs and high awards all act as an inducement toward lawsuit settlement to limit risk. The effect of increasing expenditures on everything is to cause one to avoid using the courts in the first place and therefore to reduce the court’s docket. This is the opposite of what one would wish for in a democratic society guaranteeing access to the courts.

Judges with pride will tell you how many cases in their court are settled prior to trial therefore reducing their case docket and ostensibably saving taxpayer’s money. It is one of few instances in which they seem concerned about the taxpayer’s money.

But the number of cases on a court’s docket or the amount of taxpayer’s money saved has no bearing on one’s constitutional right to have a fair trial by a jury of one’s peers. And forcing lawsuit settlement by the system is not affording one his constitutional rights.

However, the legal fraternity argues that since 97% of all cases (see survey) are settled if we did not have this mechanism no cases would ever go to trial. This is a curious argument. If we afford people the justice to which they are entitled then they would not be able to have it. More likely it is an indictment of lawyers and judges and the system over which they have total control. A result of less lawsuit settlement and slower justice might be that lawyers would be less successful in encouraging people to sue and people would work out their problems without the use of the courts. Maybe by approaching their elected representatives to improve the system? Lawsuit settlement comes at a cost to our society. In a large number of ways.

Since one’s attorney and the opposition’s attorney are expensive, and the legal process is complicated, and the courts are inefficient the cost of seeing a case to conclusion is extremely high both in time, money and emotional cost. To reduce risk in a system that seldom works well many people settle the case so as to define the risk to a certain sum of money.

It suits the attorneys for both sides as well as the presiding judge for one to be intimidated by a poorly working system irrespective of the reason whether it be because of that system’s high legal fees, questionable seizures of property or anything else. Because you will then be more likely to use lawsuit settlement to define your risk to that certain sum of money.

In the same vein attorneys use the threat of large punitive damage awards as leverage to force settlement of cases. As Yale Law School Professor George Priest has observed, “the availability of unlimited punitive damages affects 95 percent to 98 percent of cases that settle out of court prior to trial. It is obvious and indisputable that a punitive damage claim increases the magnitude of the ultimate settlement and, increase[s] the likelihood of litigation.”1. See Victor E. Schwartz & 1George L. Priest, Punitive Damage Reform: The Case of Alabama, 56 LA. L. REV. 825, 830 (1996) (citing study of punitive damages in Alabama)

What about those defendants that don’t settle, and lose an eye-popping verdict at trial? In the new world of billion-dollar verdicts, oppressive bonding requirements may deprive a defendant of its right to appeal

Reduce the pressure toward lawsuit settlement and increase the accountability of both lawyers and judges

In civil litigation situations, a lawyers looks at factual situations and says to his client “this is the result we would get if we went to court” but they add “of course it would be prohibitively expensive to actually test my belief by going to court” and then he says “so we’ll settle this out for some cents on the dollar” and finally “because this is embarrassing to the other side we may get a quicker settlement if we offer to sign an agreement saying we’ll never discuss this matter in the future”. Notice what has been eliminated by this process: no judge or jury for independent evaluation of the facts, transfer of decision making to the lawyer(s), settling out at on some middle figure that may or may not be fair, and understanding that there will be silence about the dispute so subsequent evaluation of the lawyer(s) behavior is unlikely in other words no publicity, no “sunshine”.

Suddenly the person who is defending against the frivolous lawsuit is prepared to consider paying say $10,000 to settle the lawsuit rather than pay the $12,000 to a lawyer to defend the case. The math and the logic is irrefutable. Lawyers say it is always better to settle rather than try the case if the cost of going to trial is more than the cost of settling.

Beware of the lawsuit settlement squeeze play

Beware when you are in the middle of a lawsuit and your lawyer suddenly hits you with the "settlement squeeze play"!

A civil lawsuit is many things. For a plaintiff it is a way to justice. For the defendant it is a way to show that the plaintiff's estimate of the damages done or injuries sustained are too high. But for the lawyers a civil suit is a way to generate income.

The civil suit, in the common law system, comes to a head during "the trial". Here the parties have their arguments heard and evaluated by an objective entity (a judge or jury) that "decides" the case. This culmination is a very desirable thing because it gives each party a sense of relief and satisfaction even if they don't get what they want. There is a cathartic experience to having the case heard and an objective decision rendered.

Unfortunately, lawyers are just as strongly drawn away from going to trial. A trial means intense preparation: deposing opposing witnesses, coaching witnesses about their testimony, preparing opening and closing statements, going through jury preparation, preparing briefs on the points of law involved, etc. The tension between the lawyer's desire not to "go to trial" and the parties desire for the "cathartic experience" of getting a trial verdict, oftentimes manifests itself in the "settlement squeeze play" (hereinafter the "SSP").

The SSP can have several elements and litigant should be attuned to his lawyer introducing these elements into the discussion of the case:

1) The quality of the client's case is not as strong as it was earlier. When the case was first presented to the lawyer the case "looked good"; the lawyer was anxious to "help you". Now that the trial is approaching the "case has major problems" or "it looks weak here or there".

2) The opponent’s case which was formally "really just a frivolous case" is now "much stronger".

3) The crowning element (or blow) is the revelation that "the cost of going to trial will be 2, 3, or 4 times" what was originally planned. The impact of this "revelation" in the thirty, sixty to ninety days before trial is oftentimes explosive. The litigant has already paid several tens of thousands of dollars and has been budgeting a like amount to finish things up. Suddenly the economics of the lawsuit are changed completely. Large amounts of additional money have to be raised.

4) The icing on this cake is the lawyer's demand that the additional money be paid before trial. This puts additional pressure on the client to "settle or else".

5) The lawyer doesn't execute 1, 2, 3, and 4 against his client until he has the other attorney on board ready to slam the opposing party with similar tactics thus forcing a settlement.

The legal fraternity in America is proud of the fact that a high percentage of their clients "settle" their cases. This pride should be colored with a large dose of shame when one considers the tactics being employed to get these settlements.

There is one obvious protection against the cost escalation tactic and the pay immediately tactic mentioned in items 4 and 5 above. A pre engagement letter between the lawyer and client, (1) capping the total cost and/or (2) spelling out when unexpected payments would be due, would help a lot. Any experienced trial lawyer is going to resist such a letter so a litigant might have trouble getting a qualified litigator to represent him if he required such a letter. If Congress or the State Legislatures required that such letters be prepared for every engagement, the litigators would have to agree to them.