“Private Justice”
Although I am a proponent of the U.S. Constitution and the right to trial by jury, I must confess some level of frustration and doubt of its efficacy, particularly in civil cases. I am not convinced that we cannot establish a system that is as fair and much more efficient. This idea was born out of my frustration and lack of success in the jury system. My distinct impression is that the current system favors defendants, and has for all of my career. And for that reason, this may never get off the ground. We must therefore acknowledge this fact, and take special care to ensure that defendants and insurance companies trust that an arbitration arrangement is in their interests too. My suspicion is that an arbitration panel would be more plaintiff-friendly than an average jury, so we must take care that, if this is true, that we make up for it in speed, efficiency, and conservative results.
Mediations are popular at the moment. Mediation is a meeting of the parties officiated by a “mediator.” The goal of mediation is to resolve the case by settlement. Fine.
I like the idea of submitting a case to a body, but not a jury. Juries are too cumbersome, the civil rules and rules of evidence are unwieldy, and I am convinced that a good arbitration arrangement will yield equally just results.
The Panel. So, who comprises the body? To me this is the most important aspect of our service. The parties must know that if bias cannot be eliminated, it must be neutralized as much as possible. The clear answer is a panel selected by the parties themselves. Each should select an arbitrator, and each should select the third party neutral by agreement. If an agreement cannot be reached about the third party neutral, then the two arbitrators should select the neutral. The parties must believe they get a fair hearing, and this process should limit those occasions where a party feels he/she did not receive a fair hearing.
I would start over with the rules of evidence. The rules of evidence serve a purpose, but the process grinds to a slow crawl because of them.
In our arbitrations, written reports of experts is not optional; it is necessary. I would give each expert two opportunities to express his/her views. An initial report by plaintiff’s expert; a response by the defense expert; a reply by the former; and a reply by the latter. Whether the hearing would be conducted with written reports or by live testimony is negotiable.
Cost. Our arbitrations must be cost-effective, but cannot be “cheap.” A good lawyer will charge $1,000/day for his services (sometimes much more), so let’s just estimate that an arbitration will run $3,000/day or $1,500/half day. But is a jury trial less expensive than that? An arbitration panel could absorb more information in less time than a jury could. And an arbitration panel can hear and decide a case in a fraction of the time it takes a jury to do so. Forget voir dire; rules of evidence; opening/closing remarks; etc. The goal on the one hand is to attract panelists, and on the other to deliver results in a cost-efficient manner. I firmly believe that a well-run arbitration will save everyone time and money, and can (and must) deliver sound, just results.
Do Lawyers Have a Role? Absolutely. In fact, my aspiration is that we will attract diligence and smart efficiency, and repel actors. With juries, we seem to attract pomposity and grandiosity instead of steadfast adherence to science and evidence.
Will this work? My biggest concern is that the insurance industry will not submit to this system because (from my perspective) they do very well in the current system. It is my belief that the insurance industry does sometimes utilize the ineptitude of our courts to delay payments. That so many cases settle immediately before trial should tell us that plaintiffs and insurance companies are not evaluating cases early enough. It is for this reason that the arbitration panel members must adhere to neutrality above interest or some other agenda. The result has to be free of passion and sympathy, just as we admonish our juries. We don’t ask our panelists to take oaths; we make them understand that arbitration will not survive unless the panelists are fair and reasonable. They must possess the strength of character to deliver a defense verdict when appropriate, and a fair and just plaintiff’s verdict when appropriate.
The Franklin County Court of Common Pleas had and still has an arbitration option available to the parties, but the judge appoints a third party neutral, rather than the parties selecting one. Big mistake. With appointment comes all sorts of issues we have too much of already.
So let’s try it. It cannot be much worse than the jury system we now have. And I believe strongly it can be much better.
Call me if we can arrange an arbitration of your case.
