Reprinted from Alternative Dispute Resolution Client Strategies, Aspatore Books
Reinventing Justice through Comprehensive Adjudication
Richard Grossman
Founder
Intelligent Justice
An emerging form of alternative dispute resolution promises to completely transform the delivery of civil justice for those who desire a more thoughtfully analyzed outcome resulting from a more cost-effective process. Known as “comprehensive adjudication,” it strips away the excessive delay, arcane procedure, and duplication of effort embedded in our public court system and swiftly provides true justice in a dramatically more effective manner. More importantly, the comprehensive adjudication process controls the most inefficient aspect of our adversary system of justice — its reliance on hired adversaries.
Flaws in the Adversary System of Justice
Anyone who has attempted to resolve a complex legal dispute through our public court system knows the process is extremely flawed. A verdict can be obtained only after years of delay and extraordinary cost, and the risk of an unjust verdict is unacceptably high. The inefficiency of our adversary system has caused attorneys’ fees to skyrocket, often leading to legal costs that approach or exceed the amount in controversy, even when there is a great deal at stake.
Hence, nearly all court battles settle before trial. To facilitate those settlements, the parties that deserve to win must make substantial compromises. However, they are forced to abandon the pursuit of what they know to be right because they cannot count on the court system to provide them with justice — and the cost of pursuing an unpredictable result far outweighs the benefit of gambling on it.
What causes this process to be so flawed? The answer is that our adversary system of justice is based entirely upon an assumption that most of us no longer accept. The public court system assumes that truth and justice will somehow emerge from conflicting versions of the facts that are presented by attorneys representing each of the parties. There certainly is no scientific evidence that an adversarial process leads to a just result, and those of us who have tried to divine the truth from the factual spin and exaggerated claims of trained adversaries know how difficult that process can be. Yet we have based our entire public court system on an adversarial process, hoping it will magically yield just results in a consistent manner.
Duplication of Effort
The result of our reliance upon an adversarial process is extraordinary inefficiency and duplication of effort in the public court system. Each of the hired adversaries needs to learn the same facts and research the same legal authorities, requiring each of the parties to pay a tremendous cost for multiple lawyers to do essentially the same work. Sometimes there are numerous parties and dozens of attorneys, and they must review the same evidence, attend the same witness depositions, research the same law, brief the same motions, and prepare for the same trial. Often, each of the parties must retain medical, economic, or scientific experts who are required to review the same evidence and perform identical analyses so they can testify as expert witnesses. Each of the parties also must prepare presentations of the same evidence for review by the judge when dispositive motions are filed in an effort to convince the court to decide the case without holding a trial. When those dispositive motions fail, as they often do, both sides prepare the evidence again for presentation to a jury, and then the trial record is analyzed again and presented by both sides on appeal.
In addition, there is an incentive to employ every procedural strategy imaginable for the purpose of obtaining a tactical advantage. Discovery procedures often are abused by counsel who attempt to place unwarranted burdens on opposing parties. Unfocused discovery demands are sometimes used to require parties to produce massive quantities of documents and electronic data. On the other hand, attorneys for the responding party often obstruct even the most reasonable requests for fact discovery with refusals to comply, meritless objections, and lengthy discovery motions.
The lawyers also engage in strategic maneuvering by filing motions and performing work on a host of tactical issues that have little or nothing to do with the merits of the case (e.g., jurisdiction, venue, bifurcation of the proceedings, discovery disputes, procedural motions, scheduling issues, meet and confer sessions, status conferences, case management conferences, pre-trial conferences, mock trial sessions, jury analysis and jury selection, to name just a few). Hence, the vast bulk of effort and expense is invested in litigation tactics that have little connection to the substance of the dispute.
The cost of this gamesmanship and duplication of effort is astronomical, and the resulting delays often seem interminable. All of this tossing and turning is required solely to accommodate the needs of a system of justice that is predicated upon the unproven assumption that truth and justice will magically emerge out of an adversarial process. There has to be a better method for analyzing and deciding complex legal disputes — and there is.
A Better Method
The concept behind comprehensive adjudication is quite simple. Instead of each party separately hiring a throng of litigators, the parties jointly retain a single adjudicator who, with the assistance of a single expert legal staff, zealously investigates, analyzes, and decides all of the claims and defenses of all the parties. There is no waste or duplication of effort. The adjudicator performs the analytical and investigatory roles traditionally performed by the parties’ separate counsel, as well as the adjudicative role traditionally performed by a judge or jury. The result is a final resolution of the dispute that can be quickly confirmed as an enforceable judgment under the authority of the Federal Arbitration Act or similar state statutes.
The adjudicator is retained by agreement of the parties based upon his or her reputation for integrity, thoroughness, intelligence, and efficiency. By jointly selecting an experienced legal professional to decide their dispute, the parties avoid the risks they inevitably would face in the public court system where they have no control over the abilities of the judge who is assigned to their case and must live with the biases and untested legal skills of the jury that will decide their dispute. In an adjudication, the parties typically choose a highly credentialed litigation attorney to decide their dispute — someone who has the ability to skillfully discover and focus on the relevant evidence, efficiently examine witnesses under oath, carefully analyze the applicable legal authorities, and fairly decide the case. Often, the parties are assisted in the selection process by a firm that specializes in adjudicated resolutions to legal disputes.
The chosen adjudicator is not beholden to any of the parties and has no interest in the partisan side disputes and procedural jockeying that often plague the adversarial process in our traditional court system. The adjudicator’s only loyalty is to a just result.
Benefits of Adjudication
The comprehensive adjudication process has numerous advantages. First, the adjudication “trial” commences the day after the adjudicator is selected and continues, in the form of an ongoing investigation, until the process is completed. The parties are not forced to wait two or three years for a trial to commence in the public court system. The adjudicator promptly researches the law, scours the evidence, and examines witnesses under oath just as attorneys do in the public court system. However, that law, evidence, and testimony immediately create the trial record that will soon be the basis for deciding the dispute. There is no need to repeat the process of presenting the law and facts in motions before an overburdened public court judge, and it is not necessary to repeat that presentation yet again for a jury several years down the road. Instead, the adjudication process takes place promptly whenever and wherever the evidence and witnesses may be found, and it proceeds in the most efficient manner possible until the adjudicator thoroughly understands the law and facts and is able to provide a just resolution.
There also is no need for the summary disposition procedures that often consume tremendous time and expense in the public court system. After zealously researching the law, the adjudicator will quickly reject specific claims or defenses if the law forbids them. Likewise, after zealously uncovering the evidence, the adjudicator can swiftly decide the entire controversy, particularly if there is no dispute regarding the material facts. The enormous effort that lawyers put into motions to dismiss and motions for summary judgment in our public court system is replaced by a much more efficient process for deciding the dispute.
The consolidation of the fact discovery procedures, summary disposition proceedings, and the entire trial into a single, streamlined process allows the adjudicator to provide the parties with a thoroughly researched, thoughtful decision swiftly and cost effectively. Additional litigation expense is avoided because, unlike the hired adversaries in the public court system, the adjudicator is able to focus exclusively on the merits of the dispute without the distraction of side disputes, court procedures, and strategic maneuvering.
The adjudicator’s ability to focus exclusively on the merits of a case provides the parties with a much greater degree of certainty about the investment of time and money that will be necessary to properly decide the dispute. Because the cost of the adjudicator is shared by the parties, adjudication firms are able to provide a thoroughly analyzed verdict at half the cost required to pay separate counsel to litigate the same case in the public court system. The enhanced predictability of that cost also allows us to break it into predetermined, capped monthly payments that provide the parties with the financial regularity that is needed for budgetary purposes.
Of course, the parties are free to retain separate counsel to monitor the adjudication if they wish, but it certainly is not necessary. The role of separate counsel is substantially diminished because the adjudicator is responsible for zealously investigating the claims and defenses of all parties. If separate counsel participate at all, they generally focus on helping their clients frame the scope of the dispute for the adjudicator by identifying their client’s claims or defenses at the inception of the case. Lawyers also can play a role by counseling their clients on the advisability of settlement as an increasing amount of light is shed on the strengths and weaknesses of their claims and defenses during the course of the adjudication process. However, placing the responsibility for thoroughly researching the law and zealously investigating the facts on the shoulders of the adjudicator makes it possible for the parties to split the cost of the most expensive parts of the litigation process instead of paying separate law firms to essentially do the same work. This allows the parties’ lawyers to focus on a much less expensive but higher level of service to their clients — acting as a legal counselor who frames the issues in the dispute and advises the client on settlement — instead of playing the role of a courtroom gladiator.
The Adjudication Process
The adjudication process begins with a meeting between the parties and the adjudicator to discuss the details of each party’s claims and defenses and to identify the likely witnesses and sources of written or electronic evidence. Although those claims and defenses can be refined further as the adjudication progresses, the initial meeting allows the adjudicator to gauge the amount of work that will be required to analyze and decide the dispute, develop a plan for completing the work, and estimate the cost to be split by the parties.
Analysis of the law and discovery of the evidence commences immediately. That process includes numerous advantages over the evidentiary discovery process in the public courts.
The adjudicator is empowered by federal and state law to subpoena documents and examine witnesses under oath. Although subpoenas may be useful to obtain evidence and testimony from third parties, they generally are not necessary when working with the parties. Indeed, the parties generally are motivated to cooperate with the adjudicator’s efforts to gather the evidence for several reasons. First, without access to the relevant documents in a party’s possession, the adjudicator will not have the evidence that is necessary to support the party’s claims or defenses and will be unable to rule in the party’s favor. Second, the parties do not want to antagonize the adjudicator. Although lawyers often engage in discovery disputes with opposing counsel in the traditional court litigation process it would be foolish for the parties to frustrate the work of the person who controls the outcome of their dispute. It is widely understood that parties who obstruct the process lose a tremendous amount of credibility with the person they most need to believe them. Moreover, if a party were to deliberately withhold evidence, the adjudicator might draw reasonable, factual inferences from the fact of non-disclosure against the withholding party and rely upon those inferences in deciding the dispute.
In the public court system attorneys seeking discovery are forced to guess about the types of documents in their adversary’s possession that may be relevant to their claims or defenses. They also know their adversary will not provide documents that are not specifically requested, and even then, opposing counsel will resist the production of documents on every ground imaginable. Hence, demands for the production of documents served upon parties to a public court dispute often are drafted very broadly to encompass any conceivable category of documents that could possibly contain relevant evidence. Those overbroad demands frequently create an undue burden on the producing party. However, unlike the adversaries in traditional court litigation, the adjudicator has no need or incentive to make document requests that are overbroad or unduly burdensome. Instead, the adjudicator works directly with the parties’ employees to focus discovery exclusively on the specific sources of evidence that are truly relevant to the dispute.
Parties in public court proceedings often are forced to bear the exorbitant cost necessary for their legal counsel to screen enormous quantities of electronic and paper documents for relevance, confidentiality, and attorney/client privileged material in advance of a document production to their adversaries. This entire pre-production review cost is avoided in the comprehensive adjudication process. The adjudicator simply rules upon the relevance and admissibility of the evidence immediately upon its production, thereby eliminating the adversarial battles over trial exhibit lists, admissibility, and in limine motions that often plague public court trials. Inadmissible material that is rejected through this process is not considered by the adjudicator in reaching a decision in the case, just as a judge would reject inadmissible evidence in a public court proceeding. Relevant evidence is catalogued for later use in the written opinion that will explain the adjudicator’s ultimate decision.
The adjudicator examines witnesses under oath in much the same way that attorneys take discovery depositions. There are some important differences, however. In public court litigation, the deposition testimony is primarily for discovery purposes, and the witness must be subpoenaed to testify again at trial several years later. The deposition transcript can be used at trial only if the witness is beyond the geographic subpoena power of the local court, and in those instances, the judge and jury are unable to observe the witness’s demeanor for purposes of judging credibility. In the comprehensive adjudication process, the initial sworn testimony is the trial testimony. The adjudicator examines the witness under oath wherever the witness is found. There is no need to repeat the process again at a subsequent trial, thereby eliminating the problems associated with compelling the witness’s appearance in a sometimes distant court.
The adjudicator also is free to consult with neutral technical, medical, economic, or industry experts in order to obtain expert opinion testimony on issues that are outside the scope of a law practitioner’s knowledge. The number of neutral experts who are consulted is completely within the control of the parties. However, it will not be necessary for each party to have experts who duplicate each other’s work, as often is the case in public court litigation.
At the close of the evidence-gathering process, the adjudicator makes conclusions concerning credibility and assembles the evidence in written findings of fact. The adjudicator then decides the case citing the relevant legal authorities in written conclusions of law and publishes the written decision to the parties. The adjudicator’s decision can be quickly converted into a court judgment under the authority of the Federal Arbitration Act or similar state law statutes.
Unlike litigation in the public courts, disputes can be resolved through private adjudication on a confidential basis. At a minimum, any proprietary information that is brought to the adjudicator’s attention during the discovery process will be protected from public disclosure through the use of a protective order. However, the parties also can agree to keep the entire dispute confidential if they so desire.
Once confirmed as a court judgment, the adjudicator’s decision may be appealed to public courts of appeal only under extremely limited circumstances. This often is seen as an advantage, because it brings an expeditious end to the litigation process. Alternatively, the parties to the adjudication may agree in advance to allow appeals to a panel of private appellate specialists who can review the adjudicator’s work for any legal error. Such a process can provide the parties with the assurance that the adjudicator properly resolved the case without the lengthy appellate process required to appeal a verdict in the public court system.
Adjudication Versus Other Forms of Dispute Resolution
The unique benefit that parties to a dispute receive from comprehensive adjudication is the joint use of a single adjudicator and legal staff to rigorously perform all of the legal analysis, fact discovery, and evidentiary review concerning the claims and defenses of all parties before deciding the dispute. No other form of dispute resolution allows the parties to split the cost of performing that work. All of the alternatives require the parties to retain separate counsel to perform duplicative work in an adversarial process. In certain cases, however, one or more of the parties may prefer the inefficiency inherent in the public court system. For example, parties with weak claims or defenses often will exploit the unnecessary costs and delays of the adversary system to induce their opponents to simply give up or settle on terms that otherwise would never be considered. Those parties lose their settlement leverage if the unnecessary costs and delays are eliminated by the more efficient adjudication process.
Likewise, parties with weak legal positions often are able to exploit the unnecessary risks inherent in the public court system because their opponents must settle to avoid the possibility that an untrained jury or incompetent judge will wrongly decide the dispute. Hence, parties that know they have weak legal positions are unlikely to consent to adjudication.
Of course, the parties also have other dispute resolution options available to them. Mediation is an attractive option when both sides are prepared to make substantial compromises to end the dispute. Mediators often are quite effective in facilitating the communication and realistic analysis that is necessary before agitated legal adversaries will make the compromises that are necessary to settle a bitter dispute. However, mediation does little to control the cost and inefficiency of the public court system. Commonly, the parties have already incurred substantial legal costs and delays before they even discuss the possibility of mediation. In fact, it often is the prospect that costs and delays will continue into the future that motivates the parties to consider mediation in the first place.
Mediation in the midst of a public court battle also has some disadvantages. For example, mediation cannot succeed unless all parties are prepared to make substantial compromises, including the party that deserves to win. Mediations are effective methods of settling disputes in large part because the cost and risk of ongoing litigation in the public court system forces all of the parties to compromise the positions they believe to be right.
Of course, nothing prevents the parties in an adjudication proceeding from settling their dispute at any time during the process. They also are free to retain a mediator to facilitate the settlement negotiations if they so desire. However, if those negotiations occur in the context of an adjudication, the party that deserves to win the dispute will not be forced to inappropriately discount its settlement position merely because of the cost and risk of obtaining a just verdict.
Arbitration is another excellent dispute resolution option. However, arbitration is unable to provide most of the benefits the parties obtain in an adjudication. In an arbitration proceeding, the parties retain a private judge (or sometimes three) to decide their dispute after an arbitration hearing. However, the parties also incur the cost of separate counsel to analyze and brief the law, discover the evidence, and present their side of the case at the hearing. Hence, the parties pay the cost of the arbitrators as well as the cost of their own separate counsel.
Many years ago, arbitration dispensed with some of the procedural safeguards of the public court system in an effort to expedite the process and save costs. The parties forfeited their rights to document discovery, pre-trial depositions, dispositive motions, and the rules of evidence in order to facilitate a prompt and final resolution that could not be appealed. In recent years, however, the parties have realized that it is dangerous to give up those safeguards in an adversary process. Pre-trial discovery is essential for the parties to obtain the evidence that is required to effectively present their claims and defenses. Lengthy arbitration proceedings can be shortened only if the claims can be decided in a summary judgment motion. Hence, arbitration has evolved and now looks more and more like a private version of the public court system. Pre-trial discovery often remains very limited, but it is sometimes permitted. Dispositive motions are increasingly common. Many arbitrators attempt to be guided by the rules of evidence even though they are not legally bound to follow them. And occasionally the parties agree to a private appeal process even though the arbitration statutes continue to make an arbitrator’s error in applying the law an invalid basis for appeal in the public appellate courts.
As arbitration proceedings have become more similar to public court litigation, they have become increasingly costly and time-consuming. Moreover, the parties often engage in lengthy court battles over the arbitrability of the dispute before the arbitration proceeding is even permitted to commence. In the final analysis, arbitration suffers from most of the same problems as the public court system because both of those dispute resolution options rely upon hired adversaries to drive the process.
By contrast, adjudication dispenses with the waste and delays inherent in an adversarial system. The parties benefit from fact discovery and witness testimony that is focused exclusively on the issues that are relevant to the adjudicator’s ultimate decision. The adjudicator rules on the admissibility of evidence as it is discovered at the outset of the adjudication. Dispositive motions are unnecessary, because the adjudicator rejects legally defective claims and defenses as soon as those legal defects are uncovered. The absence of attorney maneuvering and posturing allows the adjudicator to focus on the substance of the dispute and expeditiously arrive at a just decision. The parties can choose to make the adjudicator’s decision final or opt for an expedited appeal process to a private panel of appellate specialists.
Clearly, those who have become entangled in the complexity of the traditional court system are looking for sensible alternatives. The adjudication option often provides exactly what is needed. As the benefits of adjudication become more widely known and the concept begins to sweep across the legal landscape, there will be a unique opportunity to promote meaningful change, innovation, and reform in our civil justice system.
Richard Grossman is a trial lawyer with many years of experience litigating and resolving complex business disputes. Formerly the chairman of his prominent San Francisco law firm’s litigation group, he now presides over Intelligent Justice, a non-profit organization that promotes the Comprehensive Adjudication method of resolving difficult legal disputes. IntelligentJustice.org