Where Have You Gone, Perry?
Tuesday, August 23, 2011
by: Don R. McGuire, Jr., RPh, JD, Pharmacists Mutual Companies

Section: Rx and The Law

Do you remember Perry Mason? How about Matlock? OK then, Denny Crane? Depending on your age, you should be familiar with at least one of these famous TV attorneys and their courtroom performances. This makes for entertaining TV, but in real life, the story is a little bit different. In most jurisdictions, the number of civil cases filed has been steady or increasing, but the number of trials has been decreasing. Why is this so?

The first reason is the discovery process. Discovery is the phase of the litigation process where the opponents share or exchange information and evidence. This includes documents, oral testimony (depositions), and written questions and answers (interrogatories). This exchange is mandated by court rules. When discovery is complete, both parties should have all of the information they need to evaluate the case and their chances of prevailing at trial. This typically makes at least one party reluctant to take the case to trial because they know what their chances are. No more surprise piece of evidence or last minute surprise witness. These Perry Mason staples are virtually unheard of today. There are still some surprises at trial, but they tend to be smaller issues rather than earth-shattering ones.

The second reason is alternative dispute resolution (ADR). This ADR is different from the acronym that pharmacists are familiar with. ADR in the legal sense is a process of resolving cases without a trial. The most common forms are arbitration and mediation. In arbitration, the issues are presented to a neutral arbitrator who issues a ruling on the case. The process is greatly streamlined from that of a trial. For instance, in most cases, arbitration will not have live witness testimony. It is quicker and less expensive than a trial. The ruling can be binding or non-binding. In the non-binding situation, the parties can evaluate the ruling and compare it to their own predictions, but are not forced to accept it. Binding arbitration is considered a final ruling.

Mediation has no third party decision maker. A neutral mediator works to get both sides to agree to a mutually acceptable settlement of the case. The mediator does that by moving between the parties, sharing information where necessary, and listening to the strengths and weaknesses of each side. If no agreement is reached, the parties move on in the litigation process. Nothing that is said or offered at a mediation is admissible at trial, so parties are motivated to be as open and honest as possible with the mediator. In many jurisdictions, at least one round of ADR is required before any case can go to trial. It is not uncommon for a judge to order the parties to a second, or even a third, mediation.

In today’s legal environment, the possibility, or desirability, of trial is quite different from TV lawyers. They try a case almost every week. Non-TV lawyers might have as few as two or three civil trials per year. Some commentators have actually expressed concern that we don’t have enough trials. Case law is built on appellate decisions, and with fewer trials, there are fewer appeals. But with all of our cards on the table and court rules that favor ADR, we shouldn’t be surprised that there are more settlements and fewer trials. Maybe that is a good thing, because it puts the parties in control of the ultimate resolution of their case and reduces the emotional toll on the parties. It won’t be as entertaining to watch Matlock take more depositions.

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