TPKATVT is back. It actually hadn’t gone away, though I hadn’t seen signs of it for a while. TPKATVT, aka The Phenomenon Known as the Vanishing Trial, got started by a 2004 report written by Professor Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts. Each year … Continue reading TPKATVT
The presidential election campaign this year has provided several teachable moments for law students and lawyers and this post focuses on one of them. Unless you have been hibernating for the past few weeks, you know that a number of women have accused Republican candidate Donald J. Trump of sexual misconduct. Mr. Trump and his … Continue reading Why Don’t People Complain? Implications for Defense Counsel. And Some Practical Ethics Hypos for Students.
You may be familiar with the Randall Kiser et al. study, Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations, 5 Journal of Empirical Legal Studies 551 (2008), which replicated amazing findings in prior studies by Samuel Gross and Kent Syverud, and Jeffrey Rachlinski. The top line finding in … Continue reading Bad Decisions to Go to Trial
My colleague, S.I. Strong, recently circulated on the DRLE listserv a link to a survey conducted in 2015 for the National Center for State Courts. The survey involved a nationwide random sample of 1000 members of the public (actually registered voters). This is a very respectable sample, especially considering that the reported findings are very … Continue reading Compared to What?
Alert readers of this blog will recall that amendments of the Federal Rules of Civil Procedure went into effect on Dec. 1, 2015, including a new requirement that discovery be “proportional to the needs of the case.” The Institute for the Advancement of the American Legal System (IAALS) thinks that’s a good thing. Critics, like … Continue reading Is Proportionality of Discovery Good or Bad?
I recently posted an item citing the IAALS’s work touting the benefits of the new amendments to the Federal Rules of Civil Procedure. For a counterpoint, here’s a draft article by SMU Professor Elizabeth G. Thornburg, Cognitive Bias, the ‘Band of Experts,’ and the Anti-Litigation Narrative. Here’s the abstract: In December of 2015, yet another … Continue reading Another View of the New FRCP Rules
On December 1, amendments to the Federal Rules of Civil Procedure will take effect which are intended to change the culture of litigation. According to a post on the Institute for the Advancement of the American Legal System (IAALS) blog, the new rules affect “judicial case management, disclosure, use of experts, and education for judges.” … Continue reading FRCP Amendments Intended to Change Culture of Litigation
As you may know, the Institute for the Advancement of the American Legal System (IAALS), is a “national, independent research center dedicated to facilitating continuous improvement and advancing excellence in the American legal system.” It is an impressive, high-powered organization based in the University of Denver. It has four major initiatives: (1) Quality Judges (promoting … Continue reading PEDR is Important for Culture Change in Courts
Recently, I was asked to write a post for a state bar association blog with highlights from my article, My Last Lecture: More Unsolicited Advice for Future and Current Lawyers. Then I thought, heck, I should post it here too. Understand Your Clients’ Interests. Lawyers often assume that they know what their clients want–to get … Continue reading Tips for Lawyers Who Want to Get Good Results for Clients and Make Money
This post stimulated a conversation with Peter Benner about planned early dispute resolution (PEDR), beginning with the exchange of comments below. There are six additional posts in this conversation. At the end of each post, there is a link to the next post in the conversation. _______________________________________________________________ Early mediation is a waste of time. This … Continue reading Planning is Critically Important for Early Dispute Resolution
You are cordially invited to this program at the ABA conference in Seattle, which will take place on Friday, April 17, from 3-4:15, in the Orcas Room. My partners in crime for this caper are Alyson Carrel, Jim Coben, and Noam Ebner. Here’s the idea for our program – How many times have you heard … Continue reading Everything You Know about Dispute Resolution is Wrong – Can You Handle the Truth?
Does ADR include trials? I know, I know. This sounds like another one of my dumb questions. Although I have a pretty broad conception of DR, my initial reaction was that trial is one of the few procedures I would exclude from DR. As described below, on reflection, I probably would include trials. More importantly, … Continue reading What is (A)DR About?