Alternative Dispute Resolution


President’s Message


Robert J. Zarbin L


eaves are changing hue, reminding us that seasons come and seasons go. Seems like just last week we were digging out from record snowfall, and just


yesterday that we were sweltering though the hottest summer on record. Now it’s fall and soon it will be winter, then spring. A cycle that repeats itself, whether or not we stop to notice. In much the same way, the judicial system is a cycle that


repeats itself. Reads, you might say, like the instructions on a shampoo bottle – file suit, conduct discovery, pretrial, trial – repeat. Every now and then I hope, you will stop, as you might when the leaves turn, to appreciate what you’re doing and why. By reading this article, by the way, you get one introspection


credit. Let’s take the “why" first. Te MAJ is dedicated to


preserving and protecting the civil justice system. Anyone who has tried a jury trial knows that it is the best system ever invented to get to right answer, the truth. G.K. Chesterton said it best: “Whenever our civilization wants a library to be catalogued, or a solar system to be discovered, or any other trifle of this kind, it uses its specialists. But when it wishes anything done which is really serious, it collects twelve ordinary men [and women] standing around. Jesus did exactly this." You, we, are trustees of this system. When you play fair.


Conduct “civil” litigation in a “civil” manner, you are helping to preserve our system of justice. Bear in mind that, every day, half the people who leave a courtroom are not happy with the result. While they are free to carp about how the jury got it wrong, it is vital that believe that they lost fair and square – that their voice was not only heard, but it was listened to, albeit unpersuasively. So what can you to help preserve the system? Two things


come to mind, at least for this issue of Trial Reporter: First, bear in mind that it is a “civil” justice system. Treat


others with the respect that you expect. Tere are lawyers out there – whose names we all keep on our “short list” – who tout their willingness, no matter how they have to do it. Tese folks have a one-size-fits-all motion for sanctions, which they can’t wait to file. Before you get on anyone’s short list, bear in mind that the difference between a lawyer you have mistreated and an elephant is that there are some things an elephant might forget. We are all, as human beings, fallible. When it’s your


turn to drop the ball, count on them pouncing. Bear in mind also, when you win ugly, you’re making an enemy, a defense lawyer, who gets paid by the hour to make your life miserable, while the more time you spend answering endless motion, the less time you spend actually making money. Second, we practice in an adversarial system, but it bears


the name “civil” justice for a reason. Our opponents, and their clients, are our adversaries, not our enemies. We are charged with zealously representing our clients’ interests, but this is not a charge to wage jihad against the other side. Every day, half the people who leave courtrooms are unhappy with the outcome. Tis is to be expected; nobody likes to lose. But it is vital that they leave the process, believing that had their say, and that they were treated with respect – no matter where they were from; no matter how much money they made; no matter how far they went in school. We, as members of the Bar, owe everyone we come into contact with, pro or con, respect for their dignity as a person – even though we secretly think they might be an embellisher of the truth. Turning to the "what" – What you are doing? Consider


the topic of this season’s Trial Reporter: ADR – Alternative Dispute Resolution. We all love the drama of the courtroom, but as state budgets shrink and expert witness costs rise, getting into a courtroom is becoming increasingly costly – in both time invested and money spent. Ten there are scheduling orders and administrative judges who never met a postponement request they liked. For the right cases, ADR offers powerful tools to resolve


cases. At a non-binding mediation, the parties sit down and do their best to get a case settled. Note the fact that both sides are willing to go to the trouble and expense is a sign they hope a settlement can be achieved. And even for those cases that seemingly “must be tried,” every lawyer has stories about cases he or she swore would never settle – but did.


Trial Reporter / Fall 2010 3


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60