eDiscovery Daily Blog
Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Two
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast). Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Tom’s overview is split into four parts, so we’ll cover each part separately. Part one was published yesterday. Here’s the second part.
Modern Litigation History
First, let’s consider the rise in class action and MDL litigation. In 1962, U.S. Supreme Court Chief Justice Earl Warren appointed a special committee to improve the efficiency of the legal system. Alfred P. Murrah, CJ of the 10th Circuit, was named chairman and his committee members came up with then revolutionary solutions that are still used today, ideas such as combining depositions and discovery and combining lawsuits involving similar complicated claims into a single case.
By 1967, backlogs in the Federal court system had been cleared and the committee discovered large numbers of similar, complex cases were common across the U.S. court system. They recommended that a permanent panel be set up to handle these types of matters and Congress created the JPML in 1968.
Now, by some estimates, as many as one in every seven civil lawsuits filed in federal court are or will become part of a multi district litigation and these cases involve as many as 60% of all plaintiffs in Federal civil suits. Since a high number of these cases settle, the number of trial associated with these litigants is also dramatically lessened.
Second, since the 1986 U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment, the increase in summary judgement motions has increased and seems clearly linked to the decrease in the number of trials.
Third, let’s consider that a high number of cases are now resolved by nonjudicial means, through alternative dispute resolution (ADR) methods such as compulsory mediation or arbitration clauses in contracts.
Fourth, changes in the FRCP which emphasize docket management have led many judges to become more active in management of the case before them. FRCP 16 in particular was amended to require judges to monitor closely the management of cases (The Proposed FRCP Amendments Intended to Foster “Judicial Management”) and these changes have helped push early case resolution.
Finally, of course, the overall cost of litigation has risen dramatically. Bluntly put, the cost of making a wrong decision on whether to litigate wrong is getting more expensive. A seminal study of both federal and state court data in 2004 by DecisionSet found that making a wrong decision on litigating can cost a plaintiff about $43,000 and for defendants, who were less often wrong about going to trial, the cost could easily exceed $1 million.
We’ll publish Part 3 – eDiscovery Considerations – on Thursday.
So, what do you think? Does your firm have a formal process for deciding whether to litigate or settle a case? As always, please share any comments you might have or if you’d like to know more about a particular topic.
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