This week’s Connecticut Law Tribune features an interview with F. Lee Bailey, who, at 77, remains sharp as a tack. The interview saddened me, in a necessary sort of way. Bailey’s now pressing the case for the merits of alternative dispute resolution. Trial is too costly for most Americans, he says. And besides, the trial process often gets it wrong. Daggers to my heart, these words. Trial is the best thing about the practice of law To see one of its great practitioners so clearly call out its shortcomings chills.
Bailey is no longer able to practice law. He’s been disbarred in Florida and Massachusetts as a result of a claim he turned client funds to his own personal account, a claim that turns on the sort of contested credibility issues that jury trials are best at decoding. Yet when it comes to deciding such things as whether an attorney should retain his license to practice law, we don’t trust juries to get the job done. Instead, we trust the so-called experts, namely, judges. It is a rare case in which I would trust the sensibilities of a judge more than the ordinary wisdom of jurors. Deciding whether an aggressive, and often controversial, lawyer should remain at the bar is not a decision I would trust to a judge, ever.
The cynic in me wanted to say that Bailey has gravitated to alternate dispute resolution because the doors to the forum have been slammed, unjustly in my view, in his face. But he speaks the truth about the costs and inefficiencies of the civil trial process.
"A jury trial is a very clumsy piece of machinery to settle a dispute, and terribly expensive," Bailey notes. "Usually by the time the remedy becomes final, the plaintiff doesn’t need the money anymore, or is bankrupt.... [The costs] are out of range for most of the population. The tragedy is that people get talked into starting lawsuits, all enthusiastic, full or emotion, and really wanting to make the other guy suffer. And 25 percent of the way into the lawsuit, they learn they can’t afford to go any further."
There is bitter truth in these words, especially under the current trends in regulation of lawyers’ fees. Enhanced communication requirements, involving not just the obvious question of when and whether to settle a case, but now, increasingly, requiring consultation about tactics involved, threatens to turn simple retainer agreements into suicide financial pacts. Gone are the days when the lawyer could serve as captain of the ship; we’re all good democrats now – are lawyers free to charge for the time it takes to teach a client navigational skills?
Silently, and by degree, the bar, aided by a judiciary increasingly inclined to want to take control of litigation by means of judicial management, is driving the cost of litigation through the roof. If trial in vanishing, part of the reason is the increased costs associated with lawyer’s complying with new informed consent rules, and judges who think that litigation can and should be managed from the sterile safety of a juryless chambers. (Case in point: I recently spent hours attempting to comply with a sua sponte decision by a federal judge to revise a complaint to comply with Iqbal’s new enhanced pleading requirements. During the almost two years the case has been pending, defense counsel has had not difficulty deciphering the pleadings. But his honor needs help. Query: Who pays for this judicial pampering?)
So Bailey is right, much though I hate to admit it. Trial is too expensive, except in "the most serious cases." If ordinary folks are to get justice, they need a forum they can afford. Bailey has started an alternate dispute resolution practice in his new home, Yarmouth, Maine, called Quickset. "[T]he little guy, the subcontractor who gets into a fight with a contractor while they’re rehabbing some old house, ... These types of disputes could be settled very quickly and decisively if people would just sign up ... We’ll get the case done in 30 days."
I hear him, and yet I recoil. It is difficult to see this lion of the bar relegated to the sidelines. I know he still packs a punch, and has plenty to teach lawyers about what goes on in a courtroom. I recently had the privilege of reading a draft of the first chapter of his book on cross-examination. It is liquid gold, I tell you. He remains a master of his craft. Odds are if jurors could have decided whether he should have retained his license, he’d still be slugging it out in courtrooms, rather than talking alternate dispute resolution. But I may be wrong. It may be that ADR is the future and I am fighting simply because I have spent decades learning the skills necessary to master what goes in a courtroom. Perhaps Bailey, the older man, is the visionary, and I, the younger upstart, am now the dinosaur.
But don’t take my word for any of this. Come hear Bailey this week at the Quinnipiac Club in New Haven. He will be speaking at this month’s meeting of the Connecticut Bar Association’s Litigation Section on Wednesday, March 23 at 6:30 p.m.. There are still seats available at the cost of a good meal. Call the bar association at 860.223.4400 to make your reservation.