Try a Trial

Business litigation has become overly dependent upon pretrial motions and mediation practice. Let’s set aside, just for a moment, the fact that motions practice and mediation practice offer substantial revenue opportunities for attorneys. Are these aspects of business litigation worth it? The answer is sometimes (again focusing on the clients and not fee generation). Many, but not all, business litigation matters involve issues that can be won, lost or effectively narrowed on the basis of pre-trial motions. Many, but not all, business litigation matters can be efficiently resolved through mediation. Significantly, and focusing on the “not all” aspect of this conversation, there are cases in which it is evident that pre-trial motions practice is extremely unlikely to result in a final disposition or a narrowing of the issues that justifies the corresponding cost and delay involved in the practice itself. Likewise, there are cases whose facts or litigation posture are such that a mediation is little more than wishful thinking, again not justifying the cost and potential delay that is attendant to the mediation itself. Often, the most efficient way to dispose of a business litigation is the old-fashioned way — call it for trial. The majority of the cases called will be settled prior to or at a final pre-trial conference. The rest can be tried. Moreover, mediation can occur after trial, with the litigants having a much clearer understanding of their respective exposure. This approach does not work for every case, but neither does the approach that assumes there will be dispositive motions practice and a protracted mediation practice in every case.