A Day in Court
I was in court recently supporting a friend whose family member is involved in litigation over a serious civil matter. The matter has been ongoing for a long time. At the end of the trial, in a few weeks or months, the judge will have to decide what happens next in their lives. His judgment will depend upon his interpretation of the applicable law and the conclusions he draws from the evidence provided by the witnesses. Of course, ten years later it was obviously difficult for some of the witnesses to recall precisely what happened and when it happened. Finally, when the final witnesses have been heard and the lawyers have made their final arguments, then the judge will put pen to paper and render his verdict. It is unlikely that both parties will be satisfied with the judge's decision and perhaps neither will. Til then, and perhaps til after the appeal periods have lapsed, their lives hang in the balance.


Sitting as an observer provides a vantage point different than counsel chair and it proved interesting. Aside from worrying about the process for my friend's sake (and noticing how really tedious court can be at times), it provided an opportunity to think broadly about the process as it was unfolding. A traditional day in court can be prohibitively expensive, as evidenced by the alarming number of self-representing/pro se litigants, and the process is certainly not one designed for a speedy outcome. I couldn't help thinking that there are better ways to solve disputes. But people want their "day in court."

I am not convinced that the desire for a day in court necessarily (or usually?) means a civil trial and all that that entails. What people often really want is a chance to tell their story: to have someone listen to them, to feel respected and heard. Environmental psychology explains why this is important to people. Procedural justice research confirms that this is true. Procedural justice is just as important to a litigant's satisfaction with the outcome and sometimes even more so than the substantive result. This is what they expect from court.

If the parties choose to litigate, however, the process may not be as satisfying as expected. The pleadings their lawyers will file will probably look a bit different from the way they would like to tell their story. It will be "translated" into legal terms and will be constrained by drafting custom and requirements. And when they do finally make it up to the witness stand, their story will be constrained by what is relevant and admissible; they may even be interrupted a few times for objections on a point of law. And, of course there will be cross examination where someone will try to poke holes in their story once they have finished it.

The ongoing debate over the use of "alternative" in ADR is curious in some ways. Some feel it diminishes the practice and that its time to remove the "alternative" from ADR. But, sitting there observing a few weeks ago, I was thinking that a better "alternative" to the civil trial process is really not a bad thing or the pejorative some assume it to be. A process such as mediation, which provides the opportunity to tell one's story and have some say in the outcome, may be more like what people expect. Maybe it is a better alternative to a "day in court."

References and further reading:

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4024...

http://law.marquette.edu/courtadr/wp-content/uploads/2011/08/A-Medi...
Posted by Karen at 03:15 No comments:
Email This
BlogThis!
Share to Twitter
Share to Facebook
Share to Pinterest

From the archives at http://therpmproject.blogspot.ca