If Your Client Wants ACTION (and whose doesn't) Try CPR's Model Economical Litigation Agreement
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What is an ELA? An ELA is a hybrid of civil litigation and arbitration, where parties agree to use finite, defined and proportional discovery procedures in lieu of conventional discovery. CPR's new model agreement includes a mandatory pre-litigation dispute resolution section, as well as fee-shifting in discovery disputes decided by an ELA arbitrator. Why should I use an ELA? Companies that use the ELA can significantly reduce the cost of litigation. Also, by shifting disputes out of arbitration -- where there are no appellate rights to litigation -- you allow the common law to keep pace with changing technology. |
CPR's Model Economical Litigation Agreement (ELA)
Comments (5)
Read through and enter the discussion by using the form at the endJoe Markowitz - August 6, 2010 3:24 PM
I support the movement to simplify civil procedure and reduce the amount of strife that now occurs in discovery and motion practice. I did a post a while back on Winslow's idea, which was basically supportive of the concept, but questioned whether lawyers will try to "game" whatever system they come up with. http://www.jcmarkowitz.com/2010/04/economical-litigation.html
But I would be wary of advising a client to waive a jury in advance of a dispute. It's not that we want every case to go to a jury trial, but it seems likely that the right to jury trial is going to give some leverage to at least one side or the other in negotiating a resolution of any dispute. And why would you ever want to surrender that leverage in advance?
Vickie Pynchon - August 6, 2010 3:49 PM
It depends upon how much that leverage costs. When you and I see litigants (as mediators of litigated cases)they've been pretty entirely beaten by the process.
The parties will be told by their attorneys (if not by us) that the litigation has become too expensive and prolonged for them to bear -- something both we and the lawyers could have predicted from the start. The parties will also be told that getting to a jury will likely not vindicate their position, that it's too uncertain to risk.
If these "facts" are all true, it seems to me that a lot of people would be willing to give up the "leverage" that makes litigation too expensive, prolonged, burdensome and uncertain for ordinary mortals (i.e., non-corporate entities) to bear.
Joe Markowitz - August 6, 2010 5:02 PM
From what you're saying, it sounds like the person who is gaining the most leverage from the threat of jury trial could be the mediator! And I would agree with that, because the mediator can use that uncertainty and cost effectively with both sides to persuade them to settle. But from the parties' point of view, I'm not sure there is much of a cost in demanding a jury, and for at least one side, they could be losing a fair amount of ability to get a favorable settlement, by waiving a jury too soon. So if a party has the kind of case that plays better in front of a jury than in front of a judge, the time to waive a jury is when you are signing the settlement agreement, not before.
Vickie Pynchon - August 8, 2010 9:27 AM
I agree that threat is an effective means to get the parties to sit down and negotiate a resolution to their dispute. Here, the threat of a disproportionate litigation response would be used to procure agreement to a limited and proportionate litigation response with a further agreement to mediate.
Here's my personal experience. I have a dispute. I go to a lawyer. I say "I just want to mediate." I can't get voluntary compliance with that request. I file suit. I say again, "I want to mediate." I'm told that I can't get to mediation until the Judge orders it because "that's the way it's done." Both "sides" understand that.
Then what happens? Requests for more time on EVERYTHING beginning with the answer. Delay, continuances, objections, the whole adversarial catastrophe. It takes nearly two years to get to mediation where the matter settles as it could easily have settled if there had been a way to get to mediation before litigation and discovery (which did not, by the way, produce the necessary information - the mediation did).
I'd give up my right to a jury in exchange for $30,000 in attorneys fees any day of the week, especially since the all but certain outcome is to be told by a retired Judge that a jury trial is too uncertain for me to throw another $30K into the sink hole of litigation.
Daniel B. Winslow - August 17, 2010 9:50 AM
Thanks for this great discussion. So few of the costs of business litigation are driven by trial that the ELA makes the jury-waived trial presumptive, but easily changed by agreement of the parties. In developing the ELA, two observations led us to this approach: (1) jury-waived trials are easier to schedule and more certain, which results in less wasted time because of witness schedules and false alarm trial dates, and (2) bench trials can move more quickly with an audience of one. The key consideration, however, is that the ELA is an alternative to arbitration where the choice of jury or jury-waived simply doesn't exist. If more widely used in business contracts, the ELA will allow the civil justice system to get back into the business of commercial dispute resolution. Time will tell if companies incorporate this option in their B2B transactions.