ABC Widgets
Winter 2009 · Volume 15, No. 13

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One-Day Trials For Business Disputes: ADR Might Draw Lessons From History

By Rafael Chodos

When litigants want to avoid the expense and delay of full-bore litigation, they currently have three major types of alternative dispute resolution to consider: arbitration (under CCP Secs. 1280 et seqq.], reference proceedings (under CCP Secs. 638 et seqq.) and mediation (under CCP 1775 and CRC Rules 3.871 et seqq.). But there is another kind of procedure which has been too long forgotten: one-day trials, which involve a deliberate compression of the standard litigation process into a short, fixed span of time.

In order to benefit from this sort of procedure the parties have to prepare carefully and discipline themselves to come to the heart of their case. A one-day trial does not allow for the examination of long series of witnesses: instead testimony has to be presented "virtually" or through some kind of "avatar." For instance, a lawyer might simply stand up and tell the court what each witness is going to say. He might even play the role of the key witnesses and subject himself to cross-examination by the other side. Foundational matters must be handled in advance of the hearing and only where specific facts are really in dispute can time be devoted to conflicting testimony.

One-day trials are not appropriate for all cases, but there is a surprisingly wide range of civil cases to which they are perfectly well suited. In many business disputes the key facts are established through documentary evidence and to a surprising extent, they are not really contested: the contract was signed or it was not; the deed was delivered or it was not; the goods were defective or they were not; the similarity of the infringing work to the copyrighted work can be determined from the works themselves.

In today's courthouse almost no trial lasts less than five days, and the cost of carrying even modest business disputes all the way through trial has escalated to many tens or even to hundreds of thousands of dollars per side. This accounts for the popularity of alternative dispute resolution procedures. But none of the usual procedures is guaranteed to work. Mediation does not work when either one of the litigants is too heavily invested in the dispute-either emotionally or financially- to move past it. This tends to happen in business cases where the lawsuit arises out of a long-standing relationship between the parties. In such cases, the financial aspects of the dispute may not be the most important ones: issues of betrayal, or even of healthy separation from former friends and trusted partners, drive the litigation. The only way to reach a satisfactory resolution of such cases is by taking the time to arrive at a just result. As for arbitration and reference proceedings, they can be just as expensive as courthouse trials and they are less predictable.

One-day trials can be held on a binding or non-binding basis, and the brevity of the procedure ensures that the cost is low. The procedure can be conveniently applied to just part of a dispute: to damages, for instance, even before liability has been determined, or to status (e.g. partnership or no, agency or no) before dealing with liability or damages. And because the procedure happens quickly, it can be invoked at any point along the litigation timeline: before the case is filed, just after filing, after completing some of the discovery, or just before trial.

It is surprising that this approach is not widely used. We professional lawyers are trained to believe that the full-blown modern court trial, with all its pretrial proceedings, its effectively unlimited discovery, and its appellate safeguards, represents the highest-quality dispute resolution process imaginable. It may be so--or it may not be. After all, throughout history, and in many parts of the world, trials were and still are short. Very long trials may have arisen relatively recently, in the post-industrial age. The most famous trials of antiquity were amazingly short: Daniel appears to have handled the case of Susanna and the Elders in a couple of hours; King Solomon's famous judgment was delivered in a short sitting; and as far as we know, legal procedure in ancient Greece and Rome called for one-day trials in most matters.

No one is suggesting that we start limiting the length of courthouse trials to one day. But one-day trials can be an excellent form of alternative dispute resolution. When done on a non-binding basis, they are suited to cases where mediation is not likely to succeed. And after all, if one were planning to play a violin recital in Carnegie Hall he would want to rehearse the performance ahead of time. A one-day trial is at least a rehearsal: it is a way to "hear the music" in advance of the trial/performance.

We might learn a lesson from the history of Japanese sumo. There is a phase of the match before the wrestlers make physical contact, when they just watch each other from a distance, sizing each other up, summoning up their energies and waiting for the right moment to lunge. This is called the "shikiri" and it used to last a long time: legends tell of sumo matches between masters that would last for days. In 1928, for the first time in the 1200-year-long history of the sport, time limits were set to the shikiri and those limits were gradually reduced as sumo matches came to be broadcast on television. When the new rules were first introduced there was resistance: the indeterminately long encounter between the contestants, and the exquisitely refined ebb and flow of their vital energies, was seen as the very essence of the sport; to put a time limit on it would change everything. But now, everyone believes that part of the wrestler's skill is the ability to size up his opponent and summon his energies quickly. This is a skill we western lawyers need as well!

Rafael Chodos
Attorney at Law
March 2, 2009

RAFAEL CHODOS is a litigation attorney who has been practicing in Los Angeles for over 30 years. He is the author of The Law of Fiduciary Duties (Blackthorne Legal Press, 2000), and has recently launched a new service, RentAJudge.com, featuring one-day trials.

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