"Litigotiation" - An oldie but goodie for effective litigators to consider

By Richard L. Hurford

During the past month I have had the good fortune to present to and learn from judges during a seminar hosted by the Michigan Judicial Institute on “evidence based practices” being pursued in the trial courts of the state. 
I also recently participated in a panel discussion with excellent business litigators during an ICLE webinar program that provided insightful practice pointers for those who litigate in the Michigan Business Courts.

These presentations underscored how an old idea coined approximately 30 years ago by Mark Galanter is still a goodie and gaining greater currency in the courts – “litigotiation.”  With the evolution of judicial case management practices (i.e., “evidence based practices”) in state and federal courts, litigators would be well served to recognize this evolution and adapt accordingly. 

As discussed during the recent Michigan Judicial Institute program, the Michigan Supreme Court Administrative Office (SCAO) has highly encouraged the use of evidence based practices by the courts to assist litigants in resolving their dispute at the earliest possible phase in the litigation.  SCAO has summarized the evolving nature of this role as the difference between a traditional “trial judge” and that of the “trial judge and dispute resolution advisor.” 

See Hon. John C. Foster, Richard L. Hurford, Douglas L. Toering, A Modest Proposal for the Strategic Resolution of Business Disputes, 35 Mich. Bus. Law J. 3 (Fall 2015).

This evolving role of the trial judge and dispute resolution advisor ties in quite effectively with the concept of “litigotiation.”  Professor Mark Galanter described this concept as:

On the contemporary American legal scene the negotiation of disputes is not an alternative to litigation, it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals that we might call LITIGOTIATION; that is, the strategic pursuit of a settlement through mobilizing the court process.”

https://media.law.wisc.edu/m/fwfmm/gargoyle_14_1_1.pdf

In sum, litigation now involves being aware of and strategically harnessing newly evolving judicial case management processes to augment dispute resolution negotiations and vice versa.  Early evaluation and assessment of the dispute, an early exploration of the client’s BATNA (best alternative to a negotiated agreement), and the early formulation of integrated litigation and negotiation strategies to achieve the client’s BATNA are now more important than ever before (with no end of this trend in sight). 

Whether in Michigan state trial courts (particularly the business courts) or federal courts, judicial case management practices increasingly emphasize:

• Early judicial involvement and the formulation of a differentiated case management order established during a meeting with lead counsel;

• The appointment of a mutually agreed upon neutral at the early case management conference;

• The early mandatory exchange of information either before or immediately after the early case management meeting;

• After consultation with counsel, the development of staged/proportionate discovery strategies that supports an early and meaningful ADR event;

• A growing reluctance to require traditional case evaluation pursuant to MCR 2.403 as the first and only ADR strategy for the case; and

• The exploration of a broader array of ADR processes other than just mediation and case evaluation.

In the not too distant future long gone will be the days:  a party will be afforded the opportunity to complete all discovery necessary to prepare for a trial; then engage in case evaluation as the first ADR strategy for the dispute; if, as is typical, the case evaluation fails to resolve the dispute the court might order the parties to late stage mediation; and, if late stage mediation is unsuccessful in resolving the dispute the court will meet with the parties during a settlement conference that immediately precedes the trial.  In the new “litigotiation” world, the court if it adopts the trial court and dispute resolution advisor model, at the time of the case management conference counsel will be required:  to identify a mutually acceptable neutral; consider what ADR process(es) might be most appropriate to the potential resolution of a dispute at the earliest practicable date; and, focusing on that discovery (staged/proportionate discovery) that is required to have a meaningful ADR event. 

SCAO recently offered training to all Michigan trial court judges on a publication entitled Michigan Judges Guide to ADR Practice and Procedure.  See http://courts.mi.gov/Administration/SCAO/ OfficesPrograms/ODR/Documents/ADR% 20Guide%2004092015.pdf.  That Guide, which outlines over 20 ADR processes that can be used to resolve or narrow the issues in a dispute, is truly a must read for all litigators.  See also adrprocesses.com (a web based summary of the Guide posted on line by SCAO).  The Guide generally describes for the judiciary the various processes and provides an overview of the indications and contraindications for each.  Certainly if the courts have information as to when Early Neutral Fact Finding, an Early Neutral Evaluation or an Expert Hearing might be advisable to either streamline or narrow the issues in dispute at the earliest practicable date in the litigation, counsel should be knowledgeable and prepared to address these issues in an early meeting with the court.  If one or more of these processes are either advisable or inadvisable to further the best interests of the client, counsel should develop the appropriate rationale to respond to the court’s suggestions and potentially be prepared to suggest other processes that may be more effective in achieving the client’s BATNA.  If opposing counsel cannot agree on the best processes to employ, and when those processes will have the best potential for success, effectively advocating the preferred position to the judge will be an important skill set.   

The concept of staged/proportionate discovery in the federal and state courts is predicated upon the premise that the information and discovery necessary to prepare for a meaningful ADR event is only a subset of all the information and discovery necessary to prepare for a trial.  Thus, one more evidence based practice being pursued by a growing number of judges, to achieve a speedy, just and efficient dispute resolution, is to focus the initial discovery to that which is necessary to conduct a meaningful ADR event.  If the ADR event (mediation or otherwise) is unsuccessful in resolving the entire dispute, then the parties will be permitted to pursue that additional discovery that may be necessary to prepare for a trial.  Of course the recently amended Federal Rules will have a significant impact on the additional discovery the parties will be permitted to pursue given such factors as the nature of the case, the importance of the issues to be litigated, and the amount in controversy.  See, e.g., http://www.jonesday.com/significant-changes-to-the-federal-rules-of-civil-procedure-expected-to-take-effect-december-1-12015-practical-implications-and-what-litigators-need-to-know-09-25-2015/.  Determining that initial discovery (as well as restricting the initial discovery of the opposing party to appropriate parameters) is a strategy that now must be considered at the outset of the case.  If, for example, the litigator believes the necessary e-discovery to pave the way to a meaningful mediation will involve 45 search terms, and opposing counsel suggests 20 search terms is all that is appropriate, counsel should prepare to address that dispute or develop a strategy to resolve that dispute that is most advantageous to the client.

Moreover, if the parties are aware the trial judge will require the mandatory early exchange of information, the early appointment of a mutually satisfactory neutral, and require engaging in an early ADR process, the feasibility of pursuing pre-litigation mediation may take on potentially new significance and efficacy.  Even if the parties are unable to agree to a resolution of the entire dispute, there are other significant advantages and potential opportunities that commend the consideration of such a process.  If the pre-suit mediation results in an impasse or only effects a narrowing of the issues in dispute, counsel for the parties may still consider utilizing the services of the neutral to assist in negotiating an agreement on such issues as:

a. The terms of any necessary protective order that might be presented to the court at the time of the early case management conference;

b. The terms of a “standstill” agreement, if appropriate that will be presented to the court for entry;

c. That initial discovery, including any mutually agreed upon limitations, that might be provided to the court at the time the case management conference is held; and,

d. The timing and type of ADR strategies that will be pursued once the litigation commences.

Current and evolving judicial attitudes and practices will require new and different approaches by litigators.  It may be time to consider those practices required in the strategic pursuit of “litigotiation.”

Richard Hurford is the President of Richard Hurford Dispute Resolution Services, P.C.  He is the past chair of the ADR Section of the Michigan State Bar, and the current chair of the Macomb and Oakland County ADR Committees, Co-Chair of the ADR Section of the Federal Bar Association, and immediate past President of the Southeast Chapter of ACR.   He is the co-author of the nationally recognized A Taxonomy of ADR (2015) and a contributor to the Supreme Court Administrative Office’s publication the Michigan Judges Guide to ADR Practice and Procedure (2015).

He is a professional with Professional Resolution Experts of Michigan (PREMi), a Distinguished Fellow in the International Academy of Mediators, and a member of AAJ, DRI, MDTC and ACR.  Richard’s web site can be accessed at hurfordresolution.com.