Killing The Billable: Balancing Accuracy Against Efficiency In Dispute Resolution
In the world of dispute resolution, the twin concepts of accuracy and efficiency remain in tenuous counterbalance. Certain methods of resolving disputes are highly accurate, while others are highly efficicent. Generally, the more efficient a dispute resolution process, the less accurate the result and the more accurate the result, the less efficient the process.
Before I go further, it helps to define “accuracy” and “efficiency” as independent concepts in the dispute resolution context. The most accurate result would be the one achieved by an arbiter with knowledge of the essential truth of the dispute, i.e. if the judge or arbitrator knew all the facts in their truest form prior to making a decision (the nature of essential truth is a deep philosophical question for another time). The application of the proper laws and regulations and the appropriateness of the punishment also play a role in the accuracy of a judgment. The more efficient a dispute resolution process, the less resources (time, manpower, money) are consumed in reaching a decision.
The U.S. justice system is currently skewed in terms of accuracy. This focus on accuracy over efficiency often leaves hundreds of thousands of low-income clients without the ability to afford even basic legal services. For instance, civil court procedure encourages parties to “discover” all the information underlying a dispute through the use of written questions (interrogatories), interviews of important parties (depositions) and formal written requests for documents and related evidence.
Lawyers from both sides spend months drafting series of such requests, often poring over minor details such as grammar, language and syntax. When a request for evidence is received by the opposing party, they can object to the request (and often do). The party that originally propounded the request can then respond to the objections etc. As you can tell, this is a cumbersome and time-consuming process which uncovers a number of pertinent facts over a long period of time (accurate, yet inefficient). Sadly, but quite frequently, lawyers exacerbate this problem by using discovery as a strategy to delay the case or propound unnecessarily complex questions to make it expensive for the opposing side to respond.
Unlike our current, discovery-laden civil justice system, a traditional dispute that isn’t subject to litigation also isn’t subject to these burdens. There, the kernel of facts that generates the dispute fades into memory very quickly. Companies move on and regain the profits they have lost and tempers cool. Think of a recent dispute you had with a friend or colleague. Perhaps you can remember the details. Now try to remember a dispute you had exactly one year ago. Remember the details? Likely, they have faded into the mists of time.
However, litigation procedures in the United States, with their emphasis on accurate discovery of all pertinent facts tend to keep old disputes in sharp focus. It is a fact that the majority of civil disputes in U.S. courts do not require traditional, attenuated discovery procedures. Assuming all parties approach the bargaining table in good faith, mediation and arbitration (less accurate but considerably more efficient dispute resolution methods) produce a greater return on investment of time and money.
Some efforts to reform the justice system in favor of efficiency have been made. For instance, practitioners in several specialized fields such as family law, immigration and intellectual property have realized the value of specialized venues to decide the large number of complex yet routine cases which clog the U.S. court docket. Family law courts throughout the U.S. often have their own set of civil procedures that fast-track a case through the court system in order to lower the impact of the dispute on the family and children.
The Los Angeles Superior Court, one of the largest court systems in the country, has led the charge to adopt mediation as a mandatory, pre-litigation practice. Disputants in LA Superior Court almost always face court-ordered mediation prior to trial.
So what is stopping judges, lawyers and their clients from adopting more efficient dispute resolution methods? My guess is money. Discovery generates the majority of billings for lawyers since it takes a considerable number of hours to draft pages of interrogatories and prepare witnesses to give and defend depositions etc. Only trial has the potential to be more expensive. Therefore, lawyers routinely make the majority of their money conducting drawn-out discovery or trial. Generally, it is not in their interest to reform the system to allow a dispute to be resolved through mediation or arbitration in a quarter of the time it takes litigation to takes its course. The root of the problem, therefore, is the billable hour and the way lawyers make money.
Until the billable hour fee structure is revised to incentivize accurate work as efficiently as possible rather than accurate work as throughly as possible, lawyers will continue to be expensive, the justice system will continue to be overburdened and those who need legal care the most will find it hard to obtain competent legal representation at a fair price.
