Legal Ethics and Reform

Can a settlement between Contending Parties always be Called “Just”?

(Note: A random remark from a friend that “a settlement of a dispute is always a just result” caused a lengthy consideration by the author.).

In America, there are several kinds contentious situations. They tend to fall into three types. These include those seeking justice in civil cases (e.g. divorce, torts, breaches of contracts, etc.), criminal cases (e.g. murder, stealing, DWI, parking tickets, etc.) and administrative actions (e.g. revocation of a permit, refusal to grant a permit, improper use of one’s personal or real property, rules violations, etc.)

In considering whether or not justice is achieve through a settlement between contenting parties, it is certain that justice can only be achieved by a settlement in a world where both parties are possessed of the resources needed to actually go to a trial or hearing (with lawyers, investigators, expert witnesses, etc.) if needed.

However, in reality, rich people and the state have a distinct advantage in any settlement negotiation because they know the opposing party generally lacks the ability to properly conduct a trial or hearing.

So are settlements common in America’s legal system? Yes, very common, over 80% of civil cases are settled, over 90% of criminal cases are settled, etc. Administrative actions against citizens are conducted by so many agencies at so many levels of government that it is impossible to get an accurate percentage but a percentage in the high 90's is probable, perhaps 98%. So it is accurate to say that the vast majority of all disputes are settled.

But the question here is broader, is justice achieved by all these settlements? The answer is mostly no. In criminal cases, where the government provides defendants with lawyers, the state is allowed to pursue one charge if the defendant opts for trial while pursuing a lesser charge if the defendant pleads guilty so no trial is needed. The same option is available to administrative agencies to request greater or lesser damages depending upon whether an administrative hearing is requested.

With civil cases the cost of lawyers for the two parties is generally the factor that forces the parties to settle. Usually one party is better resource’ d (or is blessed with a lawyer cousin who is willing to help pro bono).

Contingency fee lawyers are usually the strongest advocates for settlements. Over two thirds of a lawyer’s time on a case is consumed preparing for and conducting a trial. If a lawyer can get a settlement for half the “just” amount in a case and only has to put in 1/3d the projected time, he’d be fool not to take the deal. Of course, his client is getting perhaps 2/3 of one half of the just amount.

Regardless of compensation arrangement, Plaintiff’s lawyers are quick to argue that going to trial is dangerous and results are never certain even with solid facts. This is true. There are several factors that cause odd, even outlandish, results. These include: 1) inexperienced jurors who are easily mislead by lying witnesses or lawyer showmanship, 2) massive time delays in the courthouses getting civil trials heard which distort witness recollections, 3) unwillingness of prosecutors to bring charges against liars, who get caught lying, at civil trials, and 4) resistence of the parties to full cooperation with discovery requests.

In sum, it is sad that most dispute settlements in the US actually lead to unjust results.

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