64 Pages Posted: 22 Feb 2014
Date Written: 2014
This article reports on two empirical studies of civil litigation and settlement in the Circuit Courts of Hawaii in 1996 and 2007 and compares the findings of those studies with data about the case filings and trial rates in Hawaii and the federal courts over the past 50 years. The data comes from docket sheets of 4,000 cases, surveys of 500 lawyers, and court annual reports. Information is presented about the docket, the types of cases, the pattern of filings, the number of trials, the types of pretrial dispositions other than settlement, the settlement patterns, lawyers’ satisfaction with the settlements, the types of negotiations, the use of alternative dispute resolution (ADR) methods, events impacting settlements, the frequency of judicial assistance with settlements through court-scheduled settlement conferences, disposition time, the amount of pretrial discovery, and the demographics of the lawyers. The survey questionnaires with the raw data appear in the appendix. Some of the highlights of the studies include showing that the commonly reported 90 percent settlement rate for all cases is a myth. The settlement rate for “all” civil cases is about 50 percent (although almost 90 percent of tort cases settle). Trials are rare; jury trials are very rare. Over the past 50 years, the trial rate in both Hawaii and federal courts has fallen from 12 percent to at or below 2 percent. Over 75 percent of cases that settle, settle without judicial assistance, and about one-half of the cases had no appearances before a judge. Over 90 percent of lawyers are satisfied with both their settlement terms and the settlement process. The most common type of negotiations is telephone negotiations, not face-to-face negotiation, which is the primary method of teaching negotiation in law schools. Telephone negotiations were the event with the greatest impact on settlement. Over 40 percent of cases used some form of ADR process. Multiple settlement events took place in the majority of cases where there was settlement activity. There was a great variance in the amount of pretrial discovery. Almost 50 percent of cases showed no pretrial discovery. Almost 85 percent of the lawyers surveyed had served as an arbitrator, and more than one-third had served as a mediator.
Keywords: Court, settlements, alternative dispute resolution, ADR, civil cases, litigation, empirical data, docket, law suits, litigation, filings, trials, pretrial dispositions, lawyers, satisfaction, negotiation, law, discovery
Suggested Citation: Suggested Citation
Barkai, John and Kent, Elizabeth, Let's Stop Spreading Rumors About Settlement and Litigation: A Comparative Study of Settlement and Litigation in Hawaii Courts (2014). Ohio State Journal on Dispute Resolution, Vol. 29, pp. 85-160, 2014. Available at SSRN: https://ssrn.com/abstract=2398550