Failing Faith in Litigation? A Survey of Business Lawyers' and Executives' Opinions

Abstract

This study analyzes the opinions of commercial litigators in private law firms, inside counsel who do some litigation, and nonlawyer executives in business firms. It measures the respondents' views about litigation, their expectations about consequences of litigation for them personally, and their perceptions of the opinions of influential people in their lives about litigation. The outside counsel tended to be most positive, executives were most negative, and the inside counsel fell in between.

Lawyers, especially younger lawyers in large law firms, generally had faith in litigation. Even they, however, were somewhat frustrated by it, especially by the cumbersome nature of the process. The problems that eroded outside counsel's faith relate primarily to delay and expense of litigation. Outside counsel's faith was also sapped by a perception that litigation does not serve their clients' interests well. Indeed, most business executives did not have much faith in litigation, with views typically ranging from mild displeasure to total contempt. Many executives harbored great doubts about the integrity of litigation in finding the truth and producing fair results.

For the lawyers, especially the outside counsel, relatively modest reforms to streamline litigation might deal adequately with their principal concerns. But this strategy would be inadequate to address executives’ concerns. The article considers two options for dealing with executives’ failing faith and concludes that they both are problematic. One option would be to radically simplify the legal system but it seems unlikely that such reforms would be adopted or implemented systematically. Ironically, the second option, increased use of ADR, may undermine faith in litigation. Implicitly and often explicitly, ADR is premised on a lack of faith in litigation. Moreover, in many cases, mediators and lawyers counsel parties in mediation to accept settlement by highlighting potential unpleasant vagaries of continued litigation. In addition, if ADR practice becomes increasingly legalized, parties may become disenchanted and look for alternatives to both litigation and ADR.

This study suggests that adopting careful procedures for managing cases in litigation, including shifting some cases into ADR procedures, may be beneficial but is not likely to be sufficient to restore much faith in litigation. Indeed, it suggests that generating faith in litigation is likely to be more difficult than one might expect.

Keywords: litigation, ADR, alternative dispute resolution, mediation, business, commercial disputes, lawyers, empirical research