Judges As Gatekeepers and the Dismaying Shadow of the Law: Courtroom Observation of Judicial Settlement Practices

38 Pages Posted: 28 Feb 2018 Last revised: 19 Dec 2018

See all articles by Ayelet Sela

Ayelet Sela

Bar Ilan University Faculty of Law

Nourit Zimerman

Sapir Academic College School of Law

Michal Alberstein

Bar-Ilan University - Faculty of Law

Date Written: February 28, 2018

Abstract

In the civil justice system, judges engage in case management and settlement promotion more than they do in trial and judgment. Despite the importance of judges’ role in settlement, its empirical depiction and jurisprudential theorization are lacking. This gap likely results from a key characteristic of this judicial practice: it takes place 'off-the-record.' Using original data gleaned from a series of courtroom observations in pretrial settlement hearings in Israeli courts, we present new evidence and analyses of this important feature of civil litigation, which is prevalent in many common law jurisdictions. Based on a thematic analysis of the observations, we discuss eleven structural features, techniques, and attitudes that characterize judges’ courtroom settlement practices. We provide real-life examples of each theme, and discuss our findings in the context of the vanishing trial phenomenon. We argue that in today’s overburdened courts, where trials are the exception, judges often find themselves in a jurisprudentially peculiar position of trial gatekeepers. In this capacity, judges leverage their institutional authority and a host of techniques to persuade litigants to settle rather than to exercise their right to receive a reasoned judicial determination of fact and law. Thus, a striking dissonance emerges in trial courts: Judges—the flagbearers of the justice system—present adjudication as an inferior, option compared to settlement. In the process, judges’ settlement-promoting actions can cast a dismaying 'shadow of the law', that of an undesirable, lengthy, slow, costly, uncertain, unsatisfying, and—at times—even unfair path to justice. In its stead, the day-to-day pretrial reality of civil courts reflects a jurisprudence that is centered on redress, compromise, finality, and cost-effectiveness. We elaborate on this understudied aspect of civil litigation, discuss ethical challenges it raises, and point to possible policy responses.

Keywords: judge, court, litigation, settlement, ADR, observation, empirical legal studies

JEL Classification: K40, K41, K42

Suggested Citation

Sela, Ayelet and Zimerman, Nourit and Alberstein, Michal, Judges As Gatekeepers and the Dismaying Shadow of the Law: Courtroom Observation of Judicial Settlement Practices (February 28, 2018). Harvard Negotiation Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3131664

Ayelet Sela

Bar Ilan University Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

Nourit Zimerman (Contact Author)

Sapir Academic College School of Law ( email )

Hof Ashkelon, 7916500
Israel

Michal Alberstein

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan 52900, 52900
Israel

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