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Several of the columnists whose thoughts run in this space have had occasion to fulminate about the awkwardness of the name under which our activities labor: alternate dispute resolution. It’s a mouthful of abstract terms that trails the linguistic vapors of things like the tax code and handbooks of military euphemisms. As a former trial lawyer, I used to think that “alternate” seemed a fair characterization. Arbitration and mediation are indeed alternatives to trials. But recent headlines hammer home the fact that such sources of resolution have overwhelmingly become the mainstream, and that trials are the rarity. To put it another way, it’s trials that have become the alternative to more efficient ways of resolving disputes. The New York Times reports that a recent survey of federal district courts reveals that just l.8 percent of civil cases go to trial. One point eight percent! At that rate, so-called trial lawyers who bring civil cases in the federal courts probably try a case about as often as they ask their in-laws for advice on child-rearing. In the state courts, the estimate is that just under 5 percent of the civil cases filed are ever tried. Statewide each year, that means that judges assigned to the civil dockets are trying, on average, about two civil cases a month. These statistics strongly suggest that being a great lawyer no longer consists, for the overwhelming number of practitioners, of cultivating dazzling skills for the courtroom. If trials are the exception and not the rule, the quality of a lawyer’s performance should rationally be measured by not by the completeness of preparation for trial, but by the lawyer’s skill in resolving a claim in the shortest time with the best result by the most efficient means available. To dazzle (and retain) a client, it seems that a lawyer should be able to demonstrate that he or she knows how to get the issue resolved with speed and finality, finding a forum that meets the needs of the particular dispute. Instead of filing a suit and then casting around for some way to get out of the resulting morass, it makes sense to come up with a game plan tailor-made for the problem at hand. So how do you go about it if you plan to be part of the 95 or 98 percent of cases resolved without a trial? First, figure out if the dispute is clearly defined in the minds of all parties. If not, spell it out in a document, maybe even a draft complaint to frame the factual issues and legal doctrines at stake. Your opponents will be a lot more likely to come to the table if the claims are clear and they know that they will not morph or expand. Next, figure out what kind of forum fits the dispute and the parties’ needs best. Some clients are deal-makers who just love to negotiate. For them, mediation fits the bill. Other clients need to have a neutral person actually decide who’s right and who’s wrong. Arbitration with a trusted adjudicator meets the need in such instances. If the client is dead set on a jury trial, make sure that his or her ideas about a jury’s receptivity to the client’s position or attributes is realistic. Figure out how soon the dispute will be ripe. If both sides know what they need to know to frame the issue, look for a forum that can give you a prompt date, avoiding the extra harm that can come from allowing a situation to fester. If more information really is needed, suggest a format for getting it efficiently, limiting discovery to crucial documents or depositions. Clients can be massively influenced by details of process. Pick a forum that is dignified, flexible, and impartial. Avoid rancor over side issues such as the location of the proceeding. No one likes to feel that he or she is being dragged on to the opponent’s turf. If prompt resolution is essential, make sure the forum you choose is set up to serve your client quickly and that it is not too prone to postponements. If a private, confidential resolution is crucial, think hard about the extent to which pleadings and proceedings will have to be conducted in public. And finally, wait for the inevitable TV show in which the hero is not a trial lawyer but a mediator. Beverly J. Hodgson, a former Superior Court judge, is an arbitrator and mediator with the ADR Center, Mediation Consultants, and the American Arbitration Association.

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