The `case that could not settle'

AT the final pretrial conference, the judge asked about settlement. ``I'd love to,'' said the plaintiff's attorney, ``but the other side won't put up a dime.'' ``Sorry, Your Honor,'' the defendant's lawyer said. ``My people don't want to make any offer.'' ``No apologies needed,'' said the judge, hoping to project an air of urbanity. ``After all, trials are our business.'' Actually, the judge's thoughts were considerably less calm. Courts do exist to provide disputants with arenas for their disagreements. In fact, however, only 5 percent of all cases complete trial. The other 95 percent of the courts' litigatory diet reaches peaceful concord somewhere between filing and verdict.

Even with this overwhelming settlement tendency, so many cases demand trial that virtually no court system in the country, state or federal, can keep up. Hence the pejoratives: court congestion; civil case backlog; overcrowded dockets. And the accusatory aphorism: Justice delayed is justice denied.

By any rational view, courts are not in the trial business; their merchandise is dispute resolution, an enterprise of which trials form a small fraction.

This brought the judge back to the case before him, a type prominent by its frequency on any trial list: an action against a health-care provider. The judge did not know the cause of the apparent increase: perhaps popular expectation of unfailing good health results; or a belief that no individual should ever have to bear misfortune uncompensated; or even simple acquisitiveness. He did know that the health-care community, rightly or wrongly, regarded them as a deadly threat.

His state, like others, had adopted ameliorative measures. No case could proceed without screening by a special tribunal; and legislation had capped damage amounts. Now the judge was seeing more and more health-care defendants and their insurers adopt a more direct remedy: refusal to settle.

As another defense lawyer had earlier explained, ``The company studies the facts very carefully. We ask an independent expert for a brutally frank opinion. If the expert says that the plaintiff's problem is not the defendant's fault, we won't offer anything, not even what it will cost us to defend.

``Sure, we run the risk that the jury won't agree with us. But we figure that over the long run, we'll do better than if we paid money on every case. More important, we'll discourage people with marginal claims.''

The judge could not call the no-pay policy either irrational or unfair. Beyond the undoubted right of everyone, even insurers, to leave a decision to the jury, an unwavering insistence on paying only ``valid'' claims would certainly deter casual entry into what has been accurately called the Litigation Lottery, the try-your-luck attitude sparked by the negligible out-of-pocket risk (the lawyer charges a fee only if the plantiff wins) and the large potential tax-free reward.

This get-tough attitude, however, raises serious problems for the court system. Health-care cases, even ``simple ones,'' tend to require extended trials. Each side calls experts.

The plethora of learned witnesses often makes scheduling difficult. Professor Omniscient is available only on Mondays; Dr. Knowall will be lecturing in Peking the week of the trial. Tempted though the judge may be to leave the situation entirely to the lawyers, he knows that justice often requires his direct intervention. He must at least try to ensure each side a fair testimonial shot.

The lawyers, understandably, want a Date Certain. Courts are not, like banquet rooms, reservable. The caseload, and the impossibility of accurately predicting trial length and settlement prospects, mean that to guarantee any given date, a judge would have to suspend operation for a couple of days before The Day, so that the preceding trial would not overlap. But that would not help eliminate the existing backlog. Moreover, the judge could not prevent some other judge, in some other court, from preempting one of the lawyers.

Now, looking at the lawyers tensing to start the case that could not settle, the judge thought of the ultimate problem. Would his concern about the implications of this refusal to compromise somehow affect the way he conducted the trial?

Hiller B. Zobel sits on the Massachusetts Superior Court.

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