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2004 J. Disp. Resol. 57 (2004)
Damages: The Litigation Environment

handle is hein.journals/jdisres2004 and id is 63 raw text is: Damages: The Litigation Environment Stephen D. Easton* Damages' is, at least in part, the story of a lawsuit. In some ways, it is a fairly typical lawsuit. In other ways, it is rather unusual, due to the significant damages potential of the suit. Therefore, some of the lessons to be learned from the story of this lawsuit may be applicable to lawsuits in general or, at least, to typical civil suits, while others may not. In this portion of the symposium materials, we will explore the litigation process that led to the settlement in the case. Because other portions of the sym- posium will focus on the negotiations among the parties and the attempts to re- solve the dispute through mediation, this portion will focus on the formal and informal pretrial litigation process. While this discussion will not ignore the offi- cial rules of litigation, it will focus on the unofficial rules, mores, and practices followed by the attorneys in this and other civil suits. Although the dispute among the Sabias, Dr. Maryellen Humes, and Norwalk Hospital was ultimately settled out of court, the formal litigation process played an important role in this resolution. Indeed, it is difficult to imagine how the Sabias could have received any compensation for their damages without at least threatening to pursue their claims through the formal litigation process, including, if necessary, a trial and perhaps even post-trial appeals. Therefore, an understand- ing of the dynamics of the dispute and its resolution requires some understanding of the formal litigation process that at times provides the framework for the proc- essing of the dispute and, at other times (including negotiation and mediation), provides the background for the resolution of the dispute. I. LITIGATION AS FRAMER OF DISPUTE RESOLUTION To attorneys, law students, legal academics, and others who study and care about the resolution of civil disputes and the interaction among disputants, the formal litigation system is such a familiar part of this process that we sometimes forget that it is present and playing a role in the resolution of disputes. This is particularly true when the parties ultimately resolve disputes without a trial or other court-annexed dispute resolution mechanisms. Even when parties resolve civil disputes without ever filing suit or otherwise taking a single step in the formal litigation process, that formal process influences the parties' efforts to resolve their disputes and, at a fundamental level, makes resolution of disputes possible, by making consideration of disputes possible. Without the threat of litigation, would-be plaintiffs would not be able to even get * J.D., Stanford Law School. Associate Professor, University of Missouri-Columbia School of Law. 1. BARRY WERTH, DAMAGES: ONE FAMILY'S LEGAL STRUGGLES IN THE WORLD OF MEDICINE (1998).

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