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69 Judicature 279 (1985-1986)
Early Neutral Evaluation: An Experimental Effort to Expedite Dispute Resolution

handle is hein.journals/judica69 and id is 281 raw text is: Early neutral evaluation: an experimental effort to expedite dispute resolution A program now being tested in the Northern District of California could help reduce the scope of disputes and V focus discovery early in a case, resulting in more effective subsequent negotiations. ' by Wayne D. Brazil, Michael A. Kahn, Jeffrey P. Newman and Judith Z. Gold n October of 1982, the chief judge of the federal district court for the Northern District of California, Robert E Peckham, appointed a task force to which he gave one overrid- ing charge: to determine if there are ways the court can help make litigation less expensive for clients. Judge Peckham expressed deep concern about the weight of the financial burdens that even rela- tively routine litigation imposes on the parties. He shared his fear that these burdens impair access to justice and might be compromising the quality of the product that emerges from the adjud- icatory process. He asked the lawyers and judges on the task force to try to develop new procedures that would make the system more economically sensible. While parts of the task force examined the court's arbitration and settlement con- ference procedures, Judge Peckham asked a separate committee to look for other kinds of procedures that might help cut litigation costs. This committee began by studying the considerable body of mate- rial that has been developed by propon- ents of various forms of alternative dis- pute resolution. It then interviewed ex- perts in emerging dispute resolution techniques and studied contemporary analyses of the cost of litigation, attempt- ing to identify where the most money is spent and the causes of the cost problem. A consensus gradually developed in the committee. It became convinced that the place where the most could be saved is in the formative stages of litigation. It is in those stages that patterns and expec- tations are set and thus it is in those stages where an infusion of intellectual discipline, common sense, and more direct communication might have the most beneficial effects. The committee identified several facts of early litigation life that make it diffi- cult for lawyers and clients to resolve disputes efficiently. One is notice plead- ing. Complaints and answers often do not communicate a great deal about the parties' positions and what supports them. Moreover, pleadings often exag- gerate the size of the dispute. To preserve options and, perhaps, for tactical pur- poses, parties tend to assert multitudes of causes of action and defenses, a practice that makes it difficult to locate the true center of their dispute. These pleading practices have at least two ill effects on the cost of litigation: parties must use discovery to learn their opponent's basic position and to assay its underpinnings; and the scope of the discovery parties must conduct is very broad because the scope of the litigation, as presented through the pleadings, is so broad. And the discovery process itself is notoriously expensive, especially in cases where parties are unsure of their opponent's theories or are not inclined to be forthcoming in response to discov- ery probes. The committee concluded, however, that uncertainty about opponents' posi- tions is not the sole source of inefficiency in the early stages of litigation. Another problem is that some lawyers and lit- igants seem to find it difficult to squarely face their own situations early in the life of a lawsuit. Sometimes counsel have difficulty developing at the outset a coherent theory of their own case. Some- times clients are not prepared to be real- istic about their situations. Sometimes litigants and lawyers are so pressed by other responsibilities that they can bring themselves to systematically analyze their own cause only when some external event forces them to do so. Sometimes formidable psychological barriers may stand in the way of such confrontations. It is difficult to make big decisions. It is easier, psychologically, to launch a cam- paign to collect information, thus post- poning serious efforts to come to terms with one's situation. Early, realistic analysis The committee recognized that these barriers to prompt, forthright commun- ication and to early, realistic case analy- sis are major sources of litigation costs. Thus it set out to design a procedure that might help litigants overcome these dif- ficulties. The goal was to design a proce- dure that could take place early in litiga-

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