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11 Ohio St. J. on Disp. Resol. 521 (1996)
Hot Coffee, Cold Cash: Making the Most of Alternative Dispute Resolution in High-Stakes Personal Injury Lawsuits

handle is hein.journals/ohjdpr11 and id is 541 raw text is: Hot Coffee, Cold Cash: Making the Most of
Alternative Dispute Resolution in
High-Stakes Personal Injury Lawsuits
When trial lawyers write about alternative dispute resolution (ADR),
they are always quick to point out that not all cases lend themselves equally
well to resolution by alternative means.1 The prevailing view among
litigators is that certain types of cases are not amenable to settlement by any
ADR techniques and can only be resolved by full-scale litigation.2 One type
of lawsuit generally thought to be ADR-resistant is the high-stakes personal
injury suit, a classification which includes medical malpractice, products
liability, and severe personal injury claims.
However, ADR can be successful in high-stakes personal injury
lawsuits. By examining the recent case of Liebeck v. McDonald's
Restaurants3 (popularly referred to as the hot coffee case), a personal
injury and products liability case where the parties resisted settlement, and
by exploring ADR techniques which might have succeeded in that case, it
can be seen how, with some modifications, certain types of ADR can be an
alternative to protracted and expensive litigation.
The facts of Liebeck and a brief overview of high-stakes litigation will
be discussed in the remainder of Part I of this Note. Part II will discuss the
limited success in high-stakes cases of ADR techniques which are not
structured like a trial, such as mediation and negotiation. Part III will
explore the use of ADR techniques which have a trial-like structure, such as
summary jury trials and mini-trials, in high-stakes cases. In Part IV, the
conclusion that trial-like procedures are better-suited to resolving high-
stakes suits, and the implications of that conclusion, will be discussed.
1 See, e.g., M. Neal Rains, A Trial Lawyer's Perspective on Alternative Dispute
TECHNIQUES 1.063, 1.065 (William A. Hancock ed., 1989); ERIC GALTON, MEDIATION: A
TEXAS PRACTICE GUIDE 5 (1993); James F. Henry, ADR and Personal Injury Litigation,
TRIAL, Apr. 1987, at 73; Charles Thensted, Litigation and Less: The Negotiation Alternative,
59 TUL. L. REv. 76, 95-96 (1984).
2 Rains, supra note 1, at 1.065; Henry, supra note 1, at 73.
3 No. CV-93-02419 (Bernalillo County 2d Jud. Dist. Ct., Bernalillo County, New
Mexico, Aug. 29, 1994) (filed Sept. 14, 1994).

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