The Private Mini-trial: Another Settlement Technique
| Publication year | 1985 |
| Pages | 990 |
| Citation | Vol. 14 No. 6 Pg. 990 |
1985, June, Pg. 990. The Private Mini-Trial: Another Settlement Technique
Alternative dispute resolution has become a popular and even faddish topic of discussion for the legal profession. Although counsel are urged to use alternative methods rather than traditional court procedures, skeptical trial lawyers may question the sincerity of some proponents. Some may find it hard to believe that judges would want to surrender any of their power in society or that lawyers would want to reduce their income by decreasing the number or cost of lawsuits. However, much of the activity promoting alternative dispute resolution is coming from a source which may be thought to have more credible motives. General counsel of large corporations are under great pressure to reduce litigation expenses, and they are promoting the alternative dispute resolution movement for its cost-saving benefit.
One alternative method being promoted is the private "mini-trial." This article discusses the mini-trial approach as it was used recently to settle a suit in Colorado. The article also suggests the types of cases or parties for which a mini-trial might be considered. Since a mini-trial can take many different forms,(fn1) the article discusses how to shape and conduct a mini-trial and some of the risks in using this technique.
A mini-trial is not a trial in the usual sense. Typically, a normal civil suit will have been filed. The parties subsequently agree to have a mini-trial and enter a written agreement as to how it will be conducted. The mini-trial normally is a private meeting extending over one or more days during which each party presents abbreviated evidence and argument. The evidence is presented to a previously uninvolved business representative from each side and a neutral legal advisor. The advisor, often a retired judge, presides and helps maintain order.
The parties make their presentation in whatever form they agree upon. At the conclusion of the presentation, the business representatives and neutral legal advisor retire for private discussion and negotiation. The business representatives are expected to conduct good-faith negotiations and to attempt to settle the case based upon each side's presentation. The neutral legal advisor may be requested by the representatives to express an opinion on the value of the case, but his or her views are not binding. If the mini-trial fails to resolve the parties' differences, the civil suit will proceed.
A dispute between businesses, particularly if they hope to do business together in the future, is a good candidate for a mini-trial.(fn2) If the parties tried to negotiate a settlement before suit was filed, there may be a genuine desire on their part to settle the case, rather than through protracted litigation. This creates a favorable environment for a mini-trial. If the parties would have had to conduct substantial discovery if the case proceeded to a traditional trial, a mini-trial with abbreviated discovery may minimize expense. However, the claims must be large enough to warrant the expense of conducting the mini-trial.
Arbitration has long been available to resolve such disputes. However, it is unusual for both parties to be willing to enter into binding arbitration after a dispute arises. Many large corporations are suspicious of arbitration because it provides a binding award which corporate counsel fear may not be reasoned or based on the law. Agreeing to a mini-trial is a less drastic approach because there is no binding commitment to settle the case.
A recent Colorado case fitting these criteria used the mini-trial approach. A medium-sized construction company brought a claim against a major oil company in "CC v. OC."(fn3) The parties had already attempted to settle the dispute, but could not agree on the amount of the settlement.
Suit was filed, including a claim for punitive damages and a jury request, in the U.S. District Court for the District of Colorado. The defendant oil company was represented both by outside counsel and in-house counsel, who took an active role from the outset of the suit. (The active role of in-house counsel is probably a tip-off that the corporation is cost conscious.) Soon after the suit was filed and house counsel for the defendant had initiated direct discussions, the plaintiff construction company suggested that the parties enter into an arbitration agreement.
The conventional strategy of a large corporate defendant to a substantial claim often is to drag out the proceeding as long as possible...
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