CHAPTER 1 SHORTCOMINGS OF LITIGATION IN DISPUTE RESOLUTION AND A SURVEY OF ALTERNATIVES TO JUDICIAL DETERMINATIONS
| Jurisdiction | United States |
(Mar 1984)
SHORTCOMINGS OF LITIGATION IN DISPUTE RESOLUTION AND A SURVEY OF ALTERNATIVES TO JUDICIAL DETERMINATIONS
Welborn, Dufford & Brown
Denver, Colorado
I. MINERAL LAW AND THE JUDICIARY
A. HOPELESS DOCKETS
As of June 30, 1983, the Administrative Office of the United States Courts reported that 29,630 cases had been filed in the United States Courts of Appeal during the preceding twelve month period. This was a 61% increase over the same period which ended on June 30, 1976.1
In the United States district courts, a total of 241,842 civil cases were filed for the 1982-1983 twelve month period. This represented 470 cases for each of the 505 authorized judgeships.2 On top of this, 277,714 criminal cases were filed in those courts.3 This case load was 85.2% greater than the case load for those courts during the twelve month period ending June 30, 1976.4 Additionally during the 1982-1983 period the district courts convened 11,157 grand juries, and there were a total of 222,980 grand jurors in session during that twelve month period.5 Within the same period U.S. Magistrates handled 363,710 matters, and the Bankruptcy Courts received 535,597 new filings.6
As alarming as those figures are, they become even more astounding when they are added to existing caseloads. For example, the 30,000 new cases which were filed in the United
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States Courts of Appeal were in addition to the 22,000 pending cases in those courts.7
Although these figures pertain to only Federal Courts, they are representative of what has happened to the various judiciary branches all over the United States.8 Obviously, the courts are being submerged to the point of hopelessness by enlarging caseloads, and no workable solution to the problem has been found.9 It is now realized that creating more official judgeships cannot correct the problem, and could dilute the quality of law.10 Case delay and many unthoughtful decisions are now the rule rather than the exception in the courts.11
The effects of extreme delay and cursory handling are harmful in any kind of dispute, but they are especially troublesome in most mineral law cases, where the amounts involved are of large magnitude and where time is generally of the essence.12
B. SOARING COSTS:
Legal fees have never been higher in the United States than they are today. In more recent years the increase of legal rates in metropolitan areas has outstripped the rate of inflation.13 In the cities, expenditures for law office space and law office equipment are being made in unbelievable amounts. The $200,000 computer or word processor has replaced the $200 typewriter.14
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And yet the increased cost of using a legal professional is only part of the problem. Trial techniques now include an endless and highly costly endurance race of every discovery tool available. In a fairly involved mineral law case the cost of depositions, interrogatories, and requests for admissions can exceed the value of the mineral involved in the litigation. Discovery is costly not only in terms of dollars spent for lawyers' time, but also in terms of the time used by employees and officers of litigant companies in responding to discovery demands. Their real work goes begging during the time they search for records and meet with lawyers.
C. THE JUDICIARY AND MINERAL LAW:
All courts receive a great variety of civil cases, and are required to rule on virtually every kind of legal question. Considering this enforced diversity and lack of specialization, the accuracy percentage of judicial decisions is generally pleasantly surprising.
However, I'm not confident that mineral law cases in most Rocky Mountain jurisdictions enjoy a high scale of error-free rulings. This is not a statement which can be documented, but I have had personal experiences in mineral document cases and in mineral trespass cases that convince me this is a valid conclusion.15 Other attorneys, I'm sure, have had similar experiences.
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Mineral law is a complex and refined body of law, and the monetary amounts involved are usually on a large scale. Moreover, the factual issues involved in many cases can be highly technical and difficult. Evidence on such technical matters often should be evaluated by professionals with backgrounds other than legal.
Time is also usually a critical factor in mineral cases. Often expensive mineral operations must be stopped or slowed until a dispute is resolved.16
These things all point up that the need for non-judicial dispute resolution is even more pressing in mineral law cases than in other areas of the law.
D. THE APPEAL PROCESS:
Whether any dispute should ever be determined on a basis that there cannot be an appeal from the initial decision is always debatable. It can be horrifying to submit to a determination from which you can't seek relief for error. But the risk of waiving rights of appeal exists only when the chances of error in the initial decision are high. By minimizing the possibility of initial error you minimize the need for appellate review.
In mineral cases, reduction of the risk of error can be accomplished in private dispute resolution by utilizing professionals that are well trained in the subject matter of the controversy.17 Also, bringing matters to hearing before
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executives from the adversary parties together with a neutral advisor seems to work well in complex disputes.18
If the possibility of error can be reduced and if appeal rights can be more safely waived, the benefits to mineral litigants is obvious. The average time for final determination on an appellate case in Colorado is now two to three years following filing in the Colorado Court of Appeals,19 the better part of a year in the Colorado Supreme Court,20 and one to two years in the United States Court of Appeals for the Tenth Circuit.21 Viewing these time periods, and considering that in the mineral industry time is money and delay is costly, the benefits of a swift and final determination become obvious.
E. PUBLIC EXPECTATIONS:
In today's society there is more and more pressure upon lawyers to resolve disputes in forums outside the normal legal structure. Part of this is the result of the current lay disenchantment with our legal system.22 But, beyond that discontent, is the problem of grand expectations on the part of the public as to what our legal system can actually deliver.23 Until the Watergate scandal, there was an inclination on the part of this society to appraise our legal system against the standard of whether it was delivering substantial justice.24 In current years this is not the test. More and more the public demand is not for some justice,
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or for substantial justice, but rather for perfect justice. Again, because of the stakes involved and the time pressures which exist in situations involving the mineral industry this expectation is even more often expressed in mineral cases. It is, of course, an expectation that no legal system can meet, let alone one that is staggering beneath undreamed of caseloads.
F. LAY APPRAISALS:
Whether it is the result of a public expecting too much or the product of a legal system that is not functioning well, one thing is clear. The layman of today holds a very low opinion of lawyers, the law and of the entire judicial system.25 Almost monthly the media, in one form or another, comes forth with a new indictment of our legal system.26 Much of the criticism comes from within the legal profession itself. Unhappily there is not a great deal that can be done within the judicial system itself to correct all of the current faults and to stem all of the criticism. As a result we find ourselves in the midst of a national effort which is searching for justice without law.
II. THE SEARCH FOR JUSTICE WITHOUT LAW
A. THE ALTERNATIVES TO JUDICIAL DISPUTE RESOLUTION
What we are experiencing today in the form of efforts to seek alternatives to judicial dispute resolution is not a newborn thing. The alternatives that are being discussed and
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used currently are those of negotiation, settlement, mediation, arbitration, the use of masters and referees and private judges. But all of these techniques have been around before in our history. The earlier usage of such methods should be surveyed today, and particularly as a part of this Institute, if we are to know what they can do, and how they should be used.
Jerold S. Auerbach, a visiting scholar at Harvard Law School, has attempted to trace the course of non-legal dispute resolution in the United States. The findings of his study appear in his most current book, "Justice Without Law?"27 It is helpful to review here certain of his conclusions.
B. COLONIAL PATTERNS OF MEDIATION:
In the 17th century world of the puritans and pilgrims, legal dispute settlement was explicitly discouraged. It was the belief of the Reverend John Cotton and others that to sue a fellow church member in a court of law was a defect of brotherly love.28 As a consequence, dispute settlement was moved into the churches with arbitration very often preceding the church hearings.29 Admittedly, this was a blending of church and state, however, the concept of separation was not viewed by them as being necessary or, for that matter, was not viewed as even being proper.30 In the town of Dedham, south of Boston, all internal disputes were settled without lawyers or courts, either by arbitration, mediation, "or any other peaceable way."31 It was the practice of that community to
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resolve not only the internal disputes of its own villagers by such means, but also to settle disputes with neighboring communities in such a way. In the pacifistic settlements of the Quakers, disputes were settled under a procedure known as the "gospel order".32 According to Auerbach, under such procedure the complainant...
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