Why Litigate?

• Pages: 217-239
• Author: Samuel Issacharoff

217

Chapter 9

WHY LITIGATE?

The astute reader will have noticed how little attention is given

in this book to the pro cesses of trial and appeal. It is, of course, true

that most disputes are resolved prior to formal adjudication or even

litigation. Our lives are surrounded by disputes such as those

between siblings as to who gets the larger po rtion of dessert, or

among spouses as to whose turn it is to take out the garbage.

Fortunately, these everyday squabbles rarely enter the legal system.

And it is further true that even among the great bulk of cases that do

enter the judicial system, the vast majority are resolved well short of

trial. We might add as well that the great work of our system of civil

procedure is to facilitate the resolution of disputes, even after they

have entere d the formal processes of litigation. Yet a bo ok on civil

procedure must acknowledge those few cases in which litigants do

engage the formal dispute resolution pro cesses of the court system

and which are pursued to final resolution through trial.

Moreover, there is something particularly salient about legal

resolution of litigated ou tcomes in the instruction of future lawyers.

Each year, first-year law students are introduced to the study of law

through the case method. The minds of future lawyers are sharpened

by considering the misfortune of the fellow with chest hair on his

palm;

1

the people chasing each o thers’ foxes through the fo rest;

2

the

dimwitted brothers seeking to f arm the Oklahoma hardscrabble;

3

or

the individuals who, unable to make monthly installment payme nts

on their ho me appliances, appeal all the way to the U.S. Supreme

Court for relief.

4

While the claims of injustice are real, there is scant

attention paid to the puzzling issue as to why these individuals and

organizations would give of their time and money to li tigate cases to

judgment and opinion, and thereby provide such a rich source of

teaching material. Wh at’s more, these valiant contributor s to the

education of law students seek no co mpensation for their efforts,

demand no copyright in the product created, and claim no protection

against the snickers and guffaws that inevitably accompany the

repeated recitation of their misfortunes.

What makes the behavior of these litigants all the more peculiar

is the fact that they are clear losers as soon as they enter the

1

Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929).

2

Pierson v. Post, 3 Cai. R. 175 (1805).

3

Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (Okla. 1962).

4

Mitchell v. W.T. Grant, 416 U.S. 600 (1974); Fuentes v. Shevin, 407 U.S. 67

(1972).

218

WHY LITIGATE?

Ch. 9

litigation process. Litigation ensures that the disputants collectively

are worse off than they were before. Whatever the stakes in a dispute

between two parties, there is only one way in which they can preserve

their joint welfare. Any division of the stake between them, whether

it be one side taking all, or half-and-half, or anything in between,

leaves the parties jointly in the same position as when they began

their dispute: however they slice it, they will still have the entire pie

to share. It is only by bringing lawyers into the mix and by subjecting

themselves to the inevitable costs of litigation that the parties

consign themselves to bei ng worse off. O nce lawyers and courts and

filing fees and witnesses and depositions and all the rest are brought

into the picture, the pie starts getting smaller and smaller. Because

this is perfectly obvious, and perfectly obvious to all rational

disputants right from the get go, the penchant of our casebook

warriors to litigate requires some explanation.

No satisfactory explanation may be found simply i n the short-

sightedness of the disputants. Even if it were not perfectly clear at

the very beginning that a trip through the litigation mine field is

costly, that lesson is soon brought home to litigant s. Regardles s of

the contractual terms with their attorneys, and even if represented

on a continge ncy basis, clients soon realize that they are signing

away a significant amount of resources to their newly acquired legal

representatives. In fact, most parties quickly learn this lesson, and a

remarkably stable 95 percent or more of cases manage to get resolved

well short of trial. And even though—as described in Chapter 3—the

number of tried cases has been fallen off a cliff in the U.S., some small

percentage of cases do nonetheless make it to court, and some even

persist in going on to appeal. What accounts for these volunteer

heroes of subsequent legal instruction?

The point of departure for considering this issue could be the

prevailing understanding o f two or so generations ago. At a time

when the question of why cases were fought to conclusion was not

considered pre ssing, the common metaphor for explaining disputes

that went to trial was that they were as rare and random as lightning

strikes. But this earthy metaphor cannot survive o ur changed

understanding of the physics o f lightning. We now understand that

swinging a golf club in an exposed field during a thunderstorm can

affect one’s chances of making the evening news or being featured on

Twitter. So, too, our legal intuitions have advanced a bit. In

concluding this book, it is worth turning our attention to the

emerging understanding of why cases are actually litigated. To do so,

I start by presenting a stre amlined explanation of the first major

improvement in our understanding, the law and economics model of

why cases are litigated. I then consider the limitations that this

model faces in accounting for the actual choices of human beings.