We trial lawyers and our clients are trapped in a litigation settlement machine. The machine is made of various parts that are each added one at a time—some of them well-intentioned, others not—but each added without regard to the operation of the whole. What we have ended up with is an overdesigned and unduly expensive system in which settlement is forced upon lawyers and clients who would really prefer to have their dispute decided, not settled.
It is beyond dispute that our system of justice depends utterly on settlement. Practically all civil and criminal cases end that way. But everyone acts as though that is a good thing. Judges love settlements as relief from their caseloads. Everyone is supposed to love mediation and other forms of alternative dispute resolution (ADR) designed to promote settlement. Many, if not most, lawyers view settlement as the goal and celebrate good ones as victories.
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