Pretrial gone good
by Kathy Boufford
I recently had a really good pretrial experience. A pretrial is an opportunity for attorneys to meet with a judge to review their case shortly before trial. By the time you get to a pretrial, all discovery should be complete. Settlement negotiations between the attorneys have failed and a trial has been scheduled for final resolution of the legal dispute. Sometimes one remaining issue is in dispute. Sometimes the parties are still fighting over all the issues. The pretrial is the last attempt to have the matter settle amicably and with certainty, prior to a full blown trial.
The success of the pretrial depends on all parties involved. Success is defined – in this sense – by settlement. Settlement is voluntary, although the impending trial (and all its implications) is a formidable incentive to settle. Some people just want their day in court, regardless of the outcome. They may want to “tell their story,” make the other party spend as much money as possible, delay the matter as long as possible, try to embarrass the other party, etc. If that’s the case, the pretrial is dead from the start. Some clients – and even some attorneys – are just unreasonable and the recommendation of the judge won’t be enough to nudge them. More often than not, the parties and attorneys are open to the suggestions of the judge and are ready to end their battle and this ugly chapter in their lives.
By this time, most clients realize that failure at this juncture means trial and it’s something they want to avoid. That leaves the judge. Some judges are just not good at mediation – which is essentially what is required at this proceeding. The judge needs to evaluate the positions of the attorneys, understand the motivating factors of the clients, communicate possible outcomes (depending on which judge might hear the case), and then recommend settlement terms that everyone can live with. The judge also needs to do all of this while at the same time making each attorney feel heard and respected. It’s actually much harder than just listening to all the evidence and then writing a decision after everyone leaves. This is why I was so impressed with my recent experience.
The judge not only did all of the above right, but dedicated hours (yes, hours) to the cause, seeing it through resolution. During the process, I and the other attorney gained so much insight into how that judge, and others in the same court, would likely evaluate many issues. There was a lot of back and forth regarding uncertainties and possible resolutions. It was a very collaborative effort (which is exactly what mediation is supposed to feel like).