The Increased Role of Alternative Dispute Resolution in New York Personal Injury Lawsuits

Thumbnail image for courtroom.jpgSyracuse New York personal injury jury trials are fewer and farther between than only a decade ago. The same can be said for all Central New York personal injury jury trials. In fact, the same trend is being noted throughout the entire State, as well as the other 49 States. Read about it for yourself, but clicking here and here. All civil jury trials are down in numbers, everywhere.

Let’s be clear; although the number of lawsuits filed has remained steady over the last decade, fewer and fewer of those lawsuits are going to trial. Here’s a vivid demonstration of the trend: In 1962, more than 11 percent filed civil lawsuits in federal court went to trial. By last year, however, that percentage had dropped to 1.8.

If almost 98% of personal injury lawsuits are not going to trial, what is happening to them? Many of them are being resolved by “alternative dispute resolution”, (known as “ADR”). In some areas, ADR has overtaken trials as the predominant way to resolve personal injury lawsuits as well as other types of civil disputes. ADR consists mainly of “mediation” and “arbitration”. “Mediation” is a non-binding settlement procedure where a neutral “mediator”, usually a lawyer or a retired judge, tries to bring the parties to a reasonable settlement that is acceptable to both sides. “Arbitration” is an informal hearing where a lawyer or retired judge hears the case, and decides it, but the formal rules of evidence, such as the bar against hearsay, don’t usually apply.

What has changed since the 1960’s? Why are cases being resolved by ADR rather than jury trial? Here’s my take on it; juries were more plaintiff-friendly back in the 1960’s. In the 1960’s, many New York injury lawyers would rather take their chance at trial than settle out of Court. But with all the negative publicity personal injury lawyers and cases have gotten since then (the “MacDonald’s case”, etc.), the jury pool is now biased against personal injury victims and their lawyers. More and more Syracuse New York personal injury cases, as well as such cases everywhere else, are tossed out by cynical juries. This makes Central New York accident lawyers, and such lawyers across the nation, more willing to consider ADR.

Also, ADR was hardly even heard of back in the 60’s. It really wasn’t an option. Now it is a fast-growing method of resolving New York accident cases, as well as other civil cases, principally because, compared to trial by jury, both the costs and the risks are greatly diminished.

The costs are reduced because the parties usually don’t have to pay experts to give testimony; their reports can be submitted informally. At trial, the formal rules of evidence would not allow for this. Experts are expensive. For example, I am trying a case next month where the medical doctors I am putting on the stand are charging me a total of about $4,000 each, and since I have 4 of them, that will cost us $16,000. Mediating or arbitrating the case would probably save me, and my client, that money.

The risks are diminished in ADR, at least in mediation, because the injury victim is almost sure to walk away with some money, whereas a jury trial is a roll of the dice; we could win big, we could get a goose egg verdict, or we could get anything in between.

Most of my clients would prefer to take a little less than they feel they are entitled to rather than risk getting a thumbs-down verdict by a jury of strangers who might not understand their case or injury. In the end, resolving a case by trial is a gamble – and an expensive one – that most clients would prefer to avoid.

A good New York trial lawyer has to be prepared to jury-try his cases. But if he is truly representing his clients’ interest, he will be open to ADR and consult his client about this option as well.

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