Is Arbitration Ever An Option?

Arbitration is almost always an option.  The questions arises, is it the best option?  That in some cases, it is absolutely the best option.  And I think it’s important to clarify the difference between different types of arbitration. 

Non-binding Arbitration
Non-binding arbitration is a dispute resolution process that many times the court orders you to go through in order to see if you can’t resolve the case short of trial.  Because it’s non-binding, when an award is issued by an arbitrator in a non-binding arbitration, it has no legal affect on the parties whatsoever. 

Binding Arbitration
The second kind of arbitration is a binding arbitration, in which either the parties agree that the arbitrator’s award is going to be the final number and the final verdict amount.  In that case then, it very well might be a good option, because arbitration’s a cheaper, faster, and in some cases more fair way of getting the facts into the hands of a finder of fact, and to have an award issued. 

In Conclusion
The short answer is  arbitration is almost always an option, and in some cases it is the best option.

Why Is Going To Trial So Expensive?

I get asked this question routinely:

“Why is going to trial so much more expensive than other aspects of a case?” 

And that’s a really good question, because that’s sometimes a misunderstood aspect of litigation. 

The Proverbial Ducks In A Row
In order to go to trial — you have to have all your ducks in a row – you have to present the evidence in favor of the plaintiff.  The plaintiff has the burden of proof to prove his or her case.  In order to do that, many times you have to hire expert witnesses to provide qualified testimony about the nature and extent of the injuries.  You have to spend money to prepare detailed exhibits.  Sometimes they’re electronic exhibits.  Sometimes the  exhibits you’re presenting, require a great deal of expert involvement.  Sometimes just in order to prepare the exhibits for a jury’s review, you have to spend thousands of dollars just to have an expert review the data underlying those exhibits and approve the exhibit itself. 

Going To Trial Is Expensive But Sometimes Necessary
Unfortunately, that’s the reality that we live in, and the insurance companies know that and they know that in many cases plaintiffs will settle short of trial because they don’t want to spend those costs.  And they also know that in some cases, some attorneys will they themselves accept less than fair value for a case in order to avoid going to trial.  That’s not my policy and that’s not something I would ever recommend on behalf of a client of mine, because I believe that the preservation of the  jury-trial system is fundamental to our rights as an American democracy or Republican system, however you want to define it.

What Percentage Of Cases Go To Trial?

Ten percent or less.  That’s a national and California state average. The fact is that the vast minority of cases end up in trial.  And that’s a good thing for everybody. Because my clients know once they have to go through trial, that the amount of cost that I spend is going to reduce the amount that they’re going to get in their pocket.  So many times my clients authorize me to settle my case short of trial, just because they know that they’re going to be better off by settling short of trial.  In some cases, though, the only way you can get justice is by taking it to trial.