Vail Law: Crafting your own resolution far superior to courtroom drama (column)
September 19, 2017
Court is one of the places where I am most at ease, knowing I am in my element. I love the high drama of a courtroom, the thinking on your feet and the rituals of the courtroom. But despite my deep affection for the halls of justice, I have learned in three-plus decades of practice that — most times anyway — the worst place to resolve a dispute is before the court.
Let me make clear that this has not a thing to do with either the earnestness or competence of judges. Most are good beyond good, sincere beyond the slightest question, committed to the law and justice. Instead, what it has to do with is tiny slices, prejudices and mindsets, which I will explain as we go on.
Many years ago, I was in the middle of a trial. During one of the breaks in the proceedings, the judge invited both attorneys into chambers. He sat down heavily behind his walnut desk, removed his glasses, massaged the bridge of his nose and then placed both hands over his face as if, nearsighted, he was examining a book. When he peered up over the volume of his hands, he regarded the other lawyer and me with the weight of 30 years behind the bench. "Why," he asked, "do these people want me to decide this for them?"
I thought that he had cracked. "Because you're the judge?" I thought of asking, but it was deeper than that, and he went on before I had a chance.
He said, "These are some of the most personal things in these people's lives. I don't know anything about them. I don't know what's important to them. I don't know their values. I don't know their interests, what compass guides their lives or anything that makes them tick. Wouldn't they," he paused and wearily regarded us, "be better off deciding this between themselves?"
He shooed us out of this office. "Let's take a short recess. Give it one more try. Go talk to your clients. See what they might be able to work out before we resume proceedings."
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Putting that on ice for just a sec …
About a decade or so ago, I had a two-month-long federal court trial. There were six companion state court trials, each taking several weeks, all essentially regarding the same issue. Among the seven trials, within which the same witnesses testified and the same evidence was presented, we achieved four different verdicts. Although we "won" all seven trials, the details of our victories differed. In some, we were awarded compensatory and punitive damages. In some, punitive damages were not awarded. In some, we were awarded both pre- and post-judgment interest. In some, we were awarded only one or the other. All of these were jury trials, and to coin and twist a famous Art Linkletter phrase, "Juries do the darndest things."
In the federal court trial, among the 12 jurors, 11 of them nodded along with us through the eight weeks of the trial. We could tell that they were with us. One, however, the jury foreman, wasn't buying what we were selling. We could tell by his thick arms crossed over his chest, the disbelief screwed up on his face and the headshakes when we were seeking nods, that he would be a holdout when the case went to the jury.
And so he was.
When the jury sat down to deliberate, Juror No. 1 was apparently persuasive. He dealt and bargained and, although the jury came down in our favor, he exacted conditions from the other jurors. He would only go along if punitive damages were not awarded, and at the end of the day, the other jurors lined up behind him.
It was victory — a solid base-clearing triple — but not a home run.
So, back to slices, prejudices and mindsets: What I mean by them is this:
A judge or jury only sees a tiny slice of the lives and issues that are in question in a courtroom. Not only does the time allowed permit only a vignette of the dispute, but the rules of evidence dictate how and what gets into evidence. By necessity, decisions must be made based upon only the tiniest window into the dispute and cannot consider the hopes, beliefs and aspirations of the contestants.
By "prejudices," I mean we all have our way of looking at the world. And our world view influences how we perceive most everything. Whether judge or jury, we all enter the arena of the courtroom influenced by our past and experiences, the way each of us is wired and as none of us are precisely the same, we judge differently the way the drama in the courtroom unfolds before us which yields unpredictable results.
What I have learned in 34 years of litigation is, however comfortable I am within the "helmet" of a courtroom, the last place you want to be is in court. Most times, it is wisest to craft your own resolution, even if reaching out to your opponent means a bit of limbering up your rightful indignation.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.