All of the activities undertaken during litigation take into consideration the ultimate test of the claim, which is the trial. Nevertheless, only 2% of personal injury claims as a whole are actually tried, and even a smaller percentage of serious dog bite cases are resolved in that manner. There are several reasons for this:
- A trial is unpredictable. The jury members are unknown until the day the trial commences. The judge is unknown in many places; in others, he or she could be substituted out at the last moment, replaced by a different and perhaps unknowledgeable or even hostile jurist. The witnesses frequently testify differently than they did in the discovery process. Expert witnesses might have trouble presenting their opinions because of rulings by the court. Exigencies of scheduling could require putting on the evidence completely out of order, resulting in confusion among the jury. Finally, juries usually arrive at an overall solution to a tort case as opposed to a perfect legal judgment, meaning that they interject their own experiences, beliefs and biases into the case, which are unknown to the parties until after the verdict is rendered.
- A favorable trial outcome is subject to attack. After getting the jury’s verdict, the judge is allowed to change it, and the parties are permitted to appeal it. An appeal requires retaining a new lawyer who does appeals, at a huge additional cost, not to mention the cost of the trial transcript which itself runs into thousands of dollars. It takes several years to complete an appeal, and the result might be the complete retrial of the case.
- Trials are costly. Doctors typically charge thousands of dollars to testify. In some states the parties have to pay for the daily jury costs and court reporter fees. Evidence is now presented audio visually, requiring not only the equipment but also the personnel to operate it. The attorney fee goes up to 40 – 50% per most retainer agreements.
- Alternative dispute resolution is favored by the courts, is predictable, does not rely upon the live testimony of witnesses, and is relatively inexpensive. It has become a big business, meaning that mediators have become full time professionals with training, skills and experience in getting cases settled — so mediation “works.” Arbitration is another solution that is similar to a trial but eliminates many of its costs and uncertainties including the possibility of appeal.
One of the most important tools in the plaintiff’s arsenal is the threat of an immediate trial, which is possible only in states that provide for it under certain circumstances. For example, California has Code of Civil Procedure section 36, which states that persons under the age of 14 and ill people over the age of 70 are entitled to preference in trial setting resulting in a nearly immediate trial in many counties. When a plaintiff is entitled to an early trial, his attorney can be held liable for malpractice for failure to pursue an available statutory trial preference. See, e.g., Granquist v. Sandberg (1990) 219 Cal.App.3d 181.