The Costs of Settlement: The Impact of Scarcity of Adjudication on Litigating Lawyers

This Article, by comparison, focuses on the implications of lack of trial experience for litigating lawyers. Does lack of trial experience affect the way lawyers function in litigation? Does it influence their performance as advocates? As negotiators settling cases? Does it affect adherence to existing ethical standards such as those regarding competence and conflict of interest? Can one expect lawyers to understand, respect, and adhere to the values of an ethical and legal system premised, as ours is, upon a process of adjudication lawyers seldom, if ever, experience? Do the answers to these questions yield any insight for guiding reform of our adjudicatory process and the creation and use of alternatives to that process? This Article concludes that lack of trial experience in a legal and ethical system premised on adjudication threatens the effective functioning and ethical conformity of litigating lawyers. Lack of such experience may already impair that functioning and contribute to some of the current practical and ethical problems in litigation, such as frivolous filings and discovery abuse. Contrary to many critiques of our present legal system, this Article suggests that we should worry about having too little rather than too much adjudication. Lawyers frequently speak of clients deserving their day in court. This Article suggests that litigating lawyers need their day in court as well