Disposition Management Revisited

The role of setting firm trial dates as part of the management of cases toward disposition has been discussed.137 In the opinion of the judges and lawyers interviewed, the use of firm trial dates con­trols the settlement process. Plaintiffs’ lawyers report that the Wellington facility has an internal rule that cases not be settled unless they are on a trial list.138 Such a rule would reinforce the importance of trial dates. Lawyers typically comment that trial dates are “indispensable,” that they are “the key” to settlements, and that discussions before a trial date has been set are “fruitless.” One lawyer summarized the situation bluntly: “No one pays with­out a trial date.”

As with any generalization about a process as fluid as litigation, there is a touch of exaggeration in these opinions. Some settle­ments are achieved in asbestos litigation without a firm trial date, but at a dramatic discount. A graphic illustration occurred in one district shortly before an interview for this study. A case was on the trial docket and an offer of settlement had been made by coun­sel representing theWellingtonfacility. The case was bumped from the docket because of a priority criminal trial, and the offer was withdrawn. Plaintiffs lawyer reported that the case did settle be­cause of his dying client’s need for funds. The final settlement, however, was at half the original offer because of the uncertainty as to when the next trial date would be. Similarly, a group of plantworker cases settled recently without a trial date, again at

187. See the discussion supra at notes 113 to 116. 138. See the discussion supra at note 55.

Chapter VI

what the plaintiffs’  lawyers consider to be a fraction of their value.130

Can settlement be advanced from the courthouse steps to an ear­lier time without dramatically altering the terms of settlement and the quality of justice? Earlier settlements should allow all parties to avoid extensive pretrial preparation costs, at least to the extent that those costs are not necessary to evaluate a case for settlement. Early settlement also compensates a plaintiff at a time closer to the date of an injury, when the need is usually greatest. Examina­tion of the efforts of one court to promote early settlement will help to identify its possibilities and costs.