Tag Archives: settlement

Five Years Of The Litigators’ Blog

It’s hard to believe that this blog marks the five year anniversary of our inception of the Litigators’ Blog. We have tried over the last five years to provide you, our readers, with the most current developments-of-interest to Massachusetts litigators. We have sought to inform, and, when appropriate, offer insight and advice, on the significance of recent developments in the law.

Our latest blog, for example, discusses a recent Appeals Court case involving a general release which a party sought to avoid, advising caution when one seeks more than a straightforward general release of liability in a document.

We have given advice on a wide range of topics — how to access your client’s insurance policy even when the insurer agrees to defend the insured without a reservation of rights, how a non-party to an arbitration agreement can compel an adversary to arbitrate, how to avoid forfeiting an affirmative defense, how to avoid sanctions for deposition communications, and how to draft a settlement agreement to provide a mechanism to best enforce its terms. We have discussed the possibility that a stipulation of the parties will not be enforced, the scope of the new federal discovery Rule 26, and the value of a motion in limine.

From time to time we have talked about our travels, including a six-city, seven-day trip to see major league baseball games, and a hike to the summit of Mount Katahdin in Maine. Occasionally we have commented on current events, as when we gave our perspective as litigators on the Tsarnaev trial.

We hope you have found our blogs to be informative and perhaps even moderately entertaining. We certainly have enjoyed posting them.

This is as good a time as any to acknowledge the invaluable support of Jackie White, who makes sure our blogs are prepared and posted on time, our secretary, Rachel Hendley, and our indomitable editor and partner, Liz Ross.

And now, on to the next five years of the Litigators’ Blog.

Requiem for the Jury Trial

I just completed a three week jury trial in a complicated fiduciary duty/freeze-out case and am left with the inescapable conclusion that it is just too bad there aren’t more jury trials. We all understand the tremendous costs associated with conducting a trial and the understandable aversion that clients, especially business clients, have toward the considerable risk associated with any trial, and perhaps especially a jury trial. But the jury trial is a time-tested vehicle for dispute resolution, and it advances public education, development of the law, and confidence in a transparent judicial system.

There is nothing quite like preparing a case for a jury trial, or any trial for that matter. By the time the case is prepared for trial, the only stones left unturned involve a last look at strategic decisions previously made. Pitching the case to representatives of the community at large who sit on a jury results in a focus that enhances true democratic decision-making as opposed to “elites” huddling in a private office working out the details of a confidential settlement. In a recent case, Judge William Young of the U.S. District Court for the District of Massachusetts waxed poetic:

  • Every trial is a public morality play – perhaps a story of greed and avarice or amoral chicanery, all of it played out live upon actual, understandable evidence before twelve public judges largely chosen at random. The result is the fairest, most incorruptible, democratic expression of justice humankind has ever known.”

U. S. v. Aegerion Pharmaceuticals, Inc., No. 17-10288-WGY (Memorandum and Order dated November 20, 2017 on Motion to Accept “C” Plea), at page 21.

There could be little doubt that actual trials enhance the public’s understanding of the law and, perhaps more importantly, demonstrate how real live disputes are resolved. It is obvious that settlements negotiated behind closed doors serve no such purpose. It is perhaps equally obvious that the development of the law is stifled when there are fewer examples of the application of law to real cases from which new law can develop. If the trend against trails continues, and there certainly is no evidence that it will not, it will be interesting to see how the understandable forces minimizing use of the trial will play out over the long run.