Is Justice Fair? “Against Settlement”

In my law class tomorrow, we will discuss “Against Settlement.” This essay, written by Prof. Owen Fiss in 1984, raises serious questions—for lawyers but also for everyone.

In brief: Over the past 40 years, court rulings have shunted many disputes away from court and into arbitration. Also, as lawsuits have become exorbitant, ordinary people just “lump” unjust experiences (example: #MeToo experiences)-- or they settle because they lack money and access to see lawsuits to a trial (it often takes five years to get before a jury).  

The counter-point is stated by Prof. Derek Bok: We sue too much; courts produce poor outcomes, and people should find ways to settle their disputes.

I leave you with the core of Prof. Fiss’s point:

“The disparities in resources between the parties can influence the settlement in three ways. First, the poorer party may be less able to amass and analyze the information needed to predict the outcome of the litigation, and thus be disadvantaged in the bargaining process. 

Second, he may need the damages he seeks immediately and thus be induced to settle as a way of accelerating payment, even though he realizes he would get less now than he might if he awaited judgment. All plaintiffs want their damages immediately, but an indigent plaintiff may be exploited by a rich defendant because his need is so great that the defendant can force him to accept a sum that is less than the ordinary present value of the judgment. 

Third, the poorer party might be forced to settle because he does not have the resources to finance the litigation, to cover either his own projected expenses, such as his lawyer's time, or the expenses his opponent can impose through the manipulation of procedural mechanisms such as discovery. It might seem that settlement benefits the plaintiff by allowing him to avoid the costs of litigation, but this is not so. The defendant can anticipate the plaintiff's costs if the case were to be tried fully and decrease his offer by that amount. The indigent plaintiff is a victim of the costs of litigation even if he settles.”

His paper is very readable. It is here: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2206&context=fss_papers