by J. Brooks Terry
Staff Writer
While lawyers as recently as 20 years ago may have taken four to five cases a week to court, today’s litigators say that one or two a year is keeping them busy.
Do these low numbers suggest that the amount of legal complaints filed annually is going down? Hardly. In fact, more and more civil attorneys’ services are retained every year.
“That’s absolutely true,” said Mary Bland Love, an attorney specializing in hospital claims. “We know that because we have more judges than ever before in Duval County. It’s just that the percentage of cases going to trial is sloughing off.”
So why are fewer civil cases going before a judge and even fewer ultimately coming to a verdict there?
“Today we’re seeing more and more parties reaching settlements outside of the courtroom,” said Angelo Patacca, a plaintiff litigator specializing in personal injury and wrongful death claims. “With reasonable clients and good legal representation it’s easy to do that through mediation.”
Patacca, who is also on the Jacksonville Bar Association Board of Directors, estimated that up to 95 percent of his cases each year are settled through mediation.
As the most popular alternative to a formal trial in the last decade, mediation has dramatically cut down on the traffic flow coursing through the civil court system while also saving the time and money of both the taxpayers and those opting to settle there.
“Mediation has become a part of the litigator’s regular diet. It’s an unwritten rule,” said Patacca. “While the law has always favored settling over going to trial, today’s younger generation of litigators are really seeing a lot more of it than our predecessors did.”
Gregg Wirtz, a former trial attorney, now mediates civil disputes full time. As a certified mediator for over six years, Wirtz was required by law to attend a week-long course sponsored by The Florida Bar. Additionally, he sat in on two mediations and co-mediated two more to obtain certification.
He asserts that the primary selling point of the informal mediation process is that it is the only time when absolute control is in the hands of the clients, not a jury.
“There’s always going to be a degree of uncertainty going into the trial process,” said Wirtz. “A client, essentially, is putting his faith in the hands of six strangers. Every lawyer has stories about trials where the verdict was completely unexpected. Even though they may have presented a very strong case for their client, anything can still happen there.”
“Unfortunately,” said Mike Freed, an attorney specializing in commercial litigation, “the jurors aren’t going to have the same vested interest that the parties and counsels do. That’s a fact.”
Mediation, according to Freed, is a far more relaxed arrangement where only the mediator — who is agreed upon by both counsels during pretrial — opposing parties and legal counsels are present. There is no jury, no witnesses and no judge.
“The only requirement is that you have to show up,” said Freed. “For the vast majority of the time, opposing parties who are rational and have the same information will find a way to settle disputes and walk away happy.”
“Mediation is all about compromise,” said Patacca. “There’s no doubt about that. When mediating, two things are going to happen. One side is going to give a little more than they would like to, while the other is going to get a little less. The trial attorney in me isn’t crazy about settling, but as an advisor for my client’s best interests, I’m pleased.”
“In many cases,” said Wirtz, “I’m able to get both parties more money in the long run through a settlement than they would have gotten from going to trial. Going through the courts can cost everyone a lot of money.”
If parties are unable to reach a settlement through mediation, all information, testimony and potential settlements that were disclosed remain inadmissible in a court of law. The trial begins with a clean slate.
“That’s another good thing about mediation,” said Freed. “Everything is highly confidential. Even if you decide not to settle, you at least have a better idea of where the opposing party stands and also gain insight into the strengths and weaknesses of their argument.”
As mediation in civil complaints consistently lends itself to be an effective alternative to the court system, how will that change the way the next wave of litigators practice law? Will competency in the courtroom still be important?
“That’s one of the downsides to mediation,” said Patacca. “The courts will always remain viable in many aspects for civil litigation. Trial advocacy is an art that will remain a regular practice. Much like public speaking, one can become rusty if not constantly honing his skills.”
Freed agrees.
“Most legal activity nowadays does take place in the pretrial stages,” he said. “However, it is important for younger attorneys to remain cognizant of what it takes to try a case even as the percentage finding resolutions there continue to decline.”
Freed suggested that attorneys stay in contact with other lawyers who have recently tried cases while also interacting with judges and reading recent case developments. “A good lawyer will always need to be aware of the state of the art of trial,” he said.
Freed, however, does not lose sight of what’s really important when working with clients.
“If I can keep them happy, then I’ve done my job,” he said. “I’d love to win everything every time, but, realistically, that’s not going to happen. In fact, some of my most rewarding experiences have been steering clients away from lawsuits.”