IN REAL ESTATE LITIGATION IS THERE SUCH A THING AS A “SPEEDY TRIAL”?

By Phillip C. Querin

[PCQ Note: This article should not be construed as an indictment of trial attorneys or the jury trial system. Rather, it is designed to provoke thought and possible solutions to a problem that is not going away. The jury trial system is a fundamental right in our country and should be preserved at all cost. However, in its present form, it is becoming a right that is in name only, because so few can afford both the cost and the time.]

Going to Court. Pardon the pun, but disputes involving real estate are a fertile source of litigation. The reasons are many, but the simplest one is that they’re not making any more land. It is a one-of-a-kind asset. Wars have been fought over it and neighbors have killed one another because of it. Real estate disputes are perhaps the one type of litigation in which frequently the actual dirt may be more important to the parties than its monetary value.

And with land, as with many other disputes, some real estate cases just need to be resolved in court. Whether it is a jury trial or a judge trial depends upon the parties’ choice and whether the law permits the matter to be heard by a jury. We’ll save that discussion for another day. But there are a variety of reasons that some cases “need” to go to court. Some reasons are noble – such as vindication of one’s reputation or ownership – and some not so noble – such as revenge or greed.

However, if you want to “go to court” over a real estate dispute – or any other dispute for that matter – you’ll need two essential ingredients: A pile of money and a lot of patience. The money is obvious – lawyers are expensive. But it is patience that can be the most important ingredient. Even wealthy people run out of patience and can tire of paying out money with no end in sight.

The Oregon Experience. The issue of court litigation was recently addressed in the November, 2009 issue of the Oregon State Bar Bulletin’s cover story titled “Oregon’s Vanishing Civil Jury Trial.”¹ The subtitle was “A Treasured Right, or a Relic?” As the caption suggests, the gist of the article questioned the need, cost, uncertainty, inefficiency and delay inherent in the trial system. Although the focus was on jury trials, many of the statistics and issues apply equally well to judge trials, or as they are known among lawyers, “bench trials.”

Consider the following statistics cited by the author:

• Some counties in Oregon go years without having a single civil jury trial.²
• Nationally, only approximately 2% of state civil cases are resolved by a jury trial.³
• When asked in a Multnomah County survey to identify the main factor discouraging clients and their counsels’ use of the jury trial, 40.9% answered that there was “Not enough certainty (the) case will be tried on (the) trial date.”⁴
• In the same survey, when asked to select the primary non-court related factor discouraging the use of jury trials, lawyers responded that “Jury trials are too expensive.”⁵

The article went on to discuss some of the lesser known aspects of the jury trial system, such as too few judges and inexperienced lawyers not knowing how to try a civil case today.⁶ Yet gaining trial experience can be the ultimate “Catch-22,” since you can only really obtain it if you get in a real trial. Knowing how to properly frame an objection, preserve the court record for possible appeal later, or cross-examine a key witness, is far different between the classroom and the courtroom. Yet, with the expanding criminal docket taking precedence over the civil docket due to the speedy trial rights guaranteed defendants by the Sixth Amendment to the Constitution, fewer and fewer judges ever preside over a civil jury trial. This translates into fewer attorneys gaining the necessary courtroom experience.

Of the 197,000 cases filed in Multnomah County in 2008, 71% were criminal cases; 18,000, or approximately 10% of the total, were (non-domestic relations) civil cases. To put a finer point on these numbers, nearly 900 cases of all types, civil, criminal, domestic, evictions, etc., are filed everyday in Multnomah County alone.⁷

In Oregon the number of cases in 2008 that were resolved by a jury was approximately four- tenths of 1%.⁸ Thus, perhaps the most significant consideration for clients itching to resolve their dispute by a jury trial is the almost statistical certainty that the matter will never see the inside of a courtroom. In short, sooner or later it will likely be settled or dismissed. The judicial system is simply becoming too unwieldy to effectively accommodate the increasing number of litigants.

As most people who have been to jury duty in Multnomah County know, it is usually time spent reading a book and waiting to be called for a trial that never occurs because the case ultimately gets settled or rescheduled.

Several years ago, in an effort to deal with the number of civil suits for money damages, the Oregon courts adopted a mandatory arbitration system for claims that were $50,000 or less.⁹ Licensed Oregon attorneys act as arbitrators. This forced the parties into arbitration for what were regarded as “smaller” monetary claims, without depriving them of their right to appeal the matter de novo¹⁰ into the trial court system should either party be dissatisfied with the arbitrator’s decision. However, the process has its own drawbacks; one is that an unsatisfactory arbitration decision can result in having to retry the case, thus doubling the cost. Another is that the $50,000 ceiling can encourage some litigants to simply inflate their claims to avoid the arbitration process altogether.

It has been said that litigation is a “Zero-Sum” game, meaning that one party’s gain is offset by the other’s loss. Unfortunately, when it comes to litigation, this is more than a metaphor. In trial, “I win, you lose” (or vice versa) can be a frequent result.

But in truth, the best result can never actually restore either party to their original position. That is, even if a litigant is awarded 100% of what they are seeking, including all costs and attorney fees, there are some less tangible consequences that are nevertheless lost. Why? Because litigation takes from both parties, winners as well as losers, something they can never recover – their most precious commodity – time. A year lost in litigation is a year that is gone forever. Second, time is money, and in litigation both parties lose the opportunity cost for the use of that money in other, more profitable, endeavors. And perhaps most importantly, there is the emotional toll, which even the most compassionate trial attorney can never experience to the same extent as their client. It is this emotional toll that is immeasurable, since the upset, fear, pressure, and threat of reputational impact can be devastating.

Conclusion. While there are no easy answers to these difficult issues, there are certain principles to remember when considering court litigation:

• You always retain more control over the outcome of the dispute (for example, through direct or third-part negotiation and/or mediation) before a case is actually filed and the court system takes control;
• The longer a case goes on, the lower the prospects for a satisfactory result, due to each party’s continued financial and emotional investment in the outcome;
• The more money spent on attorney fees, expert witnesses, depositions, discovery, and other litigation-related costs, the less money there is to apply toward resolution of the actual dispute;
• If there is a high probability that the case will be settled eventually anyway – as the statistics suggest – shouldn’t that alternative be explored sooner rather than later?¹¹
• If your attorney enjoys the fight better than the settlement, it may be time to switch attorneys.

©2010 QUERIN LAW, LLC