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Faster and Cheaper: Kill the lawyers?

So if the dispute resolution system is broke in terms of serving franchise businesses, why can't we make it faster and cheaper? One easy target is lawyers.There's something to that as to lousy lawyers, but really good lawyers are part of the solution.

Let's start by laying out the case for making dispute resolution faster and cheaper by killing the lawyers.  Rabble-rousers would point out that, for the most part, lawyers get paid by the hour, at obscene rates, and that it's to lawyers' advantage to drag out proceedings.  For sake of this discussion, let's call this type of lawyer a Bum.  I am sure that there are plenty of Bums out there.  But, on its own, tarring and feathering the Bums won't get us to faster and cheaper dispute resolution. 

Looking a bit deeper, another problem is from lawyers who are not expert in franchising.  For sake of this discussion, let's call them Amateurs.  When Amateurs take on a case, their judgment as to a case's value or to the value of incremental discovery will not be as good as an expert's judgment would be.  Thus Amateurs may prolong a case because they won't accept a settlement they'd accept if they understood the field better, or they may seek endless discovery that they'd sense would be worth little if they understood the field better.  But, on its own, excluding amateurs won't get us to faster and cheaper dispute resolution.

Drilling even deeper, a problem exists for the best dispute resolution lawyers.  We (since I write the blog, I get to decide which group I fit into) are busy.  I had an arbitration scheduled this week that just settled, and I have an arbitration and then a trial set in the next three weeks.  If a client called me and asked me to handle a dispute that needed to be resolved by arbitration in 60 days, starting with the claim, then discovery, and then the hearing, -- and they said they want me to handle it rather than hand it off to one of my partners or an associate -- I couldn't accept it.  Instead, a client calls now regarding a dispute that's headed toward trial or arbitration, and I get time to prepare a claim or an answer ,and then there's a long pause, and then there's discovery with long pauses, then a long pause, and then a hearing, all of which can take anywere from 6-18 months.  So if the system changes to a faster, cheaper system, the practice of law will need to change.  Good lawyers will be in very high demand, but they will often have to turn down work.  And those of us in firms will need to have a set-up of a group of top-level dispute resolution lawyers, all of them skilled in running a faster, cheaper process, rather than the current set-up of top-level dispute lawyers who are aided by many younger lawyers.

If we do move to a faster, cheaper system, hourly rates will not be the problem.  Businesses will seek out lawyers highly skilled in faster, cheaper dispute resolution that will start and end within 60 days, and businesses will be willing to pay higher hourly rates for these skills.  Bums will be out of work if they seek only cases they can prolong.  And Amateurs' weakness will be quickly exposed because a faster, cheaper process places a premium on good jugment.

Next entry, I'll look at other impediments to a faster, cheaper process - some disputes just aren't amenable to it.

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This is part 4 of a blog that begins here.

About the Author:  Peter Silverman is a franchise lawyer, mediator and arbitrator. You can reach him at psilverman@slk-law.com. Read his biography page.  Any thoughts he offers on Blue Mau-Mau are his personal opinion and are not legal advice.

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About Peter Silverman

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PETER R. SILVERMAN is a partner with Shumaker, Loop & Kendrick, LLP, focusing on commercial litigation and alternative dispute resolution.