Honing the litigation skills of aspiring lawyers in law school through “mooting” competitions has become non productive in the context of making the great majority of aspiring lawyers practice ready. “Court room litigation” will always be an integral component of the common law judicial system. And, of course, the general public is enthralled with the excitement that litigation brings to their world of law. To Kill a Mockingbird with Gregory Peck playing Atticus Finch as a spell binding small southern town courtroom lawyer was released in 1965 and remains ranked as one of the top 25 movies ever released by the American Film Institute 50 years later. Contemporary DVD courtroom drama series like Damages and the Good Wife are “stay up all night to watch all episodes events” on HBO. And for those with insomnia, there’s always those timeless Perry Mason re-runs on late night television.
However, in the real life world of real lawyers the adversarial approach to resolving legal issues through formal “court room litigation” is becoming increasingly relegated to either very narrow practice silos such as criminal law, “bet the firm level disputes, the last resort when all other avenues have been exhausted and/or to high end public policy issues whose resolution require the ruminations of the best of legal minds in the judiciary through the pros and cons of what can be artful courtroom debate. Moreover, a series of studies under the auspices of the Supreme Court of Canada found that in the majority of family law cases where litigation is required parties are choosing to become “pro se” litigants acting on their own behalf in response to the affordability barrier associated with the retention of independent counsel. In an effort to put a more comfortable and affordable face on family law a number of family law lawyers are promoting themselves as non-litigation law firms with an emphasis on mediation and negotiation to resolve disputes. Small Claims Courts are now ubiquitous providing individuals in straightforward commercial and personal interest disputes with opportunities to ‘make their case” before a judge in a “lay person user friendly” courtroom setting. The Province of British Columbia is set to launch it’s leading edge electronic “Civil Resolution Tribunal” that will enable individuals to settle “run of the mill’ disputes through an electronic portal in real time with access to a lawyer who has dispute resolution skills at an end point if the parties can’t come to a mutual agreement.
So why are law schools still promoting “mooting” as a key component of skills development in the legal education process when it’s becoming increasingly obvious that it’s arguably become a niche professional skill that only a very select cohort of practicing lawyers is ever going to utilize or even need? Moreover, a number of well documented studies suggest that the development and/or honing of high octane litigation skills through mooting are guilty of turning out lawyers with adversarial mindsets and confrontational attitudes that impede the development of strong client relationships.
I provided professional consulting services to major insurance companies’ litigation management departments for a number of years. The public tends to associate insurance defense with courtroom litigation. A logical extension is that insurers want to retain “crackerjack” litigation lawyers to represent them in insurance claim disputes. The opposite is true. Certainly insurers do retain the best and brightest of the “take no prisoners breed” of litigation lawyers to represent them in major disputes, especially those with precedent setting implications. However, 80% of insurance defense falls into the category of claims management/settlement. Insurers are looking for lawyers with cost effective claims management capability and good facilitation/negotiation skills to represent them in the bulk of their insurance defense claims. My role as insurance defense consultant was twofold. First and foremost, to identify costly courtroom driven litigators and eliminate them from the referral panel. Next, was to develop litigation claims management systems for “insurance claims settlement savvy” lawyers recruited for/and or retained on the panel that focused on cost effective litigation management through a “Uniform Task Based Management System” (UTBMS utbms.com/dri-revised-litigation-code) and claims settlement.
What has traditionally been labeled in law schools as a course in Alternative Dispute Resolution (ADR) is now in the mainstream for dispute resolution (DR). Mediation and arbitration, are increasingly becoming the preferred first course of action in dispute resolution. Many courts now have first step processes wherein potential litigants meet with a judge in a chambers setting where they attempt to facilitate constructive dialogue between opposing parties in an effort to resolve disputes. Courts now make active use of “case flow management” programs to steer prospective litigants out of the courtroom at an early stage into some form of negotiation arena
All of this is going on in the legal services market. And as courts become more electronically proficient, expect more innovative dispute resolution programs to be put in place. Law schools need to embrace dispute resolution as the mainstay of skills development and “boot the moot”.