People have commented so often on the loss of opportunities actually to try cases that little more needs to be said about it. Discovery seems unrestrained, costing so much and taking up so much time that after paying for it, the parties really don’t have the stomach to take a further risk by submitting the case to the roulette wheel of the jury.

This applies to both plaintiffs and defendants. A defendant and his or her attorney cannot spend so much money before trial and then risk losing more money in the form of a jury verdict. A plaintiff and his or her attorney cannot go too far in the hole on the cost of discovery and experts and then face the possibility of figuratively setting that money on fire by losing at trial.

It adds to clients’ fear of trials that judges generally are reluctant to rule on pretrial motions. Litigants don’t know what the legal rulings will be before trials, leaving them in a frightening poker game, where they are forced to make bets without knowing the value of their cards. A sensible client can’t bet big money on a blind-draw card game.

Originally published in For The Defense - May 2013.