I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal’s Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution

I Could Have Been a Contender:  Summary Jury Trial As A Means to Overcome Iqbal’s Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution

By Nancy A. Welsh.

114 Penn St. L. Rev. 1149.

INTRODUCTION

For decades, lawyers’ bilateral negotiations, rather than trials, have resolved a majority of the civil actions filed in courts in the U.S.   Increasingly, lawyers and clients now conduct these negotiations within court-encouraged or court-mandated mediation.   Some commentators decry these developments,  while others argue that the drafters of the Federal Rules of Civil Procedure always intended to provide disputants with the tools needed to investigate and then resolve their own disputes.   From the latter perspective, a self-sufficient and democratic people (and the legal profession that has developed to serve them ) should be expected to take the initiative to identify alleged harms, communicate with each other, listen to each other’s perspective, review necessary information, and ultimately attempt to reach customized solutions before turning to expensive and intrusive public resources—i.e., judges and juries—for decisions enforceable by the state. [keep reading]