Are you studying correctly?

Working at a university is a great experience, except for the week or two leading up to finals. The pressure ratchets up and you can really feel it. While many students work hard the entire semester, just saying “test” or “final” increases anxiety and you can see the increased attention students give to tests at the end of a semester..

The folks at Scienedump (via have a great infographic on the “science of study”–putting into graphics the neural processes when we study (and this isn’t limited to just students–anytime we’re working on new information, we are studying). When you learn new information, your brain grows!

The science says that cramming isn’t effective for long-term recall, regular testing seems to lead to better retention, and night-owls perform worse on tests than others.

Keep those synaptic connections firing! Study new things a little bit at a time, over time, for the best chance to retain those memories.

False memories

New York Times/Rich Docherty

New York Times/Rich Docherty

The American justice system is based on eyewitness testimony. We bring people into court to tell the finder of fact what happened. This is often supplemented by documents, computer records, and these days, video recordings and genetic testing.

We still use eyewitnesses to help us understand what happened. The problem is that our minds work in such a way that witnesses often get things wrong. The New York Times recently published a story titled “Witness Accounts in Midtown Hammer Attack Show the Power of False Memories.” You can find that story here. You can find about the attack here, here, and here.

Our psychologist friends aren’t surprised that eyewitnesses often miss facts. Even mice may have false memories! The Times quotes several psychologists who say that false memories are very easy to make. The Times even speaks to an eyewitness who described the scene but when compared with the video, the witness observed things that didn’t happen.

Our minds are wonderfully complex machines. They have to make hundreds, if not thousands of decisions a second to help protect us from the myriad stimuli that we experience every moment of our lives. We think we know what we saw, heard, felt, or read, but the reality is those things have been filtered for us. And as the Times’ article explains, our recollections not only err on what we saw, but a significant portion of the time, our minds invent facts that weren’t shown to us.

Have you experienced a witness or a client with a false memory? How was that memory shown to be false? Did the witness understand the falsity of the memory when shown a document or video that showed a different reality? Please share your experiences.

Arbitration Trendsé_Daumier.jpg

Brooklyn Museum – A Defense Lawyer at the Court of Arbitration Discussing Business at his Usual Office Premises (

Today’s General Counsel published its Arbitration Trends for 2014. This is a good read.

General counsels were asked why they arbitrate and why they don’t. Respondents said that they arbitrate because (1) it’s required by contract; (2) it’s confidential; and (3) it’s less costly. Interestingly, none of these top responses obtained 50% approval.

When asked why they don’t arbitrate, respondents said they don’t because (1) arbitration can be too quick; (2) arbitrators tend to “split the baby”; and (3) cost and time advantages can be illusory.

Lately, I’ve been thinking a lot about the users (clients) of ADR processes. While Today’s General Counsel has another article summarizing a study showing arbitrators don’t “split the baby”, that perception exists. If the hard numbers show the opposite of perceptions, why do so many users have perception?

What are your thoughts on the state of arbitration? Is arbitration meeting its promise of an alternative to traditional litigation? Or has it become a form of private dispute resolution with the same discovery expenses and motion practices found in traditional litigation? Please share your thoughts.



Why the decrease in civil trial filings?

The Texas Lawyer notes that the filings for civil disputes are down 17% over the past decade. Angela Morris, the writer of the article, does a very nice job of outlining broad categories of cases and the numbers of filings since 2005. She also interviews a handful of people who provide possible explanations for the decrease in civil case filings.

Tort reform was a common answer to the question of “why are civil case filings decreasing?” Those who provided that answer say that rights that existed in the past don’t exist anymore and that certain cases are no longer economically feasible. Another explanation involved pre-suit mediation and arbitration. In sum, because trying cases has become more expensive, parties are either trying to resolve their dispute before filing or simply choose not to file at all.

Chief Justice Nathan Hecht is quoted as: “If it really is down, and if it’s down for some reason—and it’s a good reason—then we ought to try to make sure that we can improve on it. If it’s down because going to the courthouse is too expensive and people have just given up on trying to get there, then that’s a bad reason, and we should try to get the cost down.”

What are your thoughts? Why are the civil trial filings down? To paraphrase Chief Justice Hecht, is this good or bad?

Words matter: litigation isn’t a battlefield

My professional history is as a litigator. I’ve heard people use battle-related terms in the litigation context. I even had the experience of hearing this type of language from a law school student looking for a job. “Why do you want to be a litigator?” I asked the applicant. “Well,” he said, “litigation is the only way you can legally crush your opponent” he replied in a raised voice with a fist on the conference table.

The student wasn’t hired.

Michael Maslanka writes in the Texas Lawyer that we shouldn’t use battle-related terms in litigation, citing John Pollack’s “Shortcut: How Analogies Reveal Connections, Spark Innovation, and Sell Our Greatest Ideas.”

Mr. Maslanka is right.

Words matter.

Often times in mediation, I’ve encouraged the parties to leave their “shields and swords at the door” and that for the time here at the mediation, our goal is different. Our goal isn’t to injure each other but to draw a truce and resolve the conflict.

Frankly, I’ve never liked the battle-related terms used in litigation if for no other reason, it’s not a real battle. There are people who’ve honorably served this country in battle, taking bullets, losing limbs, and losing life in significant, horrific ways.

Litigation shouldn’t be that way and we shouldn’t use that language. I’ve always viewed litigation as a problem in search of a solution. As Maslanka points out, with war there must be a winner and a loser. There must be good versus evil.

Litigation (and mediation) is about resolving disputes.

Look at how successful family law mediators use language. They don’t refer to “parties” or “petitioner” or “respondent” or “custodian”. They use words like “mom” and “dad.” That makes a difference, doesn’t it? It changes perspective and it changes how we approach the situation.

Words matter. Let’s use accurate words to describe the situation.


Pre-lawsuit mediation

This coming Monday, I’ll be part of a panel discussion on “Pre-litigation Mediation” at the Dallas Bar Association’s Alternative Dispute Resolution Section’s meeting. I’m honored to be part of the discussion.

The other panelists and I have been discussing the presentation over the phone and we’ve developed some good topics to discuss.

But I’d like to hear from you. What are your thoughts on pre-litigation mediation? How do you use it? What have been your experiences with it?

Please let me know before Monday!

Whether the vanishing (civil) jury trial?

The newest issue of the Texas Bar Journal covers the topic of the “vanishing jury trial.” This is a topic that has been on the minds of attorneys and judges for some time. It seems that those who write on the issue, for the most part, say that more civil jury trials are needed so that young attorneys can obtain trial experience, we need more trials in the system so the common law can continue to develop, and well, civil jury trials are just good things to have. I have tremendous respect for those who write on this subject.



But is there any proof to support their assertions?

It seems to me that the proof is in the pudding. As you know, I’m an advocate for mediation because of its inherent benefits. I’m also an advocate for our civil justice system, including civil jury trials. Some cases just need to be tried, and that’s okay. Go for it.

As I reflect on this topic, it seems to me that I’ve been looking at this issue of the vanishing civil jury trial from the wrong perspective. The fact that civil jury trials are decreasing means that the market–people–simply don’t view civil jury trials as important or necessary or economical as they once did.

Some who write about the vanishing civil jury trial will make the occasional remark that mediation is a reason for the vanishing civil jury trial. They view mediation as an obstacle to jury trials. These advocates of more civil jury trials want to limit people’s ability to use mediation or other alternatives to litigation, essentially saying “Let’s create systems that force people to go to trial, let’s limit their ability to conduct discovery, let’s limit the amount of time they have to present their case, and limit their ability to choose how to resolve their disputes.”

They are also saying that we need more civil trials so that advocates in mediation can properly inform their clients of the risks of going to trial–that the advocates need personal experience in a trial (maybe in an unrelated issue of law or fact?) so they can inform their client at mediation that going to trial may be risky.

I must admit I don’t understand this line of thinking. Do you know the risk of being in an automobile accident today with any degree of certainty? Have you been in an automobile accident? Well, then, maybe you shouldn’t drive because you don’t know the exact risks of having an accident.

Most good attorneys I know spend a lot of time on jury selection because they know that a jury’s make up can help determine a case’s outcome. If one wants information about what juries do, one can subscribe to one of the many fine jury reporting services to see how local juries view cases. You don’t have to subject yourself, and clients who don’t want to try cases, to trials so you can have unique, anecdotal evidence about a jury or whether one judge will allow in a particular piece of evidence or sustain a particular hearsay exception. An individual attorney’s experience with jury trials still presents a small sample size that may not be statistically reliable. I think the stronger argument is to study the jury reports to see what juries really do, with a larger sample size, instead of relying upon one’s own limited experiences. I know good mediators who subscribe to these jury reports and provide them to the parties and advocates during mediation.

If civil jury trials were more economical, faster, predictable, less stressful, improved opportunity costs, and ensured better justice, people (clients and attorneys) would be clamoring for them and lining up at the courthouse to file and try cases like people line up outside an Apple store for the release of a new iPad or iPhone.

But they aren’t, and it’s because they have an alternative.

People—clients and the professionals who are advising clients—want mediation and other alternatives to traditional litigation and the best evidence of this is that civil jury trials are “vanishing” (by the way, civil jury trials aren’t vanishing–it’s simply that there are fewer of them occurring now than in the past). According to the Texas Lawyer, filings are down 17% over the last 10 years.*

We’ve had jury trials in this country since its founding. Over 200 years of experience with civil jury trials. The fact that there are fewer civil jury trials, and that case filings are going down, can be suggestive of many things, but none of them are necessarily “positive” in the sense that the civil jury trial is the better mousetrap.

The bottom line is mediation (and other forms of non-litigation dispute resolution) works and people want to use mediation, more than using trials, to resolve their disputes.

One of the nice things about life is that we can improve. Disruptions happen. Those who made buggy whips saw their market disappear because of the development of the car. We no longer have 8-track tapes. Do we see people bemoan the vanishing buggy whip economy or bulky cartridges of music? I’m sure there are some, but we also know that cars and digital music are better products. The market’s spoken on these items.

We know that having a neutral third-party provides significant settlement advantages to parties to a dispute: the parties can save face, the neutral is the one who carries the bad news, the neutral can evaluate for those who want that, resolutions can be more creative than what’s available in a court, opportunity costs are improved, and some people simply appreciate the privacy mediation allows, compared to the public nature of a civil trial.

Forcing people to try civil cases that they don’t want to try isn’t the answer. The market—the people—have spoken. We don’t need to “fix” the system so they’ll want more of what only some of them want. The answer, and our energy, needs to be on training advocates and clients on how to negotiate better, how to create value, and perhaps most importantly, providing systems so that clients have the freedom to choose the manner that will help them best resolve their dispute.

Try the matters that need to be tried. Arbitrate the matters that need to be arbitrated. Mediate the matters that need to be mediated. Negotiate the matters that need to be negotiated. Focus on the client’s interests first.

Special thanks to my friend and colleague, John DeGroote for his insightful thoughts and help with this issue. But the opinions in this blog are mine. Don’t be upset with him. Similarly, the opinions in my blogs are mine and don’t represent anyone or any organization that I’m associated with.

* Note: Forbes reports today that McDonald’s sales are down 1.7% in February, marking nine months of decline. McDonald’s response isn’t to force people to eat at its restaurants. Instead, the company said ““McDonald’s current performance reflects the urgent need to evolve with today’s consumers, reset strategic priorities and restore business momentum.” McDonald’s is responding to the market. Should the civil justice system be any different?