Why ADR? Booby Traps in Arbitration Practice and How to Avoid Them – Vol. 5 No. 1-4

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AuthorTom Arnold*

Published: December 1994


Description: Now hear this from the former Chief Justice of the United States Supreme Court, Warren E. Burger:
Our litigation system is too costly, too painful, too destructive, too inefficient for a civilized people.
Would you recommend to your client a system so schlocky as to beget that quote from its highest officer?

Do I believe that quote? Yes!

Because I had one case working for 27 years. Five remands to the trial court. Five petitions for writ of certiorari. A simple one patent case on a simple oil well drill bit. Budgeted in the currency of when the case started, at $50,000 and two years, it cost millions and 27 years — a dispute resolution horror story.

I believe the Burger quote because twice I have handled the appeal of cases that had started 14 years earlier. Because I have twice experienced a seven-year lapse between close of evidence and entry of trial court judgment. And twice more a four-year lapse and twice more a two-year time lapse after the close of evidence before the judgment. All in cases where a timely injunction — a timely injunction — was the most important remedy. I have known interruption of months between Plaintiff’s evidence and Defendant’s evidence. I cannot believe that evidence heard a semester ago was remembered as well as evidence heard a month ago.
The estimates for Polaroid v. Kodak: $100,000,000 per side of a patent infringement suit that took over 12 years to dispose of, if I recall correctly. — Each party’s budget being off by substantially over $50,000,000.

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*Chairman, ADR Committee, Licensing Executives Society International (LES); Arnold, White & Durkee, Houston, Texas.