FRAUD STOPPERS PMA Mortgage Foreclosure Defense Blog Update May 30, 2017


Settlements on Appeal

Joseph L.S. St. Amant

The Dispute Resolution Pyramid


Everybody understands that settlements are an important part of the litigation process. The vast majority of cases never reach judgment – they are settled somewhere along the way. What is perhaps less obvious, however, is the overwhelming extent to which the law’s enforcement of rights and obligations depends on agreed resolutions – settlements – in order to work effectively.

The judicial system does provide a means of invoking, as a last resort, the armed might of the state to settle a private dispute. If necessary, the government will send somebody with a gun to put the winning litigant in possession of Blackacre, or to seize the goods of the loser and sell them at auction on the front steps of the courthouse in order to obtain money to pay his debts. Ordinarily, however, these extreme measures are not necessary.

Instead, the judicial system normally operates by giving the parties enough information about what would happen if the matter were taken to the ultimate resort to allow them to reach their own resolution. Most of the time, published decisions in other cases provide this information. People pay their bills as a matter of course. Everybody knows that the courts are there, and it is obvious what the result would be if an attempt were made to contest a routine debt arising out of a routine transaction.

In a small fraction of cases, litigation is necessary because the parties do not agree about what a court would be likely to do. Usually, however, the processes of pleading, discovery and motion practice provide enough additional information to bring the parties together. Thus an even smaller fraction of cases requires the additional information that will be provided by a trial. The judicial system is organized in a manner that reflects this pyramidal system of dispute resolution.

There are fewer judges of the courts of appeals than there are trial court judges, and there are even fewer judges on the Supreme Court. At each succeeding level, fewer cases can be processed to a final resolution. But at every stage, more information becomes available to help the parties reach a resolution themselves. Read more.


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