Statistically speaking, the first part basically already happens. 90-97% of civil cases in the US settle before trial.
In a system that depends on interpreting unique fact patterns and evaluating and weighting “real-world” evidence with varying levels of subjectivity, I’d say that’s already as predictable as it’s supposed to be. What’s left has to do with inherent uncertainty on that 3-10% of close cases and clients with differing risk profiles (and pettiness), more so than it does with scummy lawyers bullshitting their clients, though TBF that definitely happens.
If anything, the issue with adversarial civil litigation generally, and the American system specifically, is that any uncertainty whatsoever breaks so drastically in favor of the party with more resources that reasonable claims settle when they had an excellent (but not guaranteed) chance at trial.
The reason the court us there is because the two parties can’t agree on a thing.
Right on New Year’s Eve the house party I was at had an argument with another party three houses away about which would win a tennis tournament and we really needed a court.
Exactly.
The fact that lawyers and a jury are needed does indicate that justice is about showtime arguments rather than the clockwork application of the law to the facts by a judge.
The way the legal system is supposed to work in the US is that juries decide on matters of fact. Lawyers are responsible for bringing evidence into court through the testimony of witnesses. Judges are responsible for ensuring that both sides play by the rules and ensuring juries aren’t exposed to evidence not related to the decision at hand.
The other lawyers are already involved before settling out-of-court.
Right—settlements result when both parties agree on the likely outcome of a court case (with the advice of their lawyers).
Trials result when each side’s lawyers convince their clients that the other side’s lawyers have misjudged the likely outcome.
