I came in this morning to an email from my partner, Justin Gilbert. Justin lost a jury trial last week in Decatur County Circuit Court, and offered some insightful thoughts about the experience in a short article he entitled, “Please Just Give Me a Trial by Ambush.” Here’s an excerpt:
The point is this: The cost of our normal legal rules is a price too steep for most
Tennesseeans. Often, we cannot enforce our laws because it is too expensive to follow our rules.
Today, motions for summary judgment — intended to weed out frivolous cases and
conserve on the cost of litigation — are filed in every discrimination case. Most
depositions are taken not because they are needed to better understand a case; they are taken to mount and respond to summary judgment. And electronic discovery requirements can overwhelm, regardless of the actual merits or size of the case.
Many employment discrimination cases do settle, particularly if it’s done early.
But something is fundamentally unsettling where the basis for the settlement is the
monetary price of the alternative: Our own judicial system. It makes companies feel
“extorted” by the judicial system. And employees feel cheapened because their
discrimination complaints are processed by system costs.
I’ve practiced fifteen years now. I had grown accustomed to, if not wary of, some
of the rules and their costs to individual claimants in Tennessee. If my recent experience was a “trial by ambush,” or one resembling “the days of old,” can you please just give me some more of that?